Date:
20120827
Docket:
T-1272-11
Citation:
2012 FC 1015
Halifax, Nova Scotia,
August 27, 2012
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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DEVANSH BHAGRIA,
AGUM KUMAR BHAGRIA and
SANGEETA RANI BHAGRIA
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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 application for judicial review under section 18.1 of the Federal
Courts Act, RSC 1985, c F-7, of a decision dated June 8, 2011 by a foreign
service officer of the Canadian High Commission in India (the officer),
refusing to grant Canadian citizenship to the applicant, Devansh Bhagria. This
conclusion was based on the officer’s finding that the adoption approval letter
from the Indian authority for international adoptions was fraudulent.
Therefore, pursuant to paragraph 5.1(1)(c) of the Citizenship Act, RSC
1985, c C-29, the officer concluded that the applicant, Devansh Bhagria did not
meet the requirements for a grant of Canadian citizenship.
The applicants request that
this Court order the granting of Canadian citizenship to the applicant,
Devansh Bhagria. In the alternative, the applicants
request that the officer’s decision be set aside and that Devansh
Bhagria’s citizenship application be referred back to
the Canadian High Commission in India for continued processing.
[2]
The
principal applicant is the infant, Devansh Bhagria. He is a citizen of India. The other applicants, the applicant couple, are Agum Kumar Bhagria and Sangeeta Rani
Bhagria. They were married in 1990 and subsequently became Canadian citizens.
The applicant couple currently resides in Winnipeg.
[3]
The
principal applicant was born on May 9, 2010. His mother is Mrs. Bhagria’s
distant cousin. As the applicant couple has been unable to have children, the
principal applicant’s mother offered to let them adopt her son. With the
blessing of Mrs. Bhagria’s grandmother, the applicant couple decided to proceed
with the adoption. On May 28, 2010, the Roorkee Court in India issued a deed of adoption of the principal applicant to the applicant couple.
[4]
On
August 16, 2010, the Winnipeg Child and Family Services issued a home study
report for the international adoption of the principal applicant by the
applicant couple. This report recommended approval of the adoption.
[5]
On
January 4, 2011, the principal applicant’s Canadian citizenship application was
filed at the Canadian High Commission in New Delhi. The following month, on
February 16, 2011, the officer sent a request letter for documents required to
process the application. These included a home study, a no objection
certificate (NOC) from the Indian Central Adoption Resource Authority (CARA)
and a provincial NOC.
[6]
In
an NOC dated April 4, 2011, CARA stated that it had no objection to the
adoption. However, as the NOC was not directly received from CARA, the province of Manitoba requested that its genuineness be verified.
[7]
On
April 21, 2011, a designated immigration officer at the Canadian High
Commission sent an email to CARA. A copy of the NOC was attached with a request
for verification of its authenticity. Later the same morning, C. Saraswathi, assistant
director of CARA, sent an email reply indicating that CARA had not issued the
subject NOC and it was therefore not authentic.
[8]
Thereafter,
on April 27, 2011, the officer sent the applicants a procedural fairness letter
stating that CARA had informed the Canadian High Commission that the NOC was
fraudulent. The officer notified the applicants that they had thirty days to provide
additional submissions.
[9]
Mr.
Bhagria was in India when the procedural fairness letter was received.
Therefore, on or about May 3, 2011, Mr. Bhagria attended the CARA office in New Delhi and met with the head of the department, Ms. Anu Jai Singh. Ms. Singh allegedly
informed Mr. Bhagria that the case was still pending because the principal
applicant was not an immediate family member, but rather a child of a distant
cousin. The NOC provided to the Canadian High Commission was therefore created
in error. In fact, it pertained to another child with the same first name as
the principal applicant. However, contrary to the principal applicant, that
child’s file had already been approved.
[10]
On
May 4, 2011, Mr. Bhagria attended the Canadian High Commission in New Delhi. He spoke with immigration officer Manjit Keshub and informed him of his visit to
CARA. In an email to the officer, Officer Keshub informed her of Mr. Bhagria’s
visit. Officer Keshub explained that Mr. Bhagria had spoken with Ms. Singh, who
had informed him that the NOC was issued by CARA by mistake and this was a
technical error on their part. However, Officer Keshub noted that in its reply
email to the NOC verification inquiry, CARA did not say that it issued the NOC,
but did so in error.
