Date: 20080227
Docket: IMM-3068-07
Citation: 2008 FC 252
Ottawa, Ontario, the 27th day of February 2008
Present:
the Honourable Mr. Justice Beaudry
BETWEEN:
BINWA
KISIMBA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] This is an application for
judicial review made pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), following a decision of
the Immigration Appeal Division (Appeal Division) of the Immigration and
Refugee Board on July 10, 2007 rejecting the application for
permanent residence by the adoptive children of Binwa Kisimba (the applicant).
ISSUES
[2] The case at bar raises two issues:
(a) Did the
Appeal Division err in refusing to consider documentary evidence dealing with
the interpretation of Congolese law and in determining that the adoption had no
legal validity?
(b) Did the Appeal
Division err in considering that there was no real parent-child emotional bond
between the adoptee and the adopter?
[3] For the reasons that follow, the application for
judicial review will be dismissed.
FACTUAL BACKGROUND
[4] The applicant is a Canadian citizen originally
from the Democratic Republic of the Congo (the Congo). She is 55 years old and
works for Hydro-Québec. She lives with her
husband, who is 60 years old and an education consultant. They are the parents
of three children of full age, a boy and two girls.
[5] Their elder son works as a data processing
consultant in Montréal and their daughters are engineers in North Carolina in
the U.S.
[6] Following the death of her young brother on
February 21, 2003, the applicant decided to adopt two of his four children:
Kipimo Kisimba, born on April 16, 1990, and Kamona Kisimba, [born] on April 2,
1996. They live in Kinshasa in the Congo with their biological mother.
[7] The adoption was obtained through a Congolese
lawyer on January 6, 2004. The
adoption was
subject to [TRANSLATION] Law No. 87-010 of August 1, 1987, titled the
[TRANSLATION] “Republic of Zaire Family Code” (the Code – the
last document in tab 5 of the applicant’s record). Articles 653 and 656 of that
Code provide the following:
[TRANSLATION]
Article 653: Only competent persons
having reached the age of majority may adopt, with the exception of those
persons from whom parental authority has been withdrawn.
Article 656: The fact that the potential
adoptive parent has children does not preclude adoption. However, only those
individuals who, on the day of the adoption, have fewer than three living
children are permitted to adopt, unless special dispensation is granted by the
President of the Mouvement populaire de la révolution, President of the Republic. No
one may adopt more than three children, unless they are the children of his or
her spouse.
[8] Since the judgment confirming the adoption in the
Congo, the applicant and her husband have sent money for the support and
education of the two children. They have also sent them presents and are in
regular contact with them by telephone.
[9] In June 2006 the applicant and her biological
daughter went to visit the adoptive children in Kinshasa.
[10] The application to sponsor the two adopted
children was rejected by a visa officer at the Canadian Embassy in Kinshasa on
August 30, 2005. The Appeal Division dismissed the applicant’s appeal on April
27, 2007: hence the application for judicial review at bar.
IMPUGNED DECISION
[11] Two reasons were given by the Appeal Division for
dismissing the application. First, it concluded that the adoption was not
legally valid under Congolese law.
(a) It
interpreted article 656 of the Code and concluded that a person who had three
children still living could not adopt without a dispensation from the President
of the Republic. As the applicant has three biological children and there is no
evidence of a dispensation, the applicant could not adopt under Congolese law.
The Appeal Division mentioned that [TRANSLATION] “living children” made no
distinction between a dependent child and a child of full age who is
independent.
(b) It attached
no evidentiary value to a letter signed by the President emeritus (retired) of
the Congolese Court of Appeal. This letter, dated December 28, 2006, mentioned
that the phrase [TRANSLATION] “living children” implied minor dependent
children. The Appeal Division disregarded this document since it was
handwritten on lined paper, with no heading or official seal, and did not
originate with an expert witness.
(c) The same
fate was reserved for a letter of opinion from a Kinshasa lawyer as to the
interpretation of article 656. Relying on a definition contained in the Petit
Robert dictionary, the lawyer in question stated that in his view the word
[TRANSLATION] “child” meant a human being within the age of minority.
(d) The Appeal
Division pointed out that the applicant’s testimony raised doubts as to the
legality of the adoption. She had signed no form or document for the adoption
proceedings to be initiated. She was not questioned by her counsel as to
whether she had three living children. As the applicant and her husband are
educated people, the Appeal Division did not find it either credible or
plausible that the couple did not try to obtain information about the
conditions for adoption in the Congo.
[12] Secondly, the Appeal Division concluded that the
applicant had not established that the relationship between the adopting parent
and the adopted children was genuine or that it was not primarily for the
acquisition of a status or privilege within the meaning of the Act.
(a) It
indicated that the replies given by the adopted children, Kipimo and Kamona, at
their interviews in June 2005 at the Canadian Embassy left no doubt as to the
person they regarded as their mother. The bond between them and their
biological mother has never been severed and it is she who continues to assume
the parental, emotional and physical responsibilities. She did not object to
the adoption because she wished her children to have a better education.
(b) The Appeal
Division did not accept the applicant’s argument that she did not visit the
adopted children from 2004 to 2006 because the air ticket was too expensive. It
mentioned that the couple had an annual income of $120,000. The applicant’s
only visit to the children in question was in 2006, ten months after the
refusal by the visa officer. The Appeal Division noted that the applicant took
ten weeks’ vacation in June and July 2005 without going to see the children.
(c) The
children indicated at the interview that they did not know much about their adoptive
mother and did not know the name of their adoptive father. However, the Appeal
Division commented favourably on the applicant’s generosity to these children
in helping them financially, but this did not amount to a bond of filiation or
a parent-child relationship.
