Date: 20120522
Docket: T-927-11
Citation: 2012 FC 619
Ottawa, Ontario,
May 22, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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UCHENNA
HYACINTH EZEMENARI
CHUKWUEBUKA
HYACINTH EZEMENARI (MINOR) CHIKA VERONICA EZEMENARI (MINOR)
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Applicants
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and
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THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an appeal pursuant to subsection 14(5)
of the Citizenship Act, RSC 1985, c C-29 and section 21 of the Federal
Courts Act, RSC 1985, c F-7, of a decision of an Immigration Counsellor who
refused to grant Canadian Citizenship to Chukwuebuka Hyacinth Ezemenari
and Chika Veronica Ezemenari (the Nigerian Children) both of whom are six years
of age and live in Nigeria. Mr. Ezemenari and his wife purport to have
lawfully adopted the children in Nigeria; the Counsellor held that he had reasonable grounds to believe that
the adoption order they submitted was a fraudulent document.
[2]
On the unique facts of this case, I find that
the appeal must be allowed, the decision set aside, and the application
returned for a new decision by another Counsellor.
BACKGROUND
[3]
Mr. and Ms. Ezemenari were both born in Nigeria and are Canadian citizens. After
having raised two sons who are now in their late twenties and early thirties,
they decided to adopt the Nigerian Children.
[4]
Their first application for the Nigerian
Children’s citizenship was filed on October 9, 2007. It was not in compliance
with Ontario law and lacked the
required homestudy report. The officer at the time noted this and was not
satisfied that the adoption was in the best interests of the children.
Additionally, he was not satisfied that the adoption was in accordance with
Nigerian laws since no social services report from Nigeria was received. By decision dated January 23, 2009, the application
was refused.
[5]
On November 5, 2009, Mr. and Ms. Ezemenari filed
a second application which resulted in the decision under review. On July 29,
2010, a judicial fairness letter was sent advising that the application did not
meet the requirements of the Citizenship Act because, as was stated in
the letter, “it appears that your adoption does not comply with the applicable
laws in the jurisdiction where the adoption took place.” Specifically, the Counsellor
pointed out the following three concerns: (1) that the relevant Act applicable
to the adoption of children in Imo State requires that at least one of the
adoptive patents must be resident in the state for at least three months, but
the adoptive parents’ family home is in Enugu State, (2) that the adoptees must
be in the care of the adoptive parents for at least three months whereas Mr.
and Ms. Ezemenari were residing in Canada and had provided for a nanny and
other family members in Nigeria to care for these children, and (3) the
adoption order references legislation that has not been in effect since 2004
when the current Act came into effect.
[6]
In response to the fairness letter, Mr. and Ms.
Ezemenari obtained a legal opinion from a lawyer in Nigeria which they believed responded to these concerns. Whether it did or
did not is not the real issue of concern for this Court. That opinion was
transmitted with a cover letter from their Canadian lawyers which also
attempted to respond to the stated concern that the “adoption does not comply
with the applicable laws in the jurisdiction where the adoption took place.”
Critically, for the purposes of this application, in that correspondence the
Canadian solicitors stated as follows:
It is trite law
that the decisions of foreign courts, especially with regards to adoption
matters must be respected unless there are allegations of fraud. Your
referenced letter did not raise any issue of fraud with this matter
[emphasis added].
[7]
On March 28, 2011, after having reviewed the
applicants’ response to the fairness letter, the Counsellor rejected the
citizenship request. The Counsellor noted the previous concerns set out in the
fairness letter and concluded as follows:
After careful
consideration, there are reasonable grounds to believe that this adoption
order, indicated to have been issued in the Magistrates Court of Imo state on
22 June 2006 (suit no. MOR/MIAC/14/2006) is fraudulent. I am persuaded
that these discrepancies are of a serious and fundamental nature and that this
document was not issued by the relevant court [emphasis added].
ISSUE
[8]
The underlying issue is this appeal is whether
the applicants were denied the right to procedural fairness due to the
Counsellor’s failure to express concerns in the fairness letter relating to the
authenticity of the Nigerian adoption order.
[9]
It is common ground that the duty of fairness
requires that visa applicants be given a reasonable opportunity to respond to
visa officers' concerns before their application is denied: Khan v Canada
(Minister of Citizenship and Immigration), 2001 FCA 345 at para 18 [Khan].
[10]
In that decision at para 29, the Court of
Appeal in the context of medical inadmissibility stated:
[W]here an
applicant is clearly advised of the medical diagnosis and prognosis, and of the
services likely to be required, he or she effectively knows the grounds for
the potential refusal and has the knowledge necessary to pursue the matter
further. In these circumstances, the Minister is not normally obliged to
disclose in the fairness letter the detail supporting the conclusion that a
visa could be refused because admission of the person concerned is likely to
cause excessive demands on medical or social services [emphasis added].
At paragraph
36, the Court of Appeal concluded:
In short, the
omission of further detail from the fairness letter did not prevent Mr. Khan
from understanding the reason for the rejection of his visa application or from
making further inquiries. Consequently, he was not denied the reasonable
opportunity to respond to the visa officer's concerns about the admissibility
of Abdullah to which the duty of fairness entitled him [emphasis added].
[11]
In Khan, therefore, the Court of Appeal
indicated that a fairness letter must provide a reasonable understanding of why
the officer is inclined to deny an application. Although this application
deals with an application for citizenship and not a resident visa, I can see no
principles basis for a suggestion that different considerations should apply.
In the present matter, the Counsellor made no allegation of fraud in the
fairness letter; the fairness letter merely noted three inconsistencies and
stated that the adoption order does not seem to comply with the applicable laws
in the jurisdiction where the adoption took place.
[12]
It is submitted by the respondent that the
inconsistencies cited by the Counsellor may be understood to be the basis of an
allegation of fraud; however, similar inconsistencies have also been understood
to be the basis of an allegation that the order lacks jurisdiction and is not
binding: see for example Boachie v Canada (Minister of Citizenship and
Immigration), 2010 FC 672 and Sinniah v Canada (Minister of Citizenship
and Immigration), 2002 FCT 822.
[13]
In the present matter, the applicants’ solicitor
merely understood the issue to be a lack of jurisdiction and binding effect.
As a result, a Nigerian lawyer was contacted by the applicants and that concern
was that which he addressed. It is clear from the portion of the response letter
dated November 30, 2010, reproduced at paragraph 6 of these Reasons, that the
applicants’ solicitor did not understand that Counsellor to be alleging fraud.
In my opinion, he cannot be faulted for that assumption. At best, the fairness
letter read as a whole was ambiguous as to the true nature of the Counsellor’s
concerns. What was not ambiguous is what the applicants understood those
concerns to be.
[14]
In my view, if a fairness letter is sent because
of an allegation that a document submitted in an application is not genuine,
then that concern must be stated with some directness in order that there is no
ambiguity and in order that the recipient can respond directly to that
concern. That was not done in this case. While the Court recognizes that the
concerns raised by the Counsellor reasonably may result in a finding that the
document was not genuine, the applicants must be given an opportunity to
address that issue before a decision that the document is not bona fide
is made.
[15]
This
appeal must be allowed.
JUDGMENT
THIS COURT’S JUDGMENT is that this appeal is allowed and the application for Canadian
citizenship for the Nigerian Children by Mr. and Mrs. Ezemenari is to be
determined by another decision-maker in accordance with these Reasons.
"Russel W. Zinn"
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