Date: 20110517
Docket: T-1158-10
Citation: 2011 FC 565
Ottawa, Ontario, May 17, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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COLLIN JARDINE
SYLVIA ANNETTA JARDINE
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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]
The
applicants, Sylvia and Collin Jardine, immigrated to Canada in 2003 and
applied for citizenship for their adopted child, Melissa, in 2009 under the new
“direct route” provided by section 5.1 of the Citizenship Act (“Act”).
An immigration officer at the High Commission in Port of Spain, Trinidad and
Tobago refused the application on the grounds that a genuine parent-child
relationship had not been established, that it was in the best interest of the
child to remain in Guyana and that the officer could not be satisfied that it
was not an adoption of convenience entered into for the sole purpose of
acquiring status in Canada.
[2]
This
application for judicial review is brought under section 18.1of the Federal
Courts Act, R.S.C. 1985, c. F-7. These are my reasons for allowing the
application.
BACKGROUND
[3]
The
applicants Sylvia Annetta Jardine and Collin Jardine are citizens of Guyana and now also
of Canada. They are the
adoptive parents and the aunt and uncle of Melissa. Melissa was adopted by them
at the age of 17. The female applicant, Sylvia, is Melissa’s natural aunt. Melissa
was three days old when her biological parents immigrated to Aruba and left her
with Sylvia as they were unable to care for her. Melissa lived with Sylvia and
Sylvia’s parents (Melissa’s grandparents) until Sylvia married Collin in 1997. Shortly
thereafter, Melissa lived with the applicants.
[4]
In
2001, the applicants decided to immigrate to Canada and were
told by officials at the Canadian High Commission in Guyana that they
would have to formally adopt Melissa in order to include her as a dependent on
their application. In April of that year they contacted the Guyana Adoption
Board to begin the adoption. There they were advised that they could only initiate
the process after they obtained their permanent residence in Canada. Because
they were acting on their own behalf, the applicants relied on this advice and
submitted their immigration application without including Melissa’s name.
[5]
The
applicants became permanent residents of Canada in March
2003. In April 2003 they returned to Guyana to begin the adoption
process. They submitted all the necessary documentation to the Guyana Adoption
Board in October 2003. One year later they were told they could not adopt
Melissa in Guyana and would have to do so in Canada. At the same
time, the Canadian High Commission informed them that if they remained outside Canada for more
than two years they would lose their status.
[6]
In
July 2005, the applicants contacted a Canadian adoption agency and were
informed that the process would cost between CDN $10, 000 and $15, 000. They
were unable to afford this at the time and so waited until February 2007 when
they had saved enough money to re-initiate the process here. In April 2009, the
applicants were granted Canadian citizenship. They then submitted Part 1 of the
Application for Canadian citizenship for Melissa. In June of that year they visited
Melissa in Guyana. During that
time, Melissa’s adoption was officially approved. The applicants then submitted
all outstanding documents for Part 2 of Melissa’s citizenship application.
[7]
In
early September 2009, Melissa was contacted by the High Commission to come for
an interview in Georgetown, Guyana on September 22, 2009. The
purpose of the interview was to assess the genuineness of the adoption. She was
told that she could bring her guardian and/or her natural parents. The
applicants were not directly contacted; they became aware of the interview
through Melissa. They had just travelled back to Canada from Guyana and asked
Melissa’s grandparents, with whom she had been staying, to attend the interview.
[8]
In
October 2009, Melissa received a letter from the Canadian High Commission in Trinidad
& Tobago requesting additional information. The applicants submitted a
number of documents for review. The decision was issued on May 10, 2010.