ANALYSIS
Standard of review
[13] The standard of review applicable when a visa
officer is considering questions of fact is that of patent unreasonableness (Annor
v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 190,
2007 FC 140). This standard is applicable to the second question before this
Court.
[14] To what standard should the first point at issue
be subject?
[15] In Canada (Minister of Citizenship and
Immigration) v. Choubak, [2006] F.C.J. No. 661, 2006 FC 521, Blanchard J.
undertook a pragmatic and functional analysis and concluded that the standard
applicable to a question involving the interpretation of foreign law by an
administrative tribunal should be that of reasonableness simpliciter.
This is what he wrote at paragraphs 37 and 40:
[37] The Board’s decision in
this case, however, does not concern the evidentiary basis for the Respondent’s
claim for refugee protection or a finding in respect of the credibility of the
Respondent. It is recognized that such factual determinations are within the
purview of the Board’s expertise. In this case, the Board’s factual finding is
not related to the core of its expertise. Rather, the decision at issue
revolves around whether by operation of section 44(1)(2) of the Aliens Act
the Respondent lost her residency status in Germany, including her right to
return to Germany, from the moment she decided that she wanted to stay in
Canada permanently. Ultimately, the Board’s decision concerns an interpretation
of German law and its effect on the Respondent’s situation. In my view, such a
finding is not within the expertise of the Board. I find that the Court is in a
better position to determine whether the evidence sufficiently establishes the
content of section 44(1)(2) of the Aliens Act. As a result, with regards
to this second factor, I would extend less curial deference to the Board.
. . . .
[40] In the present case, the
question before the Board concerns the Applicant’s residency status in Germany
as of September 15, 1999 – the date of her admission into Canada. The Board
must first determine the meaning of section 44(1) of the Aliens Act, and
then it must apply the law as determined to the circumstances of the
Respondent’s case. The jurisprudence establishes that determining the content
of foreign law is a finding of fact, while determining how the foreign law is
applied is a question of law: see Sharma, above, at paragraph 10. In my
opinion, the nature of the question militates towards affording less deference
to the Board.
[16] I concur in the reasons of Blanchard J. and adopt
this standard in answering the first question.
Did
the Appeal Division err in refusing to consider documentary evidence dealing
with the interpretation of Congolese law and in determining that the adoption
had no legal validity?
[17] The Appeal Division did not attach any evidentiary
value to the two letters of opinion filed by a Kinshasa lawyer and by the
President emeritus (retired) of the Congolese Court of Appeal. The applicant
alleged that the content of the letters should have been considered in
determining the legal validity of the adoption. I feel that the Appeal Division
made no error when it found that the letters were not evidentiary. There is no
evidence in the record that these two individuals could be described as
experts. This conclusion by the Appeal Division is not unreasonable.
[18] What should be said about the interpretation of
Congolese law by the Appeal Division?
[19] The Citizenship and Immigration Canada Overseas
Processing manual (OP), chapter 3, titled “Adoptions”, deals with the
question of foreign law in paragraph 5.7:
The onus is on the adopting
parent to provide evidence in respect of the minor’s adoption that establishes
that the adoption was in accordance with the laws of the place where it took
place as required by R117(3)(d). In most cases, this evidence will be in
the form of an adoption order issued by the competent authority. In general,
the submission of a valid adoption order issued by the competent authority would,
unless there is some information to the contrary, be satisfactory evidence that
the applicable foreign adoption-law requirements have been met.
Officers should be particularly vigilant
in assessing adoptions where:
·
registration
of the adoption order is not a legal requirement;
·
the
requirements of adoption laws are not strictly followed;
·
the
country does not authorize international adoptions.
[20] In the case at bar, the panel’s file contains the
deed of adoption. There is no allegation that the Kinshasa Court of the Peace,
which made the order, was not the competent authority. The respondent alleged
that the adoption was not in accordance with Congolese law, based on his own
interpretation of the Code. However, the Court considers that the interpretation
put forward by the applicant may be as valid as the respondent’s. As this
question is not crucial to the outcome of the case at bar, the Court does not
rule in favour of either interpretation to be given to the Code.
Did
the Appeal Division err in considering that there was no real parent-child
emotional bond between the adoptee and the adopter?
[21] The applicant maintained that the Appeal Division
made a reviewable error when it concluded that the parent-child relationship
was not genuine. Both parties agreed that there are several factors to be
considered in assessing the genuineness of the parental relationship. These
factors are set out in De Guzman v. Canada (Minister of Citizenship and
Immigration), 33 Imm. L.R. (2d) 28. This decision was recently followed in Annor,
supra, at paragraph 17:
(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,
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.
[22] Following an exhaustive analysis of the transcript
contained in the panel’s record, the Court does not intend to intervene in the
factual interpretation given by the Appeal Division to the testimony regarding
the adoptee-adopter relationship in this case.
[23] The Court considers that the conclusions of the
Appeal Division are supported by the evidence. In particular, the Appeal
Division found that the children regarded the applicant as their aunt, the
biological mother performed the emotional and physical responsibilities of a
parent with the applicant’s financial assistance and contact was minimal
between the applicant and the adopted children.
[24] In concluding, the Court can only congratulate the
applicant for her continuing financial effort in support of these two young
people.
[25] The
parties suggested no serious question of general importance. The case does not
contain any.
JUDGMENT
THE COURT ORDERS AND DIRECTS
that the application for judicial review be dismissed. No
question is certified.
“Michel
Beaudry”
Certified
true translation
Brian
McCordick, Translator
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