Date: 20100617
Docket: T-1773-09
Citation: 2010 FC 663
Ottawa, Ontario, June 17,
2010
PRESENT:
The Honourable Mr. Justice Martineau
BETWEEN:
ABDELOIHED AZZIZ
ZAKIA MESBAHI
FARID AZZIZ, MINOR
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicants are challenging the legality of the decision dated October 15, 2009,
by Denise Couture, analyst, of the Case Management Branch, Citizenship and
Immigration Canada (the analyst), refusing to issue a citizenship certificate
to Farid Azziz (Farid or the child).
[2]
The
analyst found that the child was not a “person…born outside Canada after
February 14, 1977 and at the time of his birth one of his parents…was a citizen”.
Farid is therefore not a Canadian citizen under paragraph 3(1)(b) of the Citizenship
Act, R.S.C.1985, c. C-29 (the Act); hence this application for judicial
review.
I – LEGAL FRAMEWORK
[3]
According
to paragraph 3(1)(b) of the Act, any person born outside Canada after
February 14, 1977, and at the time of the person’s birth one of the
person’s parents was a Canadian citizen is automatically a Canadian citizen by
birth. In such cases, under subsection 12(1) of the Act and subject to any
regulations made thereunder, the Minister of Citizenship and Immigration (the
Minister) issues a certificate of citizenship to any citizen who has applied
for one. In practice, the certificate is issued to the citizen after his or her
application has been reviewed by a citizenship officer exercising the powers
conferred by the Minister under section 23 of the Act.
[4]
In
this regard, section 10 of the Citizenship Regulations, 1993, SOR/93-246
(the Regulations) specifies that the application for a certificate must be made
in prescribed form and filed together with evidence that establishes that the
applicant is a citizen and two photographs of the principal applicant. That
said, the applicant must furnish any additional evidence that may be required
to establish his or her citizenship (section 28 of the Regulations).
[5]
In
practice, the Department has developed guidelines that specify, where
applicable, who may submit an application for a certificate and what evidence
is usually considered acceptable to establish that a person meets the
conditions set out in the Act and the Regulations. For the purposes of this
judgment, let us mention the following: Citizenship Policy Manual,
specifically Chapter CP 3 – Establishing Applicant’s Identity (Manual CP 3) and
Chapter CP 10 – Proof of Citizenship (Manual CP 10); Consular Manual CP
17 (Manual CP 17); and Operational Bulletin 154 (Bulletin 154).
[6]
Visa
offices and consular missions abroad are authorized to receive applications for
certificates of citizenship (proof of citizenship) submitted outside Canada by an
applicant. However, the final decisions are generally made at the Citizenship
and Immigration Canada (CIC or Department) Case Processing Centre located in Sydney, Nova Scotia (CPC-S). That
said, Passport Canada may issue a limited validity passport to
children under two years of age for whom proof of citizenship has never been
issued, provided that it is established that the child is a Canadian citizen,
which is not the case here.
II – FACTUAL BACKGROUND
[7]
Abdeloihed
Azziz (or Aziz, according to his certificate of citizenship) is a Canadian
citizen. He is married to Zakia Mesbahi, who is also a Canadian citizen. On
March 19, 2009, they went to Morocco, their country of
origin. Farid was born in Casablanca on March 30, 2009.
According to the birth certificate issued by the Moroccan authorities, Farid is
the presumptive son of the couple.
[8]
On
May 6, 2009, Mr. Azziz submitted to the Canadian embassy in Morocco (the Embassy)
an application for a certificate to which he attached proofs of citizenship for
himself and for Ms. Mesbahi, their marriage certificate, the child’s birth
certificate, and a notice of birth signed by a midwife.
[9]
However,
the Embassy staff responsible for processing the application had doubts about
the truthfulness of the entries in the documents submitted. The advanced age of
Ms. Mesbahi (who was 51 years old) and the fact that Farid was not born in a
hospital gave rise to some serious questions. A consular officer contacted Mr.
Azziz, who explained to him that Farid had allegedly been conceived following in
vitro fertilization at the Royal Victoria Hospital (Hospital)
in Montréal in the summer of 2008.
[10]
Ms.
Mesbahi authorized the Embassy to contact the Hospital (as well as the OVO Clinic,
a private clinic in Montréal where she had also planned to have fertility
treatments). However, the Hospital checked its records but found no file on Ms.
Mesbahi. The couple was also unable to provide proof of payment for the in
vitro fertilization treatment.
[11]
Mr.
Azziz explained, in the affidavit he submitted in support of this application,
that the couple had been the victims of fraud on the part of the physicians at
the Hospital. The physicians allegedly told the couple to pay cash in exchange
for a reduced treatment fee and then disposed of Ms. Mesbahi’s file.
[12]
Given
Mr. Azziz’s insistence on obtaining the requested proof of citizenship for
Farid, the Embassy referred the file to the Citizenship and Immigration Canada
Case Processing Centre located in Sydney, Nova Scotia (CPC-S),
and suggested that a DNA test be administered to establish parentage between the
child and one of his presumptive parents.
