Docket: T-1179-11
Citation: 2012 FC 91
Ottawa, Ontario, January 24,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
|
|
DEREK SATNARINE
STEPHANIE ANGEL PERSAUD
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the decision of a Citizenship Officer,
dated June 28, 2011, refusing the citizenship application of Derek
Satnarine for his adopted daughter, Stephanie Angel Persaud (referred to
collectively as the Applicants). The Officer was not satisfied that
Stephanie’s adoption was not entered into primarily for the purpose of
acquiring a status or privilege in relation to immigration or citizenship under
subsection 5.1(1)(d) of the Citizenship Act, RSC, 1985, c C-29 (the Act).
[2]
For
the following reasons, the application is dismissed.
I. Background
[3]
Derek
Satnarine first met Stephanie Angel Persaud and decided to adopt her while she
was visiting Toronto in 2005. She
is the biological daughter of his sister currently living in Guyana. Stephanie’s
mother did not consent to this adoption until 2008. In the intervening period,
Derek did not visit Stephanie.
[4]
Since
March 2008, Stephanie has been living in Canada with Derek
and has not returned to Guyana. She continues to contact her biological
parents on Christmas, New Year’s and birthdays.
II. Decision
Under Review
[5]
In
her letter, the Officer reviewed information gleaned during separate interviews
with the Applicants regarding the adoption including that:
• Derek
had adopted Stephanie to help out his sister and ensure a better life in Canada
where Stephanie, who excelled academically, could pursue an academic career in
accounting at Ryerson
University
• Stephanie
made regular and continuous phone calls to her biological parents on special
occasions and holidays
• Stephanie
had not gone back to Guyana to visit her biological parents or siblings because
there is a matter of her getting a visa to come back to Canada
• Derek
had not opened a Registered Education Savings Plan (RESP) for Stephanie’s
future education, stating that he could not because she does not have a Social
Insurance Number
• When
asked whether having an additional family member posed a financial strain,
Derek stated that this was only the case when Stephanie had to go for medical
treatment, since she does not yet have an Ontario Health Card
• Stephanie
is given an allowance of $500 per month
• Stephanie
stated she goes to the mall with Derek as part of ‘fun things’ to do as a
family
• Stephanie
has a pending application for permanent residence, filed under humanitarian and
compassionate (H&C) considerations
• Having
spent most of her childhood with her biological family, Stephanie was 14 years
old at the time of adoption and had met Derek only once prior
[6]
Based
on this information, the Officer was not satisfied that the adoption was not
entered into primarily for the purpose of acquiring a status or privilege in
relation to immigration or citizenship. The evidence indicated the
relationship between the Applicants began only after the adoption took place in
2008. There was a continuing relationship between Stephanie and her birth mother
through regular contact.
[7]
Moreover,
the reasons given as to why the adoption took place were for the purpose of
helping out her birth mother and giving Stephanie a better quality of life and
education in Canada. As a
consequence, the Citizenship Officer determined that Derek had failed to
establish Stephanie met the requirements for citizenship.
III. Issues
[8]
This
application raises the following issues:
a) Did the Officer err in her
assessment of the evidence?
b) Did
the Officer breach procedural fairness or fetter jurisdiction by seeking third
party assistance in preparing her reasons?
IV. Standard of Review
[9]
The
Officer’s fact-driven inquiry and assessment of evidence necessitated by
section 5.1 of the Act attracts the reasonableness standard of review
(see Jardine v Canada (Minister of
Citizenship and Immigration), 2011 FC 565, [2011] FCJ no 782 at paras
16-17). Based on this standard, the Court should not intervene unless the
decision falls outside the range of possible, acceptable outcomes or does not
accord with the principles of justification, transparency and intelligibility
(see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
[10]
By
contrast, questions of procedural fairness and jurisdiction, as raised by the Applicants
under Issue B, demand the correctness standard (see Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009 CarswellNat
434 at para 42-43).
V. Analysis
A. Did
the Officer Err in her Assessment of the Evidence?
[11]
The
Applicants dispute the Officer’s factual findings as being made without regard
for the evidence or in a perverse and capricious manner. They insist that
their affidavits contradict those findings.
[12]
Based
on the Respondent’s submissions, however, I am not convinced that the Officer’s
assessment of the evidence would be considered unreasonable.
[13]
For
example, Stephanie’s affidavit contests the Officer’s conclusion that there are
“regular and continuous telephone calls” to her biological mother or regular
contact more generally. However, she confirms that calls are made on
Christmas, New Year’s and birthdays. This is not at odds with the Officer’s
summation that there is regular contact on “special occasions and holidays.”
