Date: 20070207
Docket: IMM-3357-06
Citation: 2007 FC 140
Montréal, Quebec, the 7th day of February 2007
PRESENT:
THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
GLADYS
ANNOR
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a decision of the Immigration Appeal
Division (IAD) of the Immigration and Refugee Board (IRB) delivered on May 29,
2006, dismissing Gladys Annor’s (applicant) appeal relating to the refusal of
the sponsored application for a permanent resident visa made by Isaac Sarkwa,
her purported adopted son.
I. Facts
[2]
On
February 17, 2000, the applicant and her husband, in accordance with the laws
of Canada and Ghana, adopted their nephew Isaac Sarkwa, the biological son of
the applicant’s husband’s brother.
[3]
In
December 2001, the applicant and her husband filed their sponsorship
undertaking form for Isaac Sarkwa.
[4]
On
February 3, 2004, visa officer Xochi Bryan (the officer) informed Mr. Sarkwa in
writing that his sponsored application for a permanent resident visa had been
refused under section 4 of the Immigration and Refugee Protection
Regulations, S.O.R./2002-227 (the Regulations) because his adoption was
deemed to be not genuine and was entered into primarily for the purpose of
acquiring a status or privilege under the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA). The officer found that even though Mr.
Sarkwa’s adoption was in accordance with the laws of Canada and Ghana, Mr.
Sarkwa’s country of origin, he could not be characterized as a “dependent
child” of the applicant because they did not have a genuine parent‑child
relationship.
[5]
On March
3, 2004, Alfred Benjamin Annor (Mr. Annor), the applicant’s husband, filed an
appeal against the officer’s decision with the IAD. An appeal hearing was held
on May 30, 2005. At the outset of this hearing, counsel for Mr. Annor stated
that Mr. Annor had died in April 2004 and that his wife, the applicant in this
case, was proceeding with the appeal in her deceased husband’s stead.
[6]
At the May
30, 2005, hearing, the members of the IAD panel decided that it would treat
Ms. Annor’s request to proceed with her deceased husband’s appeal as a
preliminary motion. After requesting written submissions from the Minister and
the appellant, member Eric Whist of the IAD decided on September 28, 2005, that
Ms. Annor could continue with the appeal of the officer’s decision commenced by
her deceased husband.
[7]
The appeal
of the officer’s decision was consequently referred to another member of the
IAD. A hearing was held before member Hazelyn Ross (member Ross) on May 1,
2006. On May 28, 2006, member Ross signed a decision dismissing the
appeal. In the decision, member Ross dismissed the appeal by reason of no
genuine parent-child relationship existing between the applicant and Isaac
Sarkwa, resulting in the adoption being not genuine even though it was in
accordance with the laws of Canada and Ghana, because it was entered into
primarily for the purpose of acquiring a status or privilege under the IRPA.
This decision is the subject of the present judicial review.
II. Issues
(1) Was it a violation of
procedural fairness in this case to have five members of the IRB hear the case
at different times?
(2) Were the findings of fact by
member Ross patently unreasonable?
(3) Did member Ross err in not
considering international law or the concept of reuniting families, which is
one of the objectives of the IRPA?
III. Applicable statutory provisions
[8]
Section
117 of the Regulations sets out the criteria for an adoption to be deemed in
accordance with the IRPA. In particular it requires that a purported adopted
child be a “dependent child” and that the adoption be characterized by a
genuine parent‑child relationship. The relevant provisions in section 117
are as follows:
|
117. (1) A foreign national is a member of the family class if, with
respect to a sponsor, the foreign national is
…
(b) a dependent
child of the sponsor;
…
(2) A foreign national who is the
adopted child of a sponsor and whose adoption took place when the child was
under the age of 18 shall not be considered a member of the family class by
virtue of that adoption unless it was in the best interests of the child
within the meaning of the Hague Convention on Adoption.