DECISION:
[9]
There
was no question as to the legality of the adoption. The officer was not satisfied
that the applicants had demonstrated a genuine parent/child relationship as required
under paragraph 5.1(1)(b) of the Act. In particular, the officer noted
the following:
·
That
since Melissa’s parents left for Aruba in approximately 1994,
it appears as though she has been cared for largely by her grandparents. Although
the applicants have had a role in Melissa’s upbringing, the primary caregivers
are actually the grandparents;
·
The
means by which the applicants communicated with Melissa while they were in
Canada and she was in Guyana included calling, texting and sending
letters and cards. The officer concluded these were behaviours one would expect
from an aunt-uncle/niece relationship, not a parent-child one;
·
In
the interview, Melissa referred to the applicants as her aunt and uncle;
·
There
was no proof that she lived with the applicants after they got married; and
·
Limited
documentation was submitted to support the parent-child relationship.
[10]
The
officer then concluded that it was an adoption entered into for the purpose of
obtaining status or benefit. She based this finding on the following:
·
Melissa
was adopted at the age of 17 and had been taken care of since she was three-days
old by her grandparents;
·
The
applicants did not visit Melissa in Guyana from 2005 to 2009;
·
Limited
documentation was submitted to prove a parent/child relationship between
Melissa and the adoptive parents before the adoption in 2009;
·
The
adoption took place in June 2009; six years after the applicants became
permanent residents in Canada.
[11]
Finally,
in assessing the best interest of the child, the officer considered that in the
interview, Melissa confirmed she still had family and friends in Guyana, that she is
cared for by her grandparents and that she stated that she needs to be adopted
in order to further her studies. As such, the officer considered there to be
adequate adult supervision, financial support and emotional support for Melissa
in Guyana.
ISSUES:
[12]
The
applicants raised a number of issues about the officer’s decision. They argue,
among other things, that they were denied procedural fairness because the child
was called in for an interview at the High Commission, shortly after their
return to Canada, and because
the request for further information was addressed to the child rather than to
them. While it would appear to have been preferable for the applicants to have
been directly informed about the request for an interview and for the letter
for further particulars to have been sent to them, the respect shown for their
participatory rights overall was adequate, in my view.
[13]
The
applicants were given a sufficient opportunity to present their evidence and
representations to the officer before the decision was made. It was not unreasonable
for the officer to arrange an interview with Melissa, given her age and given that
she was told that she could bring her guardian and/or her natural parents with
her. I would not interfere with the decision on that basis.
[14]
In
my view, the determinative issue in this application is as follows:
·
Did
the officer properly consider the evidence that was submitted by the applicants?
RELEVANT
STATUTORY FRAMEWORK:
[15]
Effective
April 17, 2009, and pursuant to section 5.1 of the Citizenship Act, R.S.C., 1985, c. C-29, the
Minister of Citizenship and Immigration may grant citizenship to an adopted
minor child of a Canadian citizen if the adoption: was legal; created a genuine
parent child-relationship; was in the best interests of the adopted child, and
was not entered into primarily for the purpose of acquiring a status or
privilege in relation to immigration or citizenship. The test is conjunctive
meaning that all of these criteria must be met.
ANALYSIS:
Standard of Review
[16]
This
is the first judicial review heard by this Court under the new “direct route” to
acquiring Canadian citizenship for adopted children provided by s.5.1 of the Act.
Here, as in
other judicial reviews of decisions by federal tribunals that are largely
fact-driven, the decision-maker is afforded a high degree of deference due to
her or his specialized expertise in the field. This was confirmed by the Supreme Court
of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 and again in Canada (Minister of Citizenship and Immigration)
v. Khosa,
2009 SCC 12, [2009] 1
S.C.R. 339.
[17]
It
follows that decisions of this kind must be reviewed on a standard of
reasonableness. Under such a standard, the Court will consider "the
existence of justification, transparency and intelligibility within the
decision-making process" and "whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law." (Dunsmuir at paragraph 47; Khosa at para
59).