[13]
On
June 22, 2009, the application for a certificate was apparently received by the
CPC-S, but nothing occurred in the file before the beginning of August. Given
its complexity, the file was referred in early August 2009 to Denise Couture
(the analyst), who works in Ottawa at the CIC Case Management Branch.
[14]
In
this case, the analyst acted as a citizenship officer. She was fully authorized
to make a final decision on behalf of the Minister.
[15]
On
August 5, 2009, Mr. Azziz sent the following new documents to the Department
(new evidence):
(a) A
medical certificate dated July 14, 2009, from Dr. Maan Malouf, a Montréal gynaecologist
who had treated Ms. Masbahi from March 2000 for infertility and fibromas. He
also performed a myomectomy (removal of part of the muscles of the uterus) on
Ms. Mesbahi in 2007. However, he never treated her following the in vitro fertilization
treatment she supposedly received in June or July 2008. Ms. Mesbahi’s last
visit to his office was in August 2008. It appears that Ms. Mesbahi then had a
uterus consistent with that of a 10-week pregnancy. However, he relied on Ms.
Mesbahi’s statement that she was pregnant. No pregnancy test or ultrasound was
administered to corroborate whether Ms. Mesbahi was indeed pregnant at that
time.
(b) Three
medical documents from Morocco, all dated March 23,
2009. They are a liaison chart from an emergency physician, a prescription, and
a consultation note from a gynaecologist who apparently examined Ms. Mesbahi.
In this latter document, the gynaecologist, Dr. Aicha Hakdaoui, certified that
this was an [TRANSLATION] “uncomplicated” pregnancy of about 38 weeks.
[16]
However,
the new evidence did not dissipate all of the analyst’s doubts. In her
affidavit, the analyst explained why Dr. Malouf’s certificate was not
conclusive, and that she had serious reasons for believing that the three
Moroccan medical documents were fabricated. Moreover, in August 2009 she went
to the trouble of requesting written confirmation from the Hospital of any
medical treatment received by Ms. Mesbahi. In fact, Ms. Mesbahi did not receive
any in vitro fertilization treatments in 2008. Given the insufficiency
of the evidence submitted in support of the application for a certificate, the
analyst asked Mr. Azziz on August 31, 2009, to provide certificates from the gynaecologists
that Ms. Mesbahi purportedly consulted during the other months of her alleged pregnancy.
Ultrasounds could also confirm that the in vitro fertilization treatment
succeeded.
[17]
In
the meantime, the analyst requested the assistance of Dr. Shaun Gollish, M.D.,
FRCS (C), Acting Director of Strategy, Policy and Communication at the
Department. Dr. Gollish confirmed that, in the case of an in vivo fertilization
treatment, the mother’s ovum is fertilized using a donor’s sperm inseminated in
the uterus; a DNA test of one of the parents with the child could therefore
prove the child’s parentage. However, an in vitro fertilization treatment
is a more complex process; although the sperm of the natural father, or that of
an anonymous donor, may be used in the external fertilization process, usually
an ovum of the natural mother will be used.
[18]
Dr.
Gollish’s conclusions are definite: given Ms. Mesbahi’s advanced age and her
previous gynaecological problems, and in the absence of evidence confirming the
in vitro fertilization treatment, Dr. Gollish did not believe that a
fertilized egg could have been implanted in her uterus. Incidentally, the
evidence in the record does not make it possible to clearly establish in what
manner the alleged donation of ova was obtained and handled, where applicable,
by the Hospital. It is not clear whether there was an anonymous donor (an advertisement
by the couple published in a newspaper shows that they were looking for an egg
donor).
[19]
At
the same time, in August 2009, the analyst discussed her doubts in various
telephone conversations with Mr. Azziz or his counsel. Mr. Azziz was very
aggressive at that time and the analyst made sure that there was a third person
present during the interviews. In addition, administrative measures had to be
taken to filter the calls from Mr. Azziz, who was insistent and stepped up the
number of calls or threats. In fact, the senior administrative assistant
complained to management that Mr. Azziz had threatened her that [TRANSLATION]
“he will go to the media and cut off his fingers to get attention” and
[TRANSLATION] “another time he was going to commit suicide in front of the CIC
building” (internal memo dated August 27, 2009, by Denise Jackson).
[20]
Despite
the analyst’s written request of August 31, 2009, to obtain the documents
indicated, Mr. Azziz, who in the meantime had retained the services of a
lawyer, refused to submit any further documents or DNA evidence. The
explanations provided by Mr. Azziz or his counsel for not submitting DNA
evidence varied over time. These explanations were confusing and contradictory
and were not corroborated by any medical expertise.
[21]
For
example, Mr. Azziz explained in his affidavit that he had consulted genetic
testing specialists in Morocco. He explained that at
that time he wanted to submit irrefutable DNA evidence to the Embassy in order
to end once and for all [TRANSLATION] “an unnecessary argument”.
[22]
At
paragraph 33 of his affidavit, Mr. Azziz went on to say the following:
[TRANSLATION]
Unfortunately, the two specialists that I
consulted, Professor CHADLI of the Pasteur Institute in Casablanca and Professor SOUFIANE of the
ENAKHIL Clinic in Rabat, told me that a DNA test
would be pointless because of the genetic manipulations that led to the birth
of my son. Since it was not my sperm and since ova from a third person were
used, a genetic test would not make it possible to irrefutably establish that
my wife and I are the biological parents of Farid.
