Date: 20140714
Docket: IMM-4026-13
Citation: 2014 FC 679
Ottawa, Ontario, July 14, 2014
PRESENT: The
Honourable Madam Justice St-Louis
|
BETWEEN:
|
|
LUIS ANTONIO ALVARADO DUBKOV
|
|
Applicant
|
|
and
|
|
MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
Mr. Luis Antonio Alvarado Dubkov is a citizen of
Guatemala. In June 2009, he arrived in Canada as a temporary resident to live
with his maternal uncle, Mr. Chavez, and his family, all Canadian citizens. In Guatemala, Mr. Dubkov had lived with his mother and relatives until she passed away in
January 2009. He had never lived with his father, and remained in the care of maternal
relatives while in Guatemala after his mother passed away.
[2]
In August 2011, having just reached adulthood, Mr.
Dubkov was adopted by the Chavezes who then became his adoptive parents.
[3]
In September 2011, Mr. Dubkov applied for
Canadian citizenship as the adult adoptee of Canadian citizens. For his
application to succeed, he had to establish both that there existed a genuine parent
child relationship between him and the Chavezes before he reached the age of eighteen
and at the time of the adoption, and that the adoption was not entered into
primarily to gain a citizenship status or privilege.
[4]
The Citizenship Officer refused the application,
unsatisfied that the evidence provided by Mr. Dubkov and his adoptive parents established
the existence of a genuine parent-child relationship at the appropriate time,
and unsatisfied that the adoption was primarily entered into for reasons other than
gaining a citizenship status or privilege.
[5]
Mr. Dubkov filed for judicial review asking this
Court to set aside the Officer’s decision. He argues that the relationship between
him and the Chavezes met the requirements and that the Officer did not consider
the facts and the evidence and thus reached unreasonable conclusions. The respondent
argues that the decision is reasonable, that the Officer found the evidence
insufficient, and points out that the Chavezes provided no affidavit to support
Mr. Dubkov’s position before this Court.
[6]
The questions raised in this case pertain to the
evaluation of the facts and evidence by the Officer and I concur with the
parties that the applicable standard of review is that of reasonableness. In
that context, considerable deference must be accorded to the Officer’s decision
and the Court will grant relief if it finds the decision was made in a perverse
or capricious manner or without regard to the material before her. The decision
will be reasonable if it falls within the possible outcomes given the facts and
the law and provides sufficient transparency, intelligibility and justification
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[7]
The Court finds that the Officer’s decision is
reasonable for the reasons set out below.
II.
CONTEXT: CANADIAN CITIZENSHIP AS AN ADULT
ADOPTEE
[8]
At the heart of Mr. Dubkov’s case is the possibility
for the adult adoptee of Canadian citizens to apply for Canadian citizenship. Section
5.1(2) of the Citizenship Act, RSC 1985, c C-29 outlines the
requirements an applicant must meet in order to succeed, two of which are
relevant in this case, namely:
1.
There must be a
genuine relationship of parent and child between the person and the adoptive
parent before the person attained the age of eighteen years and at the time of
the adoption; and
2.
The adoption must
not have been entered into primarily for the purpose of acquiring a status or
privilege in relation to immigration or citizenship.
[9]
In turn, the Citizenship Regulations,
SOR/93-246 outline the factors to consider in determining if these requirements
have been met. They include the examination of whether or not the pre-existing legal parent-child relationship
was permanently severed by the adoption.
[10]
These provisions are reproduced in the Annex to
these Reasons.
III. QUESTIONS
[11]
This judicial review raises the three following
questions:
(1)
Did the Officer err in finding that Mr. Dubkov
failed to establish the existence of a genuine parent-child relationship with
the Chavezes before the age of eighteen and at the time of adoption?
(2)
Did the Officer err in finding that Mr. Dubkov failed
to satisfy her that the applicant’s adoption was not entered into primarily for
a citizenship or immigration status or privilege?
(3)
Did the Officer fail to consider evidence
presented by the Chavezes or provide adequate reasons?
III.
POSITION OF THE PARTIES AND ANALYSIS
Question 1: Did the Officer err in finding that Mr.