(3) The adoption referred to in
subsection (2) is considered to be in the best interests of a child if it
took place under the following circumstances:
(a) a competent
authority has conducted or approved a home study of the adoptive parents;
(b) before the
adoption, the child's parents gave their free and informed consent to the
child's adoption;
(c) the adoption
created a genuine parent-child relationship;
(d) the adoption was
in accordance with the laws of the place where the adoption took place;
(e) the adoption was
in accordance with the laws of the sponsor's place of residence and, if the
sponsor resided in Canada at the time the adoption took place, the competent
authority of the child's province of intended destination has stated in writing
that it does not object to the adoption;
(f) if the adoption
is an international adoption and the country in which the adoption took place
and the child's province of intended destination are parties to the Hague
Convention on Adoption, the competent authority of the country and of the
province have stated in writing that they approve the adoption as conforming
to that Convention; and
(g) if the adoption
is an international adoption and either the country in which the adoption
took place or the child's province of intended destination is not a party to
the Hague Convention on Adoption, there is no evidence that the adoption is
for the purpose of child trafficking or undue gain within the meaning of that
Convention.
[Emphasis added]
|
117. (1) Appartiennent à la catégorie du
regroupement familial du fait de la relation qu’ils ont avec le répondant les
étrangers suivants :
[…]
b)
ses enfants à charge;
[…]
(2) N’est pas
considéré comme appartenant à la catégorie du regroupement familial du fait
de sa relation avec le répondant l’étranger qui, ayant fait l’objet d’une
adoption alors qu’il était âgé de moins de dix-huit ans, est l’enfant adoptif
de ce dernier, à moins que l’adoption n’ait eu lieu dans l’intérêt supérieur
de l’enfant au sens de la Convention sur l’adoption.
(3) L’adoption
visée au paragraphe (2) a eu lieu dans l’intérêt supérieur de l’enfant si les
conditions suivantes sont réunies :
a)
des autorités compétentes ont fait ou ont approuvé une étude du milieu
familial des parents adoptifs;
b)
les parents de l’enfant ont, avant l’adoption, donné un consentement
véritable et éclairé à l’adoption de l’enfant;
c)
l’adoption a créé un véritable lien affectif parent-enfant entre l’adopté
et l’adoptant;
d)
l’adoption était, au moment où elle a été faite, conforme au droit applicable
là où elle a eu lieu;
e)
l’adoption est conforme aux lois du lieu de résidence du répondant et, si
celui-ci résidait au Canada au moment de l’adoption, les autorités
compétentes de la province de destination ont déclaré par écrit qu’elle ne
s’y opposaient pas;
f)
s’il s’agit d’une adoption internationale et que le pays où l’adoption a eu
lieu et la province de destination sont parties à la Convention sur
l’adoption, les autorités compétentes de ce pays et celles de cette province
ont déclaré par écrit qu’elles estimaient que l’adoption était conforme à
cette convention;
g)
s’il s’agit d’une adoption internationale et que le pays où l’adoption a eu
lieu ou la province de destination ne sont pas parties à la Convention sur
l’adoption, rien n’indique que l’adoption projetée a pour objet la traite de
l’enfant ou la réalisation d’un gain indu au sens de cette convention.
[Je souligne]
|
[9]
Section 2
of the Regulations provides the following definition for “dependent child”:
|
“
“dependent child”, in respect of a parent, means a child who
(a) has one of the
following relationships with the parent, namely,
(i) is the biological child
of the parent, if the child has not been adopted by a person other than the
spouse or common-law partner of the parent, or
(ii) is the adopted child
of the parent; and
(b) is in one of the
following situations of dependency, namely,
(i) is less than 22 years
of age and not a spouse or common-law partner,
(ii) has depended
substantially on the financial support of the parent since before the age of
22 — or if the child became a spouse or common-law partner before the age of
22, since becoming a spouse or common-law partner — and, since before the age
of 22 or since becoming a spouse or common-law partner, as the case may be,
has been a student
(A) continuously enrolled
in and attending a post-secondary institution that is accredited by the
relevant government authority, and
(B) actively pursuing a
course of academic, professional or vocational training on a full-time basis,