However, Mr. Azziz did not provide any documentary evidence
from the specialists in question confirming that they had been consulted or
setting out their medical opinion on the subject.
[23]
In her
affidavit, the analyst also questioned the truthfulness of Mr. Azziz’s
allegations regarding the exclusive use of sperm from an anonymous donor.
Referring to notes taken during telephone conversations she had with Mr. Azziz
or his counsel and that are reproduced in the Certified Tribunal Record of the
court (CTR), the analyst mentioned the following at paragraphs 21 to 23 of her
affidavit:
[TRANSLATION]
I consider it surprising that the
applicant clearly stated at paragraph 12 of his affidavit that he had agreed to
sperm from a donor being used for the fertilization treatment given that from
the start of our conversations and up to the refusal of the application, Mr.
Aziz always maintained that he was uncertain whether it was his sperm, that of
a donor, or a mixture of the two that had been used. That is why the DNA test
was suggested to confirm that Farid is his natural child. Further, it appears
from my notes in the file, at pages 26 and 27 of the file, that Mr. Aziz was
initially reluctant to undergo DNA testing because he said that he did not have
the means to pay for it. In this case, I was willing to give him time to have it
done (CTR, pages 17, 26, 27, 28 and 29).
In response to paragraph 33 of Mr. Aziz’s
affidavit, I submit that Mr. Aziz did not provide any document from these two
specialists in Morocco indicating that a DNA test
would be pointless because of genetic manipulations. Further, just what
information was provided to these specialists is unknown. However, I agree that
if neither Mr. Aziz’s sperm nor Ms. Mesbahi’s ova were used, there is no point
in requesting a DNA test. This was in fact confirmed to me by our Medical
Services (CTR, page 71).
If Mr. Aziz had stated at the outset during
our telephone conversations that donor sperm had been used, I would not have
insisted on proceeding with the DNA test because it is obvious that, with an
egg donor and a sperm donor, this test is pointless. But Mr. Aziz continued to
insist that he was uncertain as to whether his own sperm had been
used. That is why Mr. Aziz was asked to take a DNA test, given his uncertainty
about this and given the lack of any document on the in vitro fertilization.
According to his own version of the facts at that time, if his sperm had been
used, the DNA test would have established the genetic relationship between
father and child and the matter would have been settled.
[24]
At the end
of the day, the analyst did not believe that Ms. Mesbahi was pregnant and gave
birth to the child, which is enough to reject the documents submitted by Mr.
Azziz in support of the application for a certificate. Finding that the couple
had not submitted the [TRANSLATION] “required documents” and that the
documents in the record did not constitute evidence that Farid was indeed the [TRANSLATION]
“natural child” of Mr. Azziz or Ms. Mesbahi, the analyst refused to
issue a certificate of citizenship since Farid was not a “person…born outside
Canada after February 14, 1977 and at the time of his birth one of his parents…was
a citizen”. The analyst so informed the applicants’ counsel by letter dated
October 15, 2009 (final decision).
III –ISSUES AND STANDARD OF REVIEW
[25]
In the
case under review, the applicants contend that the analyst’s final decision dated
October 15, 2009, was made without regard for the evidence before her and that
the entire decision-making process was of a nature to give rise to a reasonable
apprehension of bias. In this respect, the applicants stress that the analyst’s
final decision and the process that led to it were, for the purposes of
judicial review, an [TRANSLATION] “indivisible whole”, while the requests for additional
evidence made by the Canadian authorities were abusive and showed that they
were biased. Moreover, throughout the process, the government employees
involved expressed their prejudice and acted in a hostile manner towards Mr.
Azziz.
[26]
However,
the respondent submits that, although parentage may be established by a birth
certificate, additional evidence, including a DNA test, may be required in
cases of doubt. Given the many credibility problems in this file, the Canadian
authorities were rightly entitled to require other documentary evidence and
even a DNA test to prove the child’s parentage. In the case at bar, the
applicants did not discharge the burden of proving that Farid is a Canadian
citizen. Moreover, there is no apprehension of bias or breach of any principle
of procedural fairness. Instead, it was Mr. Azziz who was agitated, impatient
and aggressive, while the analyst remained patient, courteous and understanding
towards him.
[27]
Having
analyzed the standard of review based on the usual tests, I am of the opinion
that the correctness standard applies to the questions of law raised in this
case, while the reasonableness standard applies to the findings of fact regarding
which the analyst has recognized expertise. The questions of procedural
fairness or bias are subject to the standard of correctness.
[28]
In this
respect, an analyst’s decision concerning the sufficiency of the evidence
submitted by an applicant to confirm the citizenship of a person is
reasonableness (Worthington v. Canada, 2008 FC 409, [2009] 1 F.C.R. 311
at paragraph 63). The reference to the standard of “correctness” in the
published French version of this decision, which was rendered in English by my
colleague Justice O’Keefe, was a translation error that has since been
corrected. (The text appearing on the Court’s Web site, at http://decisions.fct-cf.gc.ca/fr/2008/2008cf409/2008cf409.html,
incorporates this correction.)