[11]
On
May 12, 2011, Mr. Bhagria returned to the Canadian High Commission in New Delhi and requested a meeting with the officer. This request was denied, so Mr. Bhagria
prepared written submissions which he left at the Canadian High Commission for
the officer. In these submissions, Mr. Bhagria indicated that a CARA official
had assured him that the principal applicant’s case was under consideration.
However, all cases had been held until the end of July due to changes in CARA’s
adoption rules. Mr. Bhagria therefore requested that the officer reconsider the
file until the applicants received written response from CARA.
[12]
Mr.
Bhagria has allegedly repeatedly requested that CARA draft a new letter
acknowledging its mistake, however, no such letter has yet been issued. Mr.
Bhagria has also retained a lawyer in India to assist with this matter and that
case is pending. Mrs. Bhagria remains in India with the principal applicant
awaiting a determination on this application.
Officer’s Decision
[13]
In
a letter dated June 8, 2011, the officer notified the principal applicant that
his citizenship application did not meet the legal requirements under paragraph
5.1(1)(c) of the Citizenship Act. The officer explained that this
finding was based on the evidence from CARA that the NOC was fraudulent. It was
therefore not established that the principal applicant’s adoption was in
accordance with the laws of India, where it took place. For these reasons, the
principal applicant’s citizenship application was refused.
[14]
The
reasons for the officer’s decision are expanded upon in the Global Case
Management System (GCMS). These GCMS notes form part of the decision.
[15]
The
GCMS notes indicate that on May 4, 2011, Mr. Bhagria attended the Canadian High
Commission in New Delhi to inquire about the principal applicant’s application.
The officer denied his request for an in-person meeting. Nevertheless, Mr.
Bhagria notified Officer Keshub that he had visited the CARA office on May 3,
2011 and had spoken with Anu J. Singh, Secretary. The GCMS notes indicate that
Ms. Singh informed Mr. Bhagria that CARA had not approved the NOC application
because the principal applicant was a child of a distant cousin rather than an
immediate family member. Ms. Singh also stated that CARA mistakenly issued the
NOC. The GCMS notes also acknowledge Mr. Bhagria’s explanation that his friend,
Mr. Anand had coordinated on his behalf with CARA and had obtained the NOC from
CARA. However, although the officer recognized these submissions, she noted
that CARA did not inform the Canadian High Commission that the NOC was issued
in error.
[16]
The
officer also reviewed Mr. Bhagria’s May 12, 2011 submissions. These submissions
included a letter to CARA requesting reconsideration of the decision to refuse
the NOC. However, the officer noted that although the NOC was refused, the
applicants had presented a fraudulent NOC to the Canadian High Commission. She
noted that no response was provided on the issue of the fraudulent NOC. As
such, the officer refused the principal applicant’s citizenship application.
Issues
[17]
The
applicants submit the following points at issue:
1. What is the
standard of review in this case?
2. What is required
by the duty of fairness in this case?
3. Did the Canadian
High Commission breach its duty of fairness to the applicants?
[18]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
deny the applicants procedural fairness?
3. Did the officer
err in her assessment of the evidence?
Applicant’s Written Submissions
[19]
The
applicants submit that given the importance of having the international
adoption approved, a high level of procedural fairness is required. Issues of
procedural fairness and natural justice are questions of law that are
reviewable on a correctness standard.
[20]
The
applicants submit that it is well established that visa officers owe a duty of
fairness towards applicants. The applicants highlight the factors that the
Supreme Court of Canada specified in Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817, [1999] SCJ No 39 for determining the
content of the duty of fairness.
[21]
In
applying the Baker above factors to this case and bearing in mind that
it pertains to the adoption of a minor child, the applicants submit that a high
level of fairness and procedural protection is required in the officer’s
decision making process. The applicants note that the officer’s role in
adoption cases is the same as that of a citizenship judge and therefore, the
officer performs a judicial function. The applicants submit that this Court has
stated that a high level of procedural fairness is required of citizenship
judges.
[22]
Further,
the applicants note that the officer’s decision is final without any right of
appeal. A new application would considerably lengthen the overall waiting time
for family reunification. In addition, having been invited by the officer to
make additional submissions, the applicants have a legitimate expectation that
their submissions will be thoughtfully considered.