[18]
Pursuant
to paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C., 1985, c. F-7,
however, the Court has jurisdiction to intervene in order to grant relief if it
is determined that the officer erred by ignoring evidence or by drawing
unreasonable inferences from the evidence. See, for example: Rudder v. Canada (Minister of
Citizenship and Immigration), 2009 FC 689, 82 Imm. L.R. (3d) 173 at para 34.
Did the officer properly
consider all of the evidence?
[19]
The
applicants submit that the officer erred in failing to properly consider all of
the evidence. In particular, they point to the notarized statement, the
responses given by Melissa’s grandparents during the September 2009 interview,
family photographs, Melissa’s report and health card, Western Union receipts as
well as Melissa’s own interview responses from the interview, all of which,
they say, point to a genuine parent/child relationship not entered into for the
purpose of acquiring status or privilege and one that would support Melissa’s
best interests.
[20]
The
respondent notes that the officer was not required to specifically list every
piece of evidence and asserts that the decision made was a reasonable one, based
on the information provided. The officer acknowledged the applicants’ role in
Melissa’s life but nonetheless found it was not one that went beyond the normal
aunt-uncle-niece relationship. This decision was open to the officer. Based on
the interview, it was also reasonable that the officer found Melissa to be
seeking citizenship for the purpose of pursuing her post-secondary studies in Canada.
[21]
It is well established that while a decision
maker is presumed to have considered all of the evidence, where relevant
evidence runs contrary to the decision maker’s finding on the central issue,
there is an obligation to analyse such evidence and explain why it has not been
accepted or why other evidence is preferred instead: Pradhan v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1500, 52 Imm. L.R. (3d)
231 at para 14; Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration) (1998), 157 F.T.R. 35,
[1998] F.C.J. No. 1425 (QL).
[22]
Certain key pieces of evidence before
the officer in this application include: the transcript of the September 2009
interview, pictures of Melissa with the applicants, a
notarized statement from the applicants explaining the circumstances of
adoption, a copy of a Child Health Passport with Sylvia listed as Melissa’s guardian,
Western Union receipts in the name of the grandparents for 2007, 2008 and 2009,
and a progress report card from Melissa’s primary school (1999-2000) also
showing Sylvia as Melissa’s guardian. I note that the Western Union receipts do
not appear in the certified record but conclude that they must have been before
the officer as she makes reference to them in the CAIPS notes.
[23]
Despite having listed these items in the CAIPS
notes and having referred to some of them in the decision, the officer’s
reasons do not show that they were considered in a meaningful way. For
example, the notarized statement explained Melissa’s living situation during
her childhood, i.e. that she stayed with both Sylvia and her grandparents until
Sylvia and Collin married, after which she moved in with the applicants. This
is further reinforced by the grandparents’ responses during the interview:
Q: Why didn’t she [Melissa] go with them [her biological parents, to Aruba]?
A: My son was young. They were both young and they brought the child to
us at 3-days old. And my daughter [Sylvia] decided to take care of the baby
since the beginning.
Q: How long did she take care of the baby?
A: For all the time until she went to Canada.
Q: In your house or her house?
A: Before she got married, she was under her [sic] home. And after that,
when she got married, Melissa was with them.
Q: Why didn’t she adopt her before?
A: The procedures started a few years ago. Before she went to Canada.
[…]
Q: Do you know why her adoptive parents adopted her?
A: The adoption was there before. My son left the child and she [Sylvia]
took care of her since. We are getting old in age.
[…]
Q: Do you know why her adoptive parents didn’t adopt her brothers and
sisters?
A: Because took care of Melissa from baby.
Notwithstanding
this evidence, the officer found that “there is no proof to suggest she lived
with the applicants after they got married”.
[24]
In a similar vein, and as also explained in the
notarized statement, it was Sylvia, and later both applicants together, that
took responsibility for many primary care giving tasks in Melissa’s life. These
include: taking her to doctors’ appointments, taking her to school, attending
school meetings, etc. This is corroborated by Melissa’s health and report
cards, both of which name Sylvia as Melissa’s guardian. The officer nonetheless
concluded that “it appears as though she [Melissa] has been cared for largely by
her grandparents”.