[29]
With regard
to the question of apprehension of bias on the part of an administrative
decision-maker, the appropriate answer is that which would be given by “an informed person, viewing the matter realistically and
practically—and having thought the matter through”. The apprehension of bias
“must be a reasonable one, held by reasonable and right minded persons,
applying themselves to the question and obtaining thereon the required
information” (Committee
for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at page
394, Grandpré J., dissenting; see also Valente v. The Queen, [1985] 2 S.C.R.
673 at page 685).
[30]
For the
following reasons, this application for judicial review must fail.
IV– REASONABLENESS OF THE FINAL DECISION
[31]
Let us
first examine the respective arguments made by the applicants and the
respondent regarding the sufficiency of the evidence submitted by the
applicants to show that they are the natural parents of the child.
Applicants
[32]
The
applicants’ basic argument in order to have the analyst’s final decision set
aside is that the documentary evidence originally submitted to the Embassy was
sufficient to find that Farid was indeed the couple’s son and that the Embassy
and the analyst arbitrarily disregarded or failed to consider this evidence. In
addition, the Canadian authorities erred and acted in a perverse or capricious
manner by insisting, throughout the processing of this file, on a DNA test as
proof of parentage.
[33]
Relying on
M.A.O. v. Canada (Minister of Citizenship and Immigration), 2003 FC 1406, 242 F.T.R. 248
(M.A.O.), the applicants stress the exceptional nature of DNA evidence.
According to them, it was inappropriate to require it in this case, given that
it probably would not have been convincing since both the ovum and possibly the
sperm used during the in vitro fertilization treatment resulting in the
birth of Farid came from anonymous donors. In these circumstances, the Embassy’s
and the analyst’s insistence on a DNA test amounts to bad faith.
[34]
The
applicants also note that the Department does not have any specific policy
concerning cases in which assisted reproduction technologies are used. The ordinary
policies concerning children of Canadian citizens who are born abroad provide
that parentage can be proven through a birth certificate issued by the
authorities of the country of the child’s birth. These policies provide for the
use of a DNA test only in cases of doubt.
[35]
According
to the applicants, the preferred role of the birth certificate is confirmed by article
523 of the Civil Code of Québec (C.C.Q.), the first paragraph of
which provides that “[p]aternal filiation and maternal filiation are proved by the act of
birth, regardless of the circumstances of the child's birth”. In the case at
bar, the applicants submitted Farid’s birth certificate, which states that Ms.
Mesbahi is his mother. The notice of birth signed by the midwife also confirms
this.
[36]
Relying on
the case law, the applicants contend that a document issued by a foreign
authority, such as Farid’s birth certificate in this case, must be presumed
valid. In any case, the respondent has not questioned the authenticity of the
birth certificate. Since there is no evidence of its invalidity, it must serve
as proof of its contents. Thus, the Canadian authorities could not
[TRANSLATION] “take the place of the local authorities by making decisions
concerning the child’s parentage in their stead”.
[37]
In so
doing, the applicants argue that the Canadian authorities conducted an
[TRANSLATION] “unwarranted and arbitrary inquisition”, questioning the couple’s
personal choices. The applicants argue that the public administration cannot invade
a citizen’s privacy in this way. Justice Dickson (as he then was), in Hunter
et al. v. Southam Inc., [1984] 2 S.C.R. 145, at pages 159-160 (Southam),
referred to the “public’s interest in being left alone by government”.
[38]
In the
case at bar, the applicants contend that Mr. Azziz was forced against his will
to reveal to the consular officer at the Embassy that the couple had resorted
to in vitro fertilization and other private details concerning their
health and finances. This information was therefore obtained inappropriately
and cannot be used against the applicants by the Canadian authorities.
[39]
In any
case, according to the applicants, the new evidence submitted in August 2009 to
the analyst – Dr. Malouf’s certificate and the Moroccan medical documents – confirm
Ms. Mesbahi’s pregnancy. The analyst’s doubts about the authenticity of the
Moroccan medical certificates are unwarranted because she is not a handwriting
expert and is not familiar with the structure of Moroccan hospitals. Moreover,
the Embassy could have – and should have – checked with the physicians in
question, but nothing indicates that it did so. The new evidence and the
documents previously submitted by the applications were [TRANSLATION]
“arbitrarily disregarded” by the analyst.
Respondent
[40]
The
respondent contends that any consular officer or analyst responsible for
examining an application for a citizenship certificate is required to ask for
additional documentary evidence or a DNA test when parentage is questionable,
as it is in this case. The respondent asserts that the more the Embassy or CIC
asked for evidence concerning Farid’s birth, the more the information provided
by the applicants raised doubts. Thus, the couple did not discharge the burden
of showing that Farid is the natural child of either of the presumptive parents.
The analyst’s negative finding is a possible outcome and is reasonable in the
circumstances.
[41]
The respondent
stresses the lack of any evidence in the record concerning the purported in vitro
fertilization that took place at the Hospital, despite numerous attempts to
verify this. Mr. Azziz’s explanation in his affidavit that the couple were the
victims of fraud is not viable. The Court must not give credence to the
applicants’ gratuitous allegations, especially given that they are not
supported by any evidence, such as written correspondence between the
applicants and the Hospital or legal proceedings undertaken by the applicants
against the Hospital and the physicians in question.