or
(iii) is 22 years of age or older and has depended substantially on the
financial support of the parent since before the age of 22 and is unable to
be financially self-supporting due to a physical or mental condition. (enfant
à charge)
|
D « enfant à charge » L’enfant qui :
a) d’une part, par rapport à l’un ou l’autre de ses
parents :
(i) soit en est l’enfant biologique et n’a pas été adopté par une
personne autre que son époux ou conjoint de fait,
(ii) soit en est l’enfant adoptif;
b) d’autre part, remplit l’une des conditions
suivantes :
(i) il est âgé de moins de vingt-deux ans et n’est pas un époux ou
conjoint de fait,
(ii) il est un étudiant âgé qui n’a pas cessé de dépendre, pour
l’essentiel, du soutien financier de l’un ou l’autre de ses parents à compter
du moment où il a atteint l’âge de vingt-deux ans ou est devenu, avant cet
âge, un époux ou conjoint de fait et qui, à la fois :
(A) n’a pas cessé d’être inscrit à un établissement d’enseignement
postsecondaire accrédité par les autorités gouvernementales compétentes et de
fréquenter celui-ci,
(B) y suit activement à temps plein des cours de formation générale,
théorique ou professionnelle,
(iii) il est âgé de
vingt-deux ans ou plus, n’a pas cessé de dépendre, pour l’essentiel, du soutien
financier de l’un ou l’autre de ses parents à compter du moment où il a
atteint l’âge de vingt-deux ans et ne peut subvenir à ses besoins du fait de
son état physique ou mental. (dependent child)
|
[10]
Subsection
3(2) of the Regulations provides the following definition for “adoption”:
|
3(2) For the purposes of these Regulations,
“adoption”, for greater certainty, means an adoption that creates a legal
parent-child relationship and severs the pre-existing legal parent-child
relationship.
|
3(2) Pour l’application du présent règlement, il
est entendu que le terme « adoption » s’entend du lien de
droit qui unit l’enfant à ses parents et qui rompt tout lien de filiation
préexistant.
|
[11]
Under
section 4 of the Regulations, a foreign national cannot be considered an
“adopted child” if the adoption is not genuine and was entered into primarily
for the purpose of acquiring any status or privilege under the IRPA:
|
4. For the purposes of these Regulations, a
foreign national shall not be considered a spouse, a common-law partner, a
conjugal partner or an adopted child of a person if the marriage, common-law
partnership, conjugal partnership or adoption is not genuine and was
entered into primarily for the purpose of acquiring any status or privilege
under the Act.
[Emphasis added]
|
4. Pour l’application du présent
règlement, l’étranger n’est pas considéré comme étant l’époux, le conjoint de
fait, le partenaire conjugal ou l’enfant adoptif d’une personne si le
mariage, la relation des conjoints de fait ou des partenaires conjugaux ou l’adoption
n’est pas authentique et vise principalement l’acquisition d’un statut ou
d’un privilège aux termes de la Loi.
[Je souligne]
|
IV. Analysis
(1) Was it a violation of
procedural fairness in this case to have five members of the IRB hear the case
at different times?
[12]
The
applicant submits that the fact that five different members of the IRB heard
her case at “different times” prior to the issuance of a final decision
regarding her appeal breaches the rules of procedural fairness. In her
submission, the applicant refers to the fact that three members of the IAD were
present at the hearing of May 30, 2005, that member Whist issued a decision on
September 28, 2005, on the preliminary motion concerning whether the
applicant could proceed with the appeal in her deceased husband’s stead, and
that member Ross ruled on the appeal on its merits in her decision of
May 28, 2006.
[13]
The three
members present at the hearing of May 30, 2005, decided only that a decision on
the preliminary motion was necessary before hearing the appeal on its merits.
They requested written submissions from the parties, and they indicated that
they were not seized of this matter. As for the decision of member Whist on
September 28, 2005, section 25 of the Immigration Appeal Division Rules,
S.O.R./2002-230 (the Rules), allows the IAD to require the parties to proceed
in writing, and, under sections 57 and 58 of the Rules, the IAD may, on its own
initiative, do whatever is necessary to deal with a matter raised during an
appeal. Consequently, that fact that member Whist dealt with the preliminary
issue on the basis of the written submissions only does not in any way breach
the rules of procedural fairness.
