Date: 20110309
Docket: T-506-10
Citation: 2011 FC 272
Ottawa, Ontario, March 9,
2011
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
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SALVADOR MARTINEZ
GARCIA RUBIO
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Applicant
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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]
Salvador
Martinez Garcia Rubio (the Applicant) was a minor when his Canadian uncle
applied to adopt him. However, he had become an adult by the time the Canadian
adoption order was made. In a decision dated January 26, 2010 (the
Decision), his subsequent application for citizenship was denied. These reasons
deal with application for judicial review of that Decision pursuant to section
18.1 of the Federal Courts Act, RSC 1985, c F-7 and, for the following
reasons, the application for judicial review will be allowed.
THE LEGISLATIVE CONTEXT
[2]
Subsection
5.1(2) of the Citizenship Act, RS 1985, c C-29 deals with adult
adoptions. It says:
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(2) 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 at least 18 years of
age if
(a)
there was a genuine relationship of parent and child between the person and
the adoptive parent before the person attained the age of 18 years and at the
time of the adoption; and
(b)
the adoption meets the requirements set out in paragraphs (1)(c) and (d).
[…]
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(2) 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
âgée de dix-huit ans ou plus, si les conditions suivantes sont
remplies :
a) il existait un véritable lien affectif
parent-enfant entre l’adoptant et l’adopté avant que celui-ci n’atteigne
l’âge de dix-huit ans et au moment de l’adoption;
b) l’adoption satisfait aux conditions prévues
aux alinéas (1)c) et d).
[…]
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[3]
Paragraphs
5.1(1)(c) and (d) read as follows:
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(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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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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[4]
The
Citizenship Regulations, SOR/93-246 provide in subsection 5.3(3) that:
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(3) The following factors
are to be considered in determining whether the requirements of subsection
5.1(2) of the Act have been met in respect of the adoption of a person
referred to in subsection (1):
(a)
whether, in the case a person who as been adopted by a citizen who resided in
Canada at the time of the adoption,
(i)
a competent authority of the province in which the citizen resided at the
time of the adoption has stated in writing that it does not object to the adoption,
and
(ii)
the pre-existing legal parent-child relationship was permanently severed by
the adoption; and
(b)
whether, in all other cases, the pre-existing legal parent-child relationship
was permanently severed by the adoption.
[…]
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(3) Les facteurs ci-après
sont considérés pour établir si les conditions prévues au paragraphe 5.1(2)
de la Loi sont remplies à l’égard de l’adoption de la personne visée au
paragraphe (1) :
a)
dans le cas où la personne a été adoptée par un citoyen qui résidait au Canada
au moment de l’adoption :
(i) le
fait que les autorités compétentes de la province de résidence du citoyen au
moment de l’adoption ont déclaré par écrit qu’elles ne s’opposent pas à
celle-ci,
(ii) le
fait que l’adoption a définitivement rompu tout lien de filiation
préexistant;
b)
dans les autres cas, le fait que l’adoption a définitivement rompu tout lien
de filiation préexistant.
[…]
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THE DECISION
[5]
The
decision-maker set out the above-noted provisions and then provided the
following reasoning (the Reasons):
[…]
You declared that you had spent all your
life with your biological parents and that after November 2008 you moved to Canada to live with the brother of
your biological father and his spouse. You stated that while you were in Canada
you had kept contact with your biological parents by telephone on birthdays,
for Christmas, and to share news; you also indicated that on your current
travel to Mexico you were staying with them.
Furthermore, you informed me that sometimes you referred to your biological
parents as “mom” and “dad”.
It is therefore my opinion, that the ties
with your biological parents have not been severed, that your adoption has been
conducted primarily for the purpose of acquiring a status or privilege under
the Citizenship Act and that such adoption is not in the best interests
of you as it does not create a genuine parent-child relationship with your
adoptive parents.
In addition, and based on the information
provided in your application, although you were in Canada when the adoption was made, your legal
residence was in Mexico. The adoption was not in
accordance with the Mexican law and was not an international adoption. Under
the Mexican law, you remain the son of your biological parents. Furthermore,
your birth certificate shows your biological parents on it and your adopting
father is blood related to you.
DISCUSSION
[6]
In
my view, there has been a failure of natural justice in that the Reasons are
wholly inadequate. They omit mention of two important facts. First, that the affidavit
evidence showed that the Applicant’s uncle had paid for his schooling in Mexico since
kindergarten and, second, that the uncle initially tried to adopt the Applicant
under Mexican law when he was fourteen years old. At that time his parents had
just divorced.
[7]
As
well, the Reasons do not explain the relevance of the conclusion that “the ties
with your biological parents have not been severed.” This is important because
the legislation speaks of “legal ties” and they were clearly severed when the
Applicant’s parents consented to the adoption. Finally, the six facts listed in
the final paragraph of the Reasons appear to be irrelevant. At a minimum, the
Decision should have included an explanation of their significance.
CONCLUSION
[8]
The
Applicant is entitled to a logical, reasoned decision which demonstrates that
the decision-maker understood the salient facts. The Decision, in this case,
does not meet this standard.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application is allowed.
This matter
is hereby referred back for re-determination by a different decision-maker who
is to consider, inter alia:
(i)
The
factors described in Citizenship and Immigration Canada’s manual entitled CP 14
Adoption in sections 6.5, 6.7, 10.9, 10.10; and
(ii)
The
factors described in the case of Severina Buenavista v The Minister of
Citizenship and Immigration, 2008 FC 609, [2008] FCJ No 753 at para 8.
The Applicant
is entitled to submit fresh evidence and to make submissions within a
reasonable timeframe to be set by the decision maker.
The decision maker may
interview the Applicant and his uncle.
“Sandra
J. Simpson”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-506-10
STYLE OF CAUSE: Salvador Martinez Garcia Rubio v the
Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 17, 2010
REASONS FOR JUDGMENT: SIMPSON
J.
DATED: March 9, 2011
APPEARANCES:
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Alla Kikinova
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FOR THE APPLICANT
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Jamie Todd
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FOR THE RESPONDENT
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Neal Samson
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Michael Loebach
London, Ontario
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FOR THE APPLICANT
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MYLES J. KIRVAN
Deputy Attorney General of Canada
Toronto, Ontario
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FOR THE RESPONDENT
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