[25]
The
officer also appears not to have given any thoughtful consideration to why the
applicants did not visit Melissa in Guyana between 2005 and 2009
and why the adoption took six years. As highlighted in the notarized statement,
this was because: (a) they had been given inaccurate advice by the Guyana
Adoption Board with respect to the steps needed in order to apply for adoption;
(b) they were told by the Canadian High Commission that they had to stay in
Canada for two years in order to ensure that they maintained permanent
residence; and (c) they couldn’t afford to return to Guyana to visit Melissa and
to be present for the adoption which took place in 2009.
[26]
The
applicants’ explanations are reasonable given the fact that they were acting on
their own, were responsible for Melissa’s adoption, the cost of which was
reported as being between $10, 000 and $15, 000, and were in the process of
re-establishing themselves in a new country. The officer thus erred in drawing
a negative inference from the fact that the applicants had not applied for the
adoption earlier. In other words, she did not consider the evidence that
presented an alternative perspective to the story as a whole.
[27]
Finally,
the Western Union transfer receipts demonstrate the ways in which the
applicants had been supporting Melissa financially, even in their absence. This
was also recognized by the grandparents in the interview:
Q: Do her
adoptive parents send money to you before the adoption?
A: Yes.
Every month they send money to support her to buy clothes, food and pocket
money.
[…]
Q: Do her
adoptive parents send money to you since the adoption?
A: They still
send money to upkeep Melissa.
[28]
The
Western Union receipts were referenced in the CAIPS notes and the officer did
acknowledge that the applicants “provided some financial support” but erred by
not analysing why the routine financial contributions as evidenced by the Western
Union
receipts and as confirmed by the grandparents in the interview did not point to
genuineness of the parent/child relationship.
[29]
There
is sufficient evidence on the record to suggest that this adoption was genuine,
was in the best interests of the adoptive child and was not entered into for
the purpose of acquiring status or benefit. However, 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. The
officer’s failure to articulate her rationale for attributing no weight to
certain key pieces of evidence, especially significant evidence that is contrary
to her ultimate determination, requires a finding that the decision was made in
error.
[30]
The
applicants have requested costs in the amount of $4500.00 be awarded on the
ground that their reunification with their adopted daughter in Canada has been
unnecessarily delayed by the errors made in the assessment of their
application. While I have reached the conclusion that the decision must be
overturned I do not think that this is a case in which an award of costs is
warranted. Much of the delay in the family’s reunification was as a result of
decisions made by the applicants. There were a number of “red flags” about this
adoption that warranted a closer examination, notably the lengthy period
between the applicants’ visits to see Melissa, evidence of an attempt to have
her rejoin her biological parents and uncertainty about the role of the grandparents
in her life. In addition, there was no bad faith or procedural abuse shown on
the part of the respondent.
[31]
The
applicants have also requested that I direct that they be permitted to file new
evidence and be accorded a further opportunity to attend an interview on the
reconsideration of their application. While it may be advisable for the
respondent to accommodate such requests, I do not consider it appropriate for
the Court to direct how the respondent conducts its reassessment of the
application. Should it prove necessary, the applicants may seek the further
intervention of the Court on a fresh application for judicial review.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
the
application is granted and the decision of the Second Secretary (Immigration)
of the High Commission of Canada in Port of Spain, Trinidad to refuse
the applicants’ application for Canadian Citizenship for their adopted daughter
Melissa Cleopatra Jardine is quashed;
2. the
applicants’ application for Canadian Citizenship for Melissa Cleopatra Jardine is
remitted to the High Commission of Canada in Port of Spain, Trinidad for reconsideration
by a different immigration officer in accordance with the Court’s reasons for
decision;
3. the parties
shall bear their own costs.
“Richard
G. Mosley”
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