[42]
Moreover,
the respondent asserts that the Department’s medical experts had serious
reservations about Ms. Mesbahi’s ability to undergo in vitro fertilization,
given the complexity of such a procedure and Ms. Mesbahi’s previous medical
record, which shows that she underwent a myomectomy in 2007. Nor is there
tangible evidence of Ms. Mesbahi’s pregnancy in the record. Dr. Malouf’s
certificate is not conclusive. Dr. Malouf merely observed that Ms. Mesbahi’s
uterus was [TRANSLATION] “consistent with that of a 10-week pregnancy”. Moreover, there is no
evidence that, even if Ms. Mesbahi was truly pregnant at the time she consulted
Dr. Malouf, her pregnancy went to term.
[43]
The
respondent points out that Dr. Malouf, who did treat Ms. Mesbahi from 2000, did
not see her again after the consultation in August 2008. In fact, it seems that
she did not have any medical treatment during all the months of her pregnancy,
which is very surprising given her advanced age and the risk of complications
due to her health problems and the in vitro fertilization. Mr. Azziz’s
explanation to the effect that his wife had allegedly entrusted herself to
God’s will is implausible, because Ms. Mesbahi had regularly consulted Dr.
Malouf in the past and apparently had no objection to a gynaecological
follow-up prior to her pregnancy.
[44]
Finally,
the respondent contends that it was reasonable for the analyst to doubt that a
mother concerned with her health and that of her unborn child would expose
herself to the risk associated with a long plane trip, without medical
authorization, at 38 weeks of pregnancy and that she would choose to give birth
with a midwife rather than in a hospital. Again, Mr. Azziz’s explanation that his
wife preferred giving birth in Morocco and that she did not want a
caesarean in a hospital there (because she did not want a scar and the couple
did not have the money to pay for the operation) is not plausible. Considering
the risks of complications, Ms. Mesbahi’s advanced age and the fact that Mr.
Azziz said that the couple had already agreed to pay over $23,000 in Canada for the in vitro fertilization,
the analyst could reasonably dismiss Mr. Azziz’s explanations.
[45]
Given the
serious doubts raised by all of these circumstances, the respondent contends
that the documents provided by the applicants could not be determinative;
however, the analyst did take everything into account before making her final
decision. The respondent notes that the analyst explicitly referred to Farid’s
birth certificate in her decision. The midwife’s notice of birth is mentioned
in the notes in the file and the letters sent to Mr. Azziz, which shows that it
was considered. The certificates of Dr. Malouf and the Moroccan physicians were
also considered by the analyst, as it appears in the notes in the file.
[46]
Regarding
the Moroccan medical certificates, the analyst notes in her affidavit that they
contain inconsistencies that raise doubts as to their authenticity. Two of
these documents were allegedly signed by the same physician, on the same day,
in two different hospitals. It also seems unlikely that the gynaecologist
consulted by Ms. Mesbahi could have diagnosed an [TRANSLATION] “uncomplicated”
pregnancy when the consultation in fact occurred further to complications that
brought Ms. Mesbahi to emergency.
[47]
Finally,
the respondent dismisses the applicants’ arguments that Farid’s birth
certificate was sufficient evidence of his parentage and that they could not be
required to submit other evidence, particularly a DNA test. The authenticity of
a foreign document, such as a birth certificate, can always be questioned.
Moreover, such a document may be authentic without its contents being true,
especially if it was obtained [TRANSLATION] “illegally, fraudulently or in a suspicious
manner”. Under these circumstances, its probative value is reduced.
[48]
Given the
insufficiency of the evidence submitted by the applicants, a DNA test could have
proven to be a way of resolving the situation. If Mr. Azziz’s version of the
facts is to be believed, Mr. Azziz said that he was not certain whether it was his
sperm or that of a donor that had been used for the in vitro fertilization
(and even this fact was not revealed right from the beginning). Thus, there is
at least one possibility that a DNA test would establish that Farid was indeed
his son, and the analyst’s proposals that Mr. Azziz undergo such a test did not
amount to administrative [TRANSLATION] “hounding”.
Analysis
[49]
Following
my analysis of the parties’ respective arguments about the issue of the
sufficiency of the evidence, I am not convinced in this case that the consular
officer and the analyst made a reviewable error by requiring additional
evidence from the applicants. The analyst’s final decision is reasonable in the
circumstances. In this regard, the Court accepts all of the respondent’s
arguments in this case.
[50]
It should
be remembered that, in reviewing the lawfulness of an administrative decision
on a reasonableness standard, as set out by the Supreme Court of Canada, “[t]ribunals have a margin of appreciation within the range of acceptable
and rational solutions. A court conducting a review for reasonableness
inquires into the qualities that make a decision reasonable, referring both to
the process of articulating the reasons and to outcomes. In judicial
review, reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But
it is also concerned with whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at paragraph 47).