[23]
Having
found that a high level of fairness is required in cases such as this, the
applicants submit that the required level of fairness was not met in this case.
[24]
First
and foremost, the applicants submit that the officer failed to properly
consider the evidence. The applicants note that the correspondence from CARA
stated that the NOC was not approved by the Committee and was therefore not
issued by CARA. From this, the officer concluded that the NOC was fraudulent.
However, the applicants submit that the CARA correspondence could also be
interpreted in other ways. For example, the NOC may not have been issued in
accordance with normal procedures of Committee approval or a CARA employee may
have issued it in error or fraudulently. As these other possibilities exist and
as Mr. Bhagria provided a different version of the facts, the officer should
have followed up with CARA to obtain clarification and/or test the applicants’
credibility.
[25]
The
applicants also submit that there was no evidence in the officer’s file that
she gave any consideration to Mr. Bhagria’s submissions. In support, the
applicants note that there was no analysis, weighing of the evidence or follow
up with either CARA or the applicants. As such, the applicants submit that the
officer did not properly consider Mr. Bhagria’s additional submissions.
[26]
In
addition, or in the alternative, the applicants submit that the officer should
have granted Mr. Bhagria an opportunity to present his submissions in person to
the officer. The applicants note that there is jurisprudence suggesting that an
applicant must be granted an opportunity to make oral submissions where a
decision turns on credibility or where there are doubts as to an applicant’s
evidence. The applicants submit that in this case, any finding that a
fraudulent document was provided by or on behalf of the applicants depended on
their credibility. Such a matter would be best tested by way of an oral
examination. It is thus unfair to dismiss their explanation without a testing
of their credibility.
[27]
Finally,
the applicants submit that they did not prepare or arrange for the preparation
of any fraudulent documents purportedly from CARA or otherwise.
Respondent’s Written Submissions
[28]
The
respondent submits that the appropriate standard of review is correctness for
questions of procedural fairness and reasonableness for questions of
interpretation and the weighing of evidence.
[29]
The
respondent submits that the officer properly considered the applicants’
evidence.
[30]
First,
the respondent addresses the applicants’ submission that the officer’s use of
the word fraudulent in characterizing the NOC is indicative of a finding of
adverse credibility. The respondent notes that the officer did not allege in
her decision or in the procedural fairness letter that the applicants had
themselves committed fraud, nor that her ultimate decision was based on a
finding of adverse credibility. Rather, the officer’s decision merely indicated
that the NOC was not verified by its purported source and was therefore
insufficient to establish that the adoption was conducted in accordance with India’s laws. As CARA indicated that the NOC was not authenticated by it, it was reasonable
for the officer to characterize it as fraudulent as it was lacking in
authority, not genuine and not certified by CARA. The respondent also notes
that the applicants failed to establish that their adoption was in accordance
with the laws of India as the officer never received an authenticated NOC from
CARA.
[31]
Second,
the respondent submits that the officer properly considered the additional
submissions. The respondent highlights that the standard for adequacy of
reasons of administrative officers is not as stringent as that for
administrative tribunals. Further, absent clear and convincing evidence to the
contrary, decision makers are presumed to have considered all the evidence
before them. In this case, there was no evidence to suggest that the officer
did not consider the additional submissions. In fact, the officer’s decision
itself specifically refers to these submissions. The respondent submits that
the officer therefore properly considered the applicants’ submissions.
[32]
The
respondent then addresses the issue of procedural fairness raised by the
applicants. The respondent submits that the officer did not err by not
scheduling an interview. The respondent notes that there is no basis in law for
the applicants’ expectation for a meeting with the officer when Mr. Bhagria
visited the Canadian High Commission in New Delhi without any prior scheduled
appointment.
[33]
The
respondent also submits that no error was committed by the officer in not
scheduling an interview or suggesting an alternative meeting time. The content
of the duty of fairness in the context of the circumstances of this case did not
include a duty to interview or schedule an interview with the applicants. The
respondent also notes that this Court has recognized that visa officers are not
always required to hold oral hearings. The crucial question in determining
whether an oral hearing was required is whether the applicants, in the absence
of an oral hearing, were afforded a meaningful opportunity to present evidence
and to have that evidence fully and fairly considered. The respondent submits
that the applicants were fully afforded this opportunity in this case.