[14]
Ultimately,
there were only two decision makers who made a decision on the substantive issue
of whether a permanent resident visa would be granted to Isaac Sarkwa, namely
the officer who made the initial decision and member Ross, who made the
decision dismissing the appeal of the officer’s decision. Since only member
Ross heard the appeal on its merits and this same member made the decision
concerning the applicant’s appeal, no breach of the rules of procedural
fairness occurred.
[15]
In any
case, the applicant did not identify any prejudice able to justify a procedural
fairness argument. Moreover, during the hearing of May 1, 2006, the applicant
was at liberty to submit her evidence, and she did not object, nor at that time
raise a procedural fairness argument.
(2) Were the findings of fact by
member Ross patently unreasonable?
[16]
This
Court’s jurisprudence establishes that for reviewing questions of pure fact
decided by the IAD, the standard of review is patent unreasonableness (see Canada
(Minister of Citizenship and Immigration) v. Jessani (2001), 200 D.L.R.
(4th) 139, 2001 FCA 127).
[17]
The applicant
submits that, in her decision, member Ross did not consider evidence from the
applicant and her daughter and that, consequently, her finding that the
applicant and Isaac Sarkwa did not have a genuine parent‑child
relationship was patently unreasonable. In De Guzman v. Canada (Minister of
Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 28, the IAD
identified factors to be used in assessing the genuineness of a parent‑child
relationship between a parent and the purported adopted child. The IAD listed
the following factors:
(a)
motivation of the adopting parent(s) and;
(b) to a lesser extent,
the motivation and conditions of the natural parent(s);
(c) authority and
suasion of the adopting parent(s) over the adopted child;
(d) supplanting of the authority
of the natural parent(s) by that of the adoptive parents(s);
(e) relationship of the
adopted child with the natural parents(s) after adoption;
(f) treatment of the
adopted child versus natural children by the adopting parent(s);
(g) relationship between
the adopted child and adopting parent(s) before the adoption;
(h) changes flowing from
the new status of the adopted child such as records, entitlements, etc.,
including documentary acknowledgment that the [sic] is the son or
daughter of the adoptive parents; and
(i) arrangements and actions taken by the adoptive parent(s) as it
relates to caring, providing and planning for the adopted child.
-
The
applicant took a long time to adopt Isaac Sarkwa (more than 13 years);
-
Isaac
Sarkwa displayed a limited knowledge of his “sisters” during his interview with
the officer;
-
Before the
death of the child’s natural father, it was the father who had parental
authority over Isaac Sarkwa, even though the applicant and her husband had
already “adopted” him. However, the IAD did note that the applicant took on a
somewhat more important role in the child’s life after his natural father died
in 2004;
-
There was
not sufficient evidence showing that Isaac Sarkwa thought of the applicant as
his mother;
-
The
applicant visited the child three or four times over a period of almost 20
years, even though the applicant made other trips overseas.
[19]
Based on
the above‑mentioned evidence, I am of the opinion that the finding of
member Ross that there was no genuine parent‑child relationship between
the applicant and Isaac Sarkwa was not patently unreasonable. Therefore, this
Court cannot review this decision.
(3) Did member Ross err in not
considering international law or the concept of reuniting families, which is
one of the objectives of the IRPA?
[20]
Member
Ross did not err in not considering the concept of reuniting families, one of
the objectives of the IRPA. In her decision, member Ross found that the applicant’s
adoption of Isaac Sarkwa was not genuine because it was entered into primarily
for the purpose of acquiring a status or privilege under the IRPA. I do not see
how it is possible to find that an adoption that is not genuine owing to an
absence of a genuine parent‑child relationship goes against the IRPA’s
objective of reuniting families.
[21]
As for the
applicant’s claim of a violation of international law, the applicant never
submitted a concrete argument in this regard. In any case, I do not in any way
see how international law was violated in this case.
V. Conclusion
[22]
Based on
the foregoing reasons, the Court’s intervention is not warranted in this case.
Member Ross’s decision is reasonable, and the application for judicial review
is therefore dismissed.
[23]
The
parties were invited to submit a question to be certified but none was
submitted.
JUDGMENT
THE COURT
ORDERS THAT:
-
The
application for judicial review be dismissed.
-
There is
no question to be certified.
“Simon
Noël”
Certified
true translation
Gwendolyn
May, LLB
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