[51]
First,
after having examined the reasons for rejecting the application for a
certificate based on all of the evidence in the court record, I find that the
analyst’s final decision is reasoned, that it relies on the evidence (or on its
insufficiency) and that it falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law. In short, given the very
serious doubts about parentage between Farid and one of the applicants, it was
reasonable for the analyst to find that the child born in Casablanca on March
30, 2009, was not a “person…born outside Canada after February 14, 1977 and at
the time of his birth one of his parents…was a citizen”.
[52]
The
applicants place a great deal of emphasis on departmental policies to justify their
arguments that the final decision is unreasonable or otherwise breaches
procedural fairness. In my opinion, the departmental policies are rather
neutral and can be also used to support the respondent’s position in this case.
[53]
Thus, section
5.3 of Manual CP 17 provides that the following documents may be accepted to
establish parentage between a child and a parent who is a Canadian citizen:
·
the
child’s birth certificate showing the name of the child and the name of the
parent; or
·
results of
a DNA test prepared by a company that has been accredited by the Standards
Council of Canada and whose results are accepted by CIC.
[54]
For a
person born outside Canada to a Canadian parent on or after February 15, 1977,
section 2.7 of Manual CP 10 provides that “[the] birth certificate showing
parentage, issued by the responsible government authorities in the country
where the person was born”, together with “proof that a parent was a Canadian
citizen at the time of the person’s birth” usually establishes entitlement to
proof of citizenship.
[55]
Moreover,
section 5.1 of Manual CP 3 mentions that “DNA testing is an acceptable way
to establish parentage in cases in which the documentary evidence is
insufficient or impossible to find”. [Emphasis added.]
[56]
Finally,
according to Bulletin 154, in an emergency, even in the absence of a
certificate of citizenship or a Canadian passport, a visa officer at a consular
post abroad may issue a “facilitation visa” to presumptive Canadians under 18
years of age who are coming to Canada either to reside with their Canadian
parent(s) or for humanitarian and compassionate reasons. In the latter case,
the minor must be in possession of a valid foreign national passport or travel
document. Satisfactory evidence must be presented to prove that at least one
parent is Canadian and the visa officer must be satisfied of the parent-child
relationship. In this case, the issuance of a facilitation visa will not impact
the minor’s citizenship status and has no effect on the official determination
by CIC on an application for proof of citizenship on behalf of the minor.
[57]
It is
clear from the Regulations and the relevant departmental policies that the
official documents – especially the birth certificate – are the preferred, but
not the only, means of establishing the parentage of a child for whom an application
for citizenship is made under paragraph 3(1)(b) of the Act. DNA testing
is a backup method. Departmental policies are not the Act and cannot in any way
fetter the exercise of the administrative discretion conferred on the
citizenship officer to require other evidence in cases of doubt, as permitted by
section 28 of the Regulations.
[58]
The
administrative decision-maker, be it the visa officer abroad or a citizenship
officer in Canada, must decide whether the documentary evidence in support of
an application for a temporary visa or proof of citizenship, and particularly
the birth certificate of the child for whom the application is made by one of
the presumptive parents, is authentic and sufficient to recognize the child as
a Canadian citizen. In cases of doubt, it is not unreasonable to ask the
applicant for other documents if they may be useful.
[59]
I am of
the opinion that the circumstances of this file are such that a DNA test could
validly be required from the presumptive father, who had always suggested that
his sperm could have been mixed with that of an anonymous donor. Moreover, in M.A.O.,
above, at paragraph 83, Justice Heneghan found that although other forms of
evidence must be considered before DNA evidence, there may be circumstances in
which DNA evidence would be necessary.
[60]
It should
be remembered that, absent a DNA test, the government employees suggested that Mr.
Azziz provide other forms of evidence to corroborate that his wife had indeed
been pregnant (ultrasounds, Hospital record, gynaecological notes from
physicians who followed Ms. Mesbahi’s pregnancy). However, he did not provide
any of these.
[61]
As the
Supreme Court of Canada recognized, the right of a citizen to be left alone by
government “must give way to the government’s interest in
intruding on the individual’s privacy in order to advance its goals, notably
those of law enforcement” (Southam,
at page 160). However, in each case in which a citizen has a reasonable
expectation of privacy, these two interests must be balanced; the government’s
right cannot prevail simply because the government is enforcing the law (Southam,
at page 159).
[62]
In the
case at bar, unlike the situation in Southam, there was no search or
seizure. Generally, the administrative context (such as the case here where an
application is made for a citizenship certificate) is different from the
criminal context. A citizen, in an administrative proceeding, does not benefit
from all the mechanisms available in a criminal proceeding (see, for example, Blencoe
v. British
Columbia
(Human Rights Commission),
2000 SCC 44, [2000] 2 S.C.R. 307, at paragraph 88).
[63]
There is
therefore no question here of imposing on the respondent complex procedural
warnings as the Supreme Court did in Southam. The Canadian authorities to
whom the application for a citizenship certificate, visa or passport is addressed
have full discretion in deciding to proceed with an in-depth investigation when
an application raises serious doubts as to the truthfulness of the information it
contains. Nevertheless, I agree that this decision cannot be arbitrary and must
be able to be rationally supported by the respondent. Deciding otherwise would
mean that mere caprice on the part of a government employee would be sufficient
to force a citizen to reveal private or even embarrassing information that the
government does not have any reason to know. That is not the case here.