[34]
The
respondent notes the applicants’ submission that they were not given a
meaningful opportunity to present evidence on the legality of the adoption in
accordance with Indian laws. Pursuant to subparagraph 5.1(3)(b)(i) of the Citizenship
Regulations, SOR/93-246, a valid NOC is required from CARA to confirm that
an adoption is in accordance with the laws of India. This evidence must be in
writing. Thus, without a valid NOC from CARA, an interview or oral hearing
would not have helped the applicants satisfy the officer that the adoption was
in accordance with Indian laws. Therefore, no breach of procedural fairness
arose from the officer not suggesting alternative times for the applicants to
meet with her.
[35]
Further,
the respondent submits that the officer was not required to follow-up with
CARA. Rather, the applicants bore the onus of establishing that their
application met citizenship requirements. In support, the respondent highlights
jurisprudence that states that when applying for citizenship, applicants bear
the onus of establishing that they have met the requirements of both the Citizenship
Act and the Citizenship Regulations.
[36]
The
respondent also submits that the officer was not required to hold the
applicants’ citizenship application in abeyance. In fact, such a requirement would
be unreasonable and would frustrate the expeditious processing of applications.
The respondent notes that Mr. Bhagria did not provide the officer with any
clear timeline within which CARA’s alleged NOC reconsideration would take
place. Therefore, the respondent submits that the officer did not err in not
holding the principal applicant’s citizenship application in abeyance until the
applicants’ issues were resolved with CARA.
[37]
Finally,
the respondent submits that in the event that this Court allows this
application, this Court should not give the respondent specific directions to
grant the citizenship application. Such directions are not warranted in the
circumstances of this case.
Analysis and Decision
[38]
Issue
1
What is the
appropriate standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[39]
A
decision under section 5.1 of the Citizenship Act is fact-driven and
rendered by officers with specialized expertise in the field. These decisions
warrant a high level of deference from this Court and therefore attract a
reasonableness standard of review. This Court may however intervene if it finds
that the officer erred by ignoring evidence or by drawing unreasonable
inferences from the evidence (see Jardine v Canada (Minister of Citizenship
and Immigration), 2011 FC 565,
[2011]
FCJ No 782 at paragraphs 16 to 18).
[40]
In
reviewing the officer’s decision on a standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47). It is not up to a reviewing Court to substitute its own view of
a preferable outcome, nor is it the function of the reviewing Court to reweigh
the evidence (see Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] SCJ No 12 at paragraphs 59 and 61).
[41]
Conversely,
issues of procedural fairness are reviewable on a correctness standard (see Malik v Canada (Minister of Citizenship and
Immigration) 2009 FC 1283, [2009] FCJ No 1643 at paragraph 23; and Khosa
above, at paragraph 43). No deference is owed
to the officer on this issue (see Dunsmuir above, at paragraph 50).
[42]
Issue
2
Did the officer deny the
applicants procedural fairness?
This case revolves around
section 5.1 of the Citizenship Act, which was enacted relatively
recently. As such, it has received little treatment in the jurisprudence to
date. Parliament’s intent in enacting this provision was to reduce citizenship
eligibility distinctions between adopted foreign children and children born
abroad to Canadian parents. Prior to its enactment, adopted foreign children
were first required to apply for and obtain permanent residence, after which
they could apply for Canadian citizenship. Conversely, children born abroad to
Canadian parents were automatically granted Canadian citizenship.
[43]
When
the Bill introducing this provision was discussed, Members of Parliament
described its intent as the promotion of fairness, the treatment of children of
Canadian parents with equity and equality and the seeing of new families
constituted as supportively and as quickly as possible. Monte Solberg, the
Minister of Citizenship and Immigration and the sponsor of Bill C-14, explained
at the House of Commons Debate:
Indeed
we are supporting families and their newest members, their adopted children, children
we want to see protected, children we want to welcome, children
who we want to feel at home here in Canada. [emphasis added]
[44]
Mr.
