Date: 20080514
Docket: IMM-4500-07
Citation: 2008 FC 609
Toronto, Ontario, May 14, 2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
SEVERINA BUENAVISTA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Severina Buenavista
seeks judicial review of a decision of the Immigration Appeal Division of the
Immigration and Refugee Board refusing to approve the sponsorship of Ms. Buenavista’s
two adopted children. The IAD found that Ms. Buenavista and her husband’s
adoption of the husband’s niece and nephew had been carried out for immigration
purposes, and had not resulted in the establishment of a genuine parent/child
relationship.
[2]
Ms. Buenavista submits
that the IAD erred by focusing on the nature and extent of the children’s
ongoing relationships with their birth parents, and by not properly taking all
of the relevant factors into account in its analysis. Ms. Buenavista also takes
issue with the weight ascribed to certain evidence by the IAD.
[3]
For the reasons that
follow, I am satisfied that the IAD did not err as alleged, and that the IAD’s
decision was entirely reasonable. As a consequence, the application will be
dismissed.
Standard of
Review
[4]
Both parties agree
that the standard of review to be applied to the IAD’s decision is that of
reasonableness. Given the factually-intensive nature of the issue that
confronted the IAD, I agree that the decision should be reviewed on the
reasonableness standard.
[5]
As the Supreme Court
of Canada recently stated in Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, in reviewing a decision against the
reasonableness standard, a reviewing court must consider the justification,
transparency and intelligibility of the decision-making process. The court must
also consider whether the decision falls within the range of possible
acceptable outcomes which are defensible in respect of the facts and law: see Dunsmuir at paragraph 47.
Analysis
[6]
To be eligible for
sponsorship, an adopted child must be a member of the “family class” as defined
in section
117 of the Immigration and Refugee Protection Regulations.
Amongst other things, the adoption must have
created a genuine parent-child relationship.
[7]
Moreover, section 4 of the
Regulations, provides that a foreign national will not be considered to be an
“adopted child” for sponsorship purposes, if the adoption is not genuine and
was entered into primarily for the purpose of acquiring any status or privilege
under the Immigration and Refugee Protection Act.
[8]
In
assessing the genuineness of parent/child relationships, the jurisprudence
teaches that the factors to be considered include:
(a) the
motivation of the adopting parents;
(b) to a lesser
extent, the motivation and conditions of the natural parents;
(c) the authority and
suasion of the adopting parents over the adopted child;
(d) the supplanting
of the authority of the natural parents by that of the adoptive parents;
(e) the relationship
of the adopted child with the natural parents after adoption;
(f) the treatment of
the adopted child versus natural children by the adopting parents;
(g) the relationship
between the adopted child and adopting parents before the adoption;
(h) any changes
flowing from the new status of the adopted child such as records, entitlements,
etc., including documentary acknowledgment that the child is the son or
daughter of the adoptive parents; and
(i) the arrangements
and actions taken by the adoptive parents as it relates to caring, providing
and planning for the adopted child.
[9]
This
is not an exhaustive list, and other factors may be of relevance in specific
cases: see, for example, Annor v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 190, at
paragraph 17, citing the decision of the IAD in De Guzman v. Canada
(Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d)
28.
[10]
A review of the
decision discloses that while the IAD was certainly concerned with respect to
the serious conflicts in the evidence relating to the nature and extent of the
children’s ongoing relationships with their birth parents, its analysis was by
no means confined to this issue.
[11]
By way of example,
the IAD specifically addressed Ms. Buenavista’s motivation for adopting the
children, making specific reference to the medical evidence attesting to the
fact that she could not have children of her own. The IAD also considered the
motivation of the birth parents in giving up the children for adoption.
[12]
The IAD also addressed
the nature and extent of the relationship between the children and their adoptive parents,
noting significant discrepancies in the evidence with respect to when it was
the male child first met his sponsors, the frequency of the telephone contact
between Ms. Buenavista and her adopted daughter, and the nature of the financial
support provided by Ms. Buenavista and her husband to the children and to other
members of their extended family still in the Philippines.
[13]
The
IAD was also quite justifiably concerned about the limited amount of
documentary evidence with respect to contact between the children and their
adoptive parents, particularly for the period before their application for
permanent residence was first refused. The weight to be ascribed to the
documentary evidence generated after the refusal was a matter for the IAD to
determine.
[14]
Moreover,
the very serious
contradictions and inconsistencies in the evidence as to the nature and extent
of the children’s ongoing relationships with their birth parents led the IAD to
conclude that Ms. Buenavista and the two children had attempted to mislead the
panel in this regard. This conclusion was one that was reasonably open to the
IAD on the evidence before it.
Conclusion
[15]
The Court is thus
satisfied that the IAD’s finding that Ms. Buenavista and her husband had a
relationship with the children as a caring aunt and uncle, but did not have a
genuine parent/child relationship was one that clearly fell within the range of possible acceptable
outcomes, in light of the evidence before the panel.
[16]
Moreover, the
IAD provided clear and intelligible reasons for coming to the conclusion that
it did. As a consequence, there is no basis for the Court to intervene in this
matter. The application for judicial review is therefore dismissed.
Certification
[17]
Neither party has
suggested a question for certification, and none arises here.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2.
No serious question
of general importance is certified.
“Anne Mactavish”
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