[64]
It should
be remembered that a person completing an application for a citizenship
certificate declares that the information provided is true, accurate and
complete. This means that government employees are entitled to ask the
applicant personal questions to ensure that the information contained in the
application is true and accurate.
[65]
That said,
in this case, the consular officer and the analyst did not act in a perverse or
capricious manner by asking Mr. Azziz personal questions and by asking the
applicants for additional evidence. Rather, it is the applicants who, by their
suspicious behaviour, prompted legitimate questions by the Canadian authorities.
Their account is implausible in many respects.
[66]
The
probative nature of the child’s birth certificate to prove his parentage
depends on the plausibility of Ms. Mesbahi giving birth and her physical
condition. In this case, the affidavits in the record show that the Embassy
staff and the analyst were concerned by Ms. Mesbahi’s advanced age and by the
fact that she allegedly gave birth to Farid at a midwife’s instead of in a
hospital.
[67]
Certainly,
the documents issued by a foreign state are presumed to be valid and serve as
proof of their contents, as a matter of comity to that foreign state (see Ramalingam
v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 7241, at paragraph
5). However, this presumption may be rebutted after verifying the authenticity
of the foreign document and the truthfulness of an applicant’s assertions (for
example, Harakrishna v. Canada (Minister of Citizenship and Immigration), 2001 FCT 515, 205 F.T.R. 317).
[68]
To be even
clearer, although the entries in a foreign act of civil status serve as proof
of their contents, their truthfulness may always be challenged by the competent
Canadian authorities, even if the authenticity of such documents is not in
question.
[69]
It must be
remembered in this case that the Moroccan birth certificate and the Moroccan
passport seem to have been issued by the authorities merely on the basis of the
statements of the presumptive parents to the effect that they are the natural
parents of the child, statements that the consular officer and the analyst
could question based on the file as a whole.
[70]
Even in
this Court, the applicants have not produced credible material evidence
concerning Ms. Mesbahi’s presumptive delivery, other than a certificate
provided by the midwife. No person who attended the birth, including the
presumptive mother, provided an affidavit confirming the truthfulness and
accuracy of the entries in the Moroccan act of civil status. Nor is there any
evidence in the court record explaining how the applicants obtained a birth
certificate and a passport for the child from the Moroccan authorities. In
short, we have absolutely no information on how the child’s birth was reported
and who reported it. Like the Canadian authorities, this Court has serious
doubts about the truthfulness and accuracy of the information mentioned in the
semi-authentic documents produced by the applicants.
[71]
In this
case, the respondent is not contesting the birth of the child in Morocco on the date entered on his
birth certificate. What is problematic is the parentage between the child and
one of the presumptive parents. Once Mr. Azziz stated that the child had been
conceived following in vitro fertilization, it was perfectly legitimate
to investigate further.
[72]
There is
nothing reprehensible about considering that, as of a certain age, pregnancy
presents increased risks and that a mother would want to protect herself from
these risks – among other things, by giving birth in a hospital, where she
would receive, if necessary, more advanced care than that provided by a
midwife. Thus, I believe that it was reasonable for the respondent or his
representative to ask for explanations on the subject.
[73]
At the
risk of repeating myself, the applicants had the burden of proving to the
Canadian authorities that Farid was indeed the couple’s natural child.
Paragraph 3(1)(b) of the Act concerns only the natural children of a
parent who is a Canadian citizen at the time of the birth. For example, a child
adopted in a foreign country is not automatically granted citizenship status.
The applicants did not meet this burden to the satisfaction of the analyst and
her final decision is reasonable in this respect.
[74]
Moreover,
the Hospital did not have any records on Ms. Mesbahi, which is very strange and
affects the credibility of the statements made by the applicants that Ms.
Mesbahi became pregnant following an in vitro fertilization treatment.
In the absence of any evidence corroborating the accusations of fraud levelled
by Mr. Azziz, the analyst was perfectly entitled to not attach any weight to
these gratuitous accusations.
[75]
Moreover,
Mr. Azziz’s explanations exclusively concern the actions of the physicians and
do not indicate how the Hospital, a respectable internationally recognized public
institution, could have disposed of Ms. Mesbahi’s record overnight. In vitro
fertilization is a costly and extremely complex medical procedure that
would have required several consultations and involved other members of the
medical and paramedical staff working at the Hospital.
[76]
Moreover,
it is even more surprising that there was no medical follow-up after the
delicate operation in June or July 2008. After all, Ms. Mesbahi not only was
treated by a gynaecologist for several years before her pregnancy, but also
would have consulted physicians after having had complications only a few days
before her presumptive delivery in Morocco.
[77]
The
applicants contend that the analyst was not entitled to [TRANSLATION] “judge”
the not always judicious choices they made. Once again, the applicants’ explanation
is a little too glib in the circumstances. In my opinion, the analyst was
entitled to judge not the wisdom of the choices allegedly made by the
applicants but their probability, and that is what she did in this case by not
attaching any probative weight to Mr. Azziz’s explanation.
[78]
It was
also reasonable for the analyst to attach little probative value to the new
evidence submitted by the applicants in August 2009. Dr. Malouf’s certificate,
which indicates that it was Ms. Mesbahi who told him that she was pregnant, would
be puzzling for anyone. As for the Moroccan medical documents, they contain
contradictions that the analyst could take into account even without being a
handwriting expert.