Solberg also noted that this provision incorporated important safeguards to ensure
that the best interests of the child were met, that a proper home assessment
was made, that the birth parents consented to the adoption, that no person
would achieve unwarranted gain from the adoption and that a genuine
parent-child relationship existed. Respecting the laws of the country from
which the child was adopted was also described as an important obligation. It
is the application of this obligation that is at issue here.
[45]
Subparagraph
5.1(3)(b)(i) of the Citizenship Regulations implements this obligation
to respect the adoption laws of other countries. This provision states:
The
following factors are to be considered in determining whether the requirements
of subsection 5.1(1) of the Act have been met in respect of the adoption of a
person referred to in subsection (1): […]whether, in the case of a person who
has been adopted outside Canada in a country that is a party to the Hague
Convention on Adoption and whose intended destination at the time of the
adoption is a province, […] the competent authority of the country and
of the province of the person’s intended destination have stated in writing
that they approve the adoption as conforming to that Convention […]
[emphasis added]
[46]
As
indicated, subparagraph 5.1(3)(b)(i) of the Citizenship Regulations
requires officers to consider whether the competent authority of the country
has “stated in writing that they approve the adoption”.
[47]
In
this case, there was no dispute that the competent authority in India is CARA and that a written NOC for the principal applicant was originally provided to
the officer. However, the parties differ on their interpretations of CARA’s
email response to the verification request of the NOC’s authenticity. CARA’s
email response to this request was brief and merely stated:
The
NOC of DEVANSH (M) DOB 09.05.2010 was not approved by Committee and therefore
was not issued by CARA. Hence the attached NOC is not authenticated and not
verified by CARA.
[48]
The
respondent submits that this response clearly indicates that the NOC was lacking
in authority, not genuine and not certified by CARA. The officer therefore
correctly deemed it fraudulent. Conversely, the applicants submit that as the
officer deemed it fraudulent, she was essentially questioning their
credibility. The officer was therefore required to hold an oral hearing,
conduct an in-person interview with the applicants, and/or inquire further with
CARA. By failing to do any of these, the applicants submit that the officer
breached their procedural fairness rights.
[49]
Before
delving into these two positions, it is notable that the parties agree that a
high level of procedural fairness is required in this case. However, they
differ on the content of that duty of fairness in this case. As little
jurisprudence has developed on this provision, basic principles must be
reviewed in determining the required content of the duty of fairness under this
provision and in the specific circumstances of this case.
[50]
The
basic principles relevant to the determination of the content of procedural fairness
were discussed by Madam Justice L'Heureux-Dubé in Baker above. At the
outset, Madam Justice L'Heureux-Dubé acknowledged that the content must be
decided in the specific context of each case (see Baker above, at
paragraph 21). Madam Justice L'Heureux-Dubé emphasized that (see Baker
above, at paragraph 22):
[…]
the purpose of the participatory rights contained within the duty of procedural
fairness is to ensure that administrative decisions are made using a fair and
open procedure, appropriate to the decision being made and its statutory,
institutional, and social context, with an opportunity for those affected by
the decision to put forward their views and evidence fully and have them
considered by the decision-maker.
[51]
Madam
Justice L'Heureux-Dubé then listed five non-exhaustive factors for determining
the content of the duty of fairness (see Baker above, at paragraphs 23
to 28). In short, these factors are:
1. The nature of the
decision and the decision making process;
2. The nature of the
statutory scheme and the terms of the statute pursuant to which the body
operates;
3. The importance of
the decision to the individual(s) affected;
4. The legitimate
expectations of the person(s) challenging the decision; and
5. The choices of
procedure made by the agency itself.
[52]
On
the first factor, Madam Justice L'Heureux-Dubé explained that the more the
decision making process, the function and nature of the decision maker and the
determinations made to reach a decision resemble judicial decision making, the
more likely that procedural protections of a trial model will be required (see Baker
above, at paragraph 23). The key is the nature of the issue that has to be
determined, not the formal status of the decision maker (see Baker
above, at paragraph 25). In this case, when exercising her power under section
5.1 of the Citizenship Act, the officer is making a citizenship
determination on an adopted child. Thus, her role was similar to that of a
citizenship judge, which entailed weighing evidence and the application of the
law to the facts. As such, the officer played a judicial function in rendering
her decision.