[14]
Stephanie’s
affidavit acknowledges that she was refused visitor’s visas on 2 occasions, but
insists that she was never asked whether the “entire family was refused visitor
visas numerous times” as implied by the Officer. I note that the Officer
merely stated “it appears” as though the information was found in the file
rather than attributing this assertion to any specific statement from
Stephanie.
[15]
Derek’s
affidavit claims that he “did not state that [he had] not set aside funds for
her education” and was only asked about the RESP. The Officer’s statement in
this regard is nonetheless consistent with his response to the question “Have
you started an RESP for Stephanie’s future education – college, university?” Notes
taken during the interview indicate that Derek stated: “No. Cannot open
account for her – does not have SIN. I have not set aside funds for
university.”
[16]
Similarly,
Derek takes issue with the Officer referring to the question of “whether having
an additional family member living with you posed a financial strain” in his
affidavit. The Officer asked him more specifically in the interview whether
“[a]dopting Stephanie would have incurred added expense. How has this affected
you financially?” Although the wording is slightly different, it elicits a
similar response. The Officer made reference to Stephanie not having a Health
Card as well as Derek paying her bills and a $500 allowance. This evidence is
reflected in the Officer’s decision and the Applicants’ affidavits.
[17]
Derek’s
affidavit also elaborates on his reasons for adopting Stephanie. He refers to
the financial support he could provide, giving the difficulties facing his
sister in caring for her on her own. Derek expresses his desire to have a
child of his own and give Stephanie a better life and education in Canada. The
Officer’s assessment that the reasons were to help out her birth mother and
give Stephanie a better quality of life and education in Canada reflects these
statements and do not amount to misconstruing the evidence.
[18]
The
Applicants have also expressed disbelief in the Officer’s conclusion that their
relationship began after the adoption took place in 2008. They note that
Stephanie started living with Derek in March 2008 but the adoption order was
not rendered until December 10, 2008. Prior to living with Derek, however, the
Applicants had only met on one occasion in 2005. Irrespective of the exact
date of the adoption order, they began living together and only developed any
sort of relationship starting in 2008 for the purposes of the adoption
contemplated by Derek as early as the first meeting in 2005. The Officer’s
conclusion was justified.
[19]
Although
Justice Richard Mosley faulted a citizenship officer for attributing no weight
to certain key contradictory pieces of evidence relating to an adoption in Jardine,
above at para 29, he acknowledged that “deference may still have been owed to the
officer and the decision found to fall within the range of acceptable outcomes
defensible in respect of the facts and law had it been clear that the officer
properly considered the totality of the evidence.”
[20]
The
Officer considered the totality of the evidence in this case and is entitled to
considerable deference in the assessment of facts. There was no key piece of
contradictory evidence ignored by the Officer amounting to an error as in Jardine,
above.
[21]
The
Applicants’ affidavits confirm much of the information presented in the
Officer’s decision and the concerns raised amount to a disagreement with the
exact wording used and weighing of the evidence. As the Officer’s assessments
are within the range of possible, acceptable outcomes, the Court’s intervention
is unwarranted.
B. Did
the Officer Breach Procedural Fairness or Fetter Jurisdiction by Seeking Third
Party Assistance in Preparing her Reasons?
[22]
The
Applicants also take issue with the Officer seeking assistance from a Program
Coordinator in the preparation of her reasons. They characterize this as an
error going to jurisdiction, since the Officer has a statutory mandate to
consider and render the decision that cannot be shared with others.
[23]
However,
I am prepared to agree with the Respondent that there was no fettering of
jurisdiction or breach of procedural fairness in this instance. The Program
Coordinator provided editing suggestions related to style and formatting or
adding certain details. Despite some minor adjustments to the wording, the
drafts and subsequent refusal letter clarify that the Officer reached her own
conclusion and wrote the reasons independently. The suggestions provided did
not relate to or affect the final outcome.
VI. Conclusion
[24]
The
Officer was reasonable in her assessment of the evidence and concern that the
adoption had been entered into for the purpose of acquiring a status or
privilege in relation to immigration or citizenship contrary to subsection
5.1(1)(d). There was no breach of procedural fairness or fettering of
jurisdiction in having third party assistance for editing where the Officer remains
the sole decision-maker.
[25]
Accordingly,
this application is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application is dismissed.
“ D.
G. Near ”
Email this Content