[79]
Once
again, it must be remembered that the analyst had to carefully examine the
evidence and arrive at a conclusion concerning the probative value of the
documentary evidence submitted by the applicants. That is what she did, and her
decision to attach little weight or disregard this evidence is not unreasonable
in the circumstances.
V – APPEARANCE OF BIAS
[80]
Alternatively,
the applicants contend that the conduct or remarks of the government employees
involved in processing their file give rise to a reasonable apprehension of
bias, which the respondent denies. The Court also rejects the applicants’
contentions.
[81]
First,
according to the applicants, the Embassy staff [TRANSLATION] “insulted” Mr.
Azziz in May 2009 by questioning him about the possibility that he and his wife
could have had a child given their age: the consular officer was not entitled
to make a negative judgment about the [TRANSLATION] “choices” they made. In the
Court’s opinion, this argument is not convincing. This is nothing less than a variation
of the applicants’ first argument concerning the invasion of privacy which was
already rejected by the Court. As I already explained above, the Embassy
staff’s concerns were not unreasonable and I therefore cannot conclude that
they demonstrate any sort of bias.
[82]
Second, an
employee of the Department of Foreign Affairs and International Trade, which
Mr. Azziz contacted in order to obtain information, allegedly told him in July
2009 that [TRANSLATION] “Morocco is country of child
traffickers” and that he had to prove he was not one. However, the remarks in
question were made by a person working in another department. This latter
employee had no involvement in the decision-making process, and consequently
the unforgivable remarks noted above do not give rise to any reasonable
apprehension of bias on the part of this administrative decision-maker. Nor do
I believe that the above-mentioned statement in the affidavit of the principal
applicant, whose credibility is seriously tainted in the Court’s opinion, is
sufficient to establish that these remarks were actually made.
[83]
Third, the
applicants claim that, during telephone conversations in August 2009, the
analyst and the employee who was assisting her allegedly demonstrated hostility
towards Mr. Azziz and their prejudices concerning the use of in vitro fertilization.
The applicants are also questioning the objectivity of Dr. Gollish, who never
examined Ms. Mesbahi. In short, the applicants’ attempts to obtain a
citizenship certificate were doomed to failure.
[84]
As can be
seen, the applicants are equating the government employees’ doubts about the
truthfulness of Mr. Azziz’s statements with the fact that the employees asked
him for additional evidence, thereby demonstrating their lack of objectivity
and open-mindedness. This is also a variation of an argument already dismissed
by the Court. The government employees’ doubts were serious. That said, I give
credence to the version of facts given by the analyst in her affidavit. Providing
supporting evidence, the analyst explained that it was instead Mr. Azziz who
was unreasonable and demonstrated impatience and aggression.
[85]
To be even
more clear, this was not a case of questioning the applicants’ personal choices
based on prejudices or stereotypes, but assessing the plausibility of
statements made by the applicants that were not medically verified. The analyst
was therefore entitled to seek the assistance of experts in the field. Dr.
Gollish’s questioning was legitimate and was based on the medical documentation
provided by the applicants and Mr. Azziz’s unverified statements. As an expert,
Dr. Gollish could validly entertain doubts that Ms. Mesbahi could have given birth
to the child in view of her gynaecological history and the fact that was no
evidence of in vitro fertilization in the record.
[86]
In
conclusion, in the Court’s opinion, the applicants’ criticisms were without
basis and “an informed person, viewing the matter
realistically and practically—and having thought the matter through” would not
conclude that the applicants’ file had been treated with bias or that the facts
asserted above raise a reasonable apprehension of bias.
VI – CONCLUSION
[87]
The Court
finds that the impugned decision is reasonable and that there is no reasonable
apprehension of bias in this case.
[88]
Nor is
this an exceptional case in which the Court, in light of the evidence submitted
by the parties in this application for judicial review, should exercise any residual
discretion in order to declare that the child is a Canadian citizen and order
the Minister to issue a citizenship certificate to the child.
[89]
In this
respect, I would add that the evidence adduced by the applicants in support of
their application for judicial review, including Mr. Azziz’s affidavit, is not
conclusive and does not enable the Court to declare today that Farid is the
natural son of Mr. Azziz or of Ms. Mesbahi.
[90]
In
passing, neither Ms. Mesbahi nor the midwife submitted an affidavit, and Mr.
Azziz told the government employees involved in the case that he was not
present when Ms. Mesbahi gave birth and Farid was born.
[91]
At best,
the information provided to the authorities by Mr. Azziz was contradictory and
ambiguous and has remained so. At worst, the Court is today entitled to wonder
whether Mr. Azziz has told the whole truth and if he has not lied outright to
the authorities and the Court about the child’s parentage. In either case,
there is no reason to order the Minister to issue a citizenship certificate to
the child.
[92]
In view of
the foregoing reasons, the application for judicial review will therefore be
dismissed by the Court. In view of the result, the respondent will be entitled
to costs.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the application for judicial
review is dismissed with costs.
“Luc Martineau”
Certified
true translation
Susan
Deichert, LLB
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