[53]
On
the second factor, Madam Justice L'Heureux-Dubé explained in Baker
above, that greater procedural protections will be required where there is no
appeal procedure provided in the statute or when a decision is determinative of
the issue (at paragraph 24). As indicated by this application, judicial review
is available of the officer’s decision under section 5.1 of the Citizenship
Act. However, there is no appeal right and the applicants correctly
submitted that the judicial review process is much narrower than an appeal. It
is also notable that once an officer’s decision is rendered, a new application
would be required, thus, further delaying family reunification. A further delay
runs counter to Parliament’s intent in enacting this provision, which was to
see new families constituted as supportively and as quickly as possible.
[54]
On
the third factor, Madam Justice L'Heureux-Dubé explained in Baker above,
that the more important the decision is to the lives of those affected and the
greater the impact on them, the more stringent the procedural protections will
be (at paragraph 25). This factor clearly works in the applicants’ favour as
the officer’s decision has a great impact on the applicants’ lives. Thus, this
factor also points towards greater procedural protections.
[55]
On
the fourth factor, Madam Justice L'Heureux-Dubé explained in Baker
above, that if an applicant has a legitimate expectation that a certain procedure
will be followed, this procedure will be required by the duty of fairness (at
paragraph 26). In this case, the applicants submit that as the officer provided
them with thirty days to make additional submissions, the officer was required
to thoughtfully consider any such submissions. Indeed, the officer is required
to consider all the evidence before her, which includes any additional
submissions made within the permitted thirty days. However, unlike the
applicants’ submissions, there was no requirement that the file would be held
open until matters were resolved with CARA. No such indication was made in the
officer’ procedural fairness letter.
[56]
Finally,
on the fifth factor, Madam Justice L'Heureux-Dubé explained in Baker
above, that the choices of procedure made by the decision maker should be
respected, particularly when the statute allows the decision maker to choose
its own procedures or when the decision maker has an expertise in determining
what procedures are appropriate in the circumstances (at paragraph 27).
Subparagraph 5.1(3)(b)(i) of the Citizenship Regulations clearly sets
out a list of factors that the officer must consider in rendering a decision,
thus, somewhat limiting flexibility in decision making. However, it is well
recognized that immigration officers have expertise in immigration matters that
generally attract deference from the Courts. Their choice of procedure in
making their decision should thus generally be respected.
[57]
In
summary, the first three Baker above, factors clearly point to strong
procedural protections, whereas the last two factors suggest somewhat lesser
procedural entitlements. With this analysis as a background, the specific
circumstances of this case must be reviewed to determine whether the necessary
procedural fairness rights were granted to the applicants.
[58]
In
this case, the officer clearly considered the original NOC and CARA’s response
to the NOC verification request. However, upon receipt of CARA’s brief reply
email, the officer did not inquire further with CARA. Nevertheless, the officer
did send a procedural fairness letter to the applicants to notify them of
CARA’s response and to provide them with thirty days to submit additional
information.
[59]
Shortly
after receiving this procedural fairness letter, Mr. Bhagria visited the CARA
office to inquire about the NOC. He then proceeded to the Canadian High
Commission where he spoke with Officer Keshub. After their discussion, Officer
Keshub sent the officer an email summarizing Mr. Bhagria’s concerns. Officer
Keshub noted Mr. Bhagria’s statement that he had spoken with Ms. Singh at the
CARA office. Ms. Singh had informed him that the NOC was issued in error as it
was in fact intended for another child, other than the principal applicant.
However, Officer Keshub noted that CARA’s reply email to the NOC verification
inquiry did not indicate that CARA issued the NOC in error. Rather, it had said
that the NOC was not authentic and not issued by CARA. Later, when Mr. Bhagria
returned to the Canadian High Commission and requested a meeting with the
officer, the officer denied his request.
[60]
I
find that these events, coupled with the relatively strong procedural
protections mandated by the Baker above, factors as well as Parliament’s
intent in enacting section 5.1 of the Citizenship Act, raise serious
questions about the sufficiency of procedural fairness granted to the
applicants in this case. At the outset, I repeat Parliament’s intent in
enacting this provision which was to ensure that families are constituted as
supportively and as quickly as possible.
[61]
I
then note the home study report completed by the provincial Manitoba
government, which provided glowing favourable recommendations of the applicant
couple as adoptive parents. With regards to India’s own adoption laws, it is notable
that a deed of adoption from the Roorkee Court in India was issued to the
applicants and was before the officer. There was no suggestion that this deed
was fraudulent or invalid. Further, upon receipt of the procedural fairness
letter, Mr. Bhagria immediately contacted CARA and thereafter visited the
Canadian High Commission on two separate occasions to address the issues
raised. As such, I find that Mr. Bhagria acted swiftly and proactively to
address the officer’s concerns. The same cannot be said for the officer’s
actions.
[62]
Recalling
the importance that Canada places on family reunification, I find that the
procedural fairness required in the specific circumstances of this case
demanded greater attention and effort by the officer to verify CARA’s treatment
of the principal applicant’s file.
[63]
I
question Officer Keshub’s finding that CARA’s brief email did not support Mr.
Bhagria’s allegation. Although CARA’s email did not specifically state that it
issued the NOC in error, it did say that the Committee had not approved the
principal applicant’s NOC. If, as Mr. Bhagria stated, the NOC had been
incorrectly issued for the principal applicant when it was in fact intended for
another child, then the Committee would not have approved the principal applicant’s
NOC. Thus, there are two possible interpretations of CARA’s email: one being
that the NOC was fraudulent and the other being that the NOC was mistakenly
issued by CARA. Without inquiring further, the officer’s understanding was
limited to Officer Keshub’s interpretation as provided in the email. As such,
the applicants were denied full and fair consideration of their evidence by the
officer.
[64]
Faced
with a clear explanation that differed from the officer’s ultimate finding and
in light of Parliament’s intent in enacting section 5.1 of the Citizenship
Act, I find that the content of the procedural fairness in this case
required that the officer, at a minimum, inquire further with CARA about the
NOC at issue. Anything less would defeat Parliament’s objective to constitute
families as supportively and quickly as possible.
[65]
Because
of my finding with respect to procedural fairness, I need not deal with the
remaining issue.
[66]
For
the above reasons, the applicant’s application for judicial review is allowed.
[67]
The
applicant should be allowed sufficient time to obtain the NOC.
[68]
The
applicant requested costs in his written argument but based on the facts of the
case, I am not prepared to make an award of costs. The problem arose as a
result of CARA’s error.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for
judicial review is allowed and the matter is referred to a different officer
for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Federal
Courts Act,
RSC 1985, c F-7
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18.1 (1) An
application for judicial review may be made by the Attorney General of Canada
or by anyone directly affected by the matter in respect of which relief is
sought.
(2) An
application for judicial review in respect of a decision or an order of a
federal board, commission or other tribunal shall be made within 30 days
after the time the decision or order was first communicated by the federal
board, commission or other tribunal to the office of the Deputy Attorney
General of Canada or to the party directly affected by it, or within any
further time that a judge of the Federal Court may fix or allow before or
after the end of those 30 days.
(3) On
an application for judicial review, the Federal Court may
(a) order
a federal board, commission or other tribunal to do any act or thing it has
unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare
invalid or unlawful, or quash, set aside or set aside and refer back for
determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal.
(4) The
Federal Court may grant relief under subsection (3) if it is satisfied that
the federal board, commission or other tribunal
(a) acted
without jurisdiction, acted beyond its jurisdiction or refused to exercise
its jurisdiction;
(b) failed
to observe a principle of natural justice, procedural fairness or other
procedure that it was required by law to observe;
(c) erred
in law in making a decision or an order, whether or not the error appears on
the face of the record;
(d) based
its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it;
(e) acted,
or failed to act, by reason of fraud or perjured evidence; or
(f) acted
in any other way that was contrary to law.
(5) If
the sole ground for relief established on an application for judicial review
is a defect in form or a technical irregularity, the Federal Court may
(a) refuse
the relief if it finds that no substantial wrong or miscarriage of justice
has occurred; and
(b) in
the case of a defect in form or a technical irregularity in a decision or an
order, make an order validating the decision or order, to have effect from
any time and on any terms that it considers appropriate.
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18.1 (1) Une
demande de contrôle judiciaire peut être présentée par le procureur général
du Canada ou par quiconque est directement touché par l’objet de la demande.
(2) Les
demandes de contrôle judiciaire sont à présenter dans les trente jours qui
suivent la première communication, par l’office fédéral, de sa décision ou de
son ordonnance au bureau du sous-procureur général du Canada ou à la partie
concernée, ou dans le délai supplémentaire qu’un juge de la Cour fédérale
peut, avant ou après l’expiration de ces trente jours, fixer ou accorder.
(3) Sur
présentation d’une demande de contrôle judiciaire, la Cour fédérale
peut :
a) ordonner
à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis
ou refusé d’accomplir ou dont il a retardé l’exécution de manière
déraisonnable;
b) déclarer
nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement
conformément aux instructions qu’elle estime appropriées, ou prohiber ou
encore restreindre toute décision, ordonnance, procédure ou tout autre acte
de l’office fédéral.
(4) Les
mesures prévues au paragraphe (3) sont prises si la Cour fédérale est
convaincue que l’office fédéral, selon le cas :
a) a
agi sans compétence, outrepassé celle-ci ou refusé de l’exercer;
b) n’a
pas observé un principe de justice naturelle ou d’équité procédurale ou toute
autre procédure qu’il était légalement tenu de respecter;
c) a
rendu une décision ou une ordonnance entachée d’une erreur de droit, que
celle-ci soit manifeste ou non au vu du dossier;
d) a
rendu une décision ou une ordonnance fondée sur une conclusion de fait
erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des
éléments dont il dispose;
e) a
agi ou omis d’agir en raison d’une fraude ou de faux témoignages;
f) a
agi de toute autre façon contraire à la loi.
(5) La
Cour fédérale peut rejeter toute demande de contrôle judiciaire fondée
uniquement sur un vice de forme si elle estime qu’en l’occurrence le vice
n’entraîne aucun dommage important ni déni de justice et, le cas échéant,
valider la décision ou l’ordonnance entachée du vice et donner effet à
celle-ci selon les modalités de temps et autres qu’elle estime indiquées.
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Citizenship
Act, RSC 1985, c
C-29
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5.1 (1) Subject
to subsection (3), the Minister shall on application grant citizenship to a
person who was adopted by a citizen on or after January 1, 1947 while the
person was a minor child if the adoption
(a) was
in the best interests of the child;
(b) created
a genuine relationship of parent and child;
(c) was
in accordance with the laws of the place where the adoption took place and
the laws of the country of residence of the adopting citizen; and
(d) was
not entered into primarily for the purpose of acquiring a status or privilege
in relation to immigration or citizenship.
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5.1 (1) Sous
réserve du paragraphe (3), le ministre attribue, sur demande, la citoyenneté
à la personne adoptée par un citoyen le 1er janvier 1947 ou subséquemment
lorsqu’elle était un enfant mineur. L’adoption doit par ailleurs satisfaire
aux conditions suivantes :
a) elle
a été faite dans l’intérêt supérieur de l’enfant;
b) elle
a créé un véritable lien affectif parent-enfant entre l’adoptant et l’adopté;
c) elle
a été faite conformément au droit du lieu de l’adoption et du pays de
résidence de l’adoptant;
d) elle
ne visait pas principalement l’acquisition d’un statut ou d’un privilège
relatifs à l’immigration ou à la citoyenneté.
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Citizenship
Regulations,
SOR/93-246
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5.1(3) The
following factors are to be considered in determining whether the
requirements of subsection 5.1(1) of the Act have been met in respect of the
adoption of a person referred to in subsection (1):
. . .
(b) whether,
in the case of a person who has been adopted outside Canada in a country that is a party to the Hague Convention on Adoption and whose intended
destination at the time of the adoption is a province,
(i) the
competent authority of the country and of the province of the person’s
intended destination have stated in writing that they approve the adoption as
conforming to that Convention, . . .
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5.1(3) Les
facteurs ci-après sont considérés pour établir si les conditions prévues au
paragraphe 5.1(1) de la Loi sont remplies à l’égard de l’adoption de la
personne visée au paragraphe (1) :
. . .
b) dans
le cas où la personne a été adoptée à l’étranger dans un pays qui est partie
à la Convention sur l’adoption et dont la destination prévue au moment de
l’adoption est une province :
(i) le
fait que les autorités compétentes de ce pays et celles de la province de
destination de la personne ont déclaré par écrit que l’adoption était
conforme à cette convention, . . .
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