Dubkov failed to establish the existence of a genuine parent-child relationship
with the Chavezes before the age of eighteen and at the time of adoption?
(a) Mr.
Dubkov’s submissions
[12]
Mr. Dubkov argues that the Officer’s finding
that he had a parent-child relationship with his birth father is unreasonable. He
rather submits that his relationship with his birth father was not “typical” as the Officer characterized it, but on the
contrary, that his birth father was largely absent and contented to play merely
a peripheral role in his life, even after the death of his mother. Further, the
fact that Mr. Dubkov‘s birth father had a minor ongoing relationship with him
does not mean that the pre-existing legal parent-child relationship was not
permanently severed by the adoption (Adejumo v Canada (Minister of
Citizenship and Immigration), 2011 FC 1485 at paras 12-14, citing the
Citizenship and Immigration Canada [CIC] Operation Bulletin 183).
[13]
Mr. Dubkov argues that the Officer’s reliance on
the fact that he did not call the Chavezes “mom” and “dad” was unreasonable. He
submits that the evidence had been that he did not feel comfortable calling
them “mom” and “dad” in Spanish, as he had grown up referring to them as “aunt”
and “uncle”, but he did call them “mom” and “dad” when speaking in English.
[14]
Mr. Dubkov submits that the Court has laid out
non-exhaustive factors to be considered in assessing the genuineness of a
parent-child relationship in Buenavista v Canada (Minister of Citizenship and
Immigration), 2008 FC 609 at para 8 [Buenavista] and that the Officer
failed to consider these factors. He argues that an analysis of these factors
point toward a genuine parent-child relationship between himself and the
Chavezes, and that without considering these factors, the Officer’s decision
lacked transparency, intelligibility and justification (citing Davis v
Canada (Minister of Citizenship and Immigration), 2013 FC 1243 at paras
9-11 [Davis]).
(b) Respondent’s
submissions
[15]
The respondent argues that the Officer’s
findings are reasonable. Mr. Dubkov’s birth father did have an ongoing
relationship with him, and it was open to the Officer to conclude that it was a
parent-child relationship. Even non-custodial parents can have parent-child
relationships with their children, and there is no one “typical” parent-child
relationship.
[16]
Mr. Dubkov’s contention that the Officer
misunderstood his evidence regarding his being uncomfortable calling the
Chavezes “mom” and “dad” only in Spanish is just that – a contention, without
support in the evidence.
[17]
Further, the Buenavista factors are
merely non-exhaustive factors. The key question is whether the decision is
reasonable, not whether the Officer went through a list of factors. The Court
should not rely on Davis because it is currently before the Federal
Court of Appeal.
(c)
Analysis
[18]
The Officer’s determination that the Chavezes
did not have a genuine parent-child relationship with the applicant before age
eighteen and at the time of the adoption is a finding of fact. The Court must
afford significant defence to the Officer’s factual findings, particularly
where, as here, the determination falls within the core of the decision-maker’s
expertise. As such, Mr. Dubkov must show that the Officer’s determination was
made “in a perverse or capricious manner or without
regard to the material before it” (Federal Courts Act, RSC 1985,
c F-7, s 18.1(4)(d)).
[19]
The onus is on Mr. Dubkov to provide evidence
that a genuine parent-child relationship existed at the relevant time, that is,
to show that the Chavezes had, not only legally, but practically, taken on the
role of parents in the applicant’s life (Rai v Canada (Minister
of Citizenship and Immigration), 2014 FC 77 at para 21).
[20]
The Officer’s reasons for finding that there was
no such relationship are far from perfect. Her first reason is that she found
that Mr. Dubkov had a typical parent-child relationship with his birth father.
While I would not necessarily characterize the relationship between Mr. Dubkov and
his birth father as a “typical” parent-child relationship, or at least not as
an ideal one, the relevant question is not whether the reviewing court would
have come to a different conclusion, but rather whether, in light of the
record, the finding was unreasonable.
[21]
However, I need not address the reasonableness
of this first finding because the Officer provides a second reason for finding
there was no such genuine parent-child relationship: she found that Mr.
Dubkov’s relationship with the Chavezes was akin to a typical uncle/aunt-nephew
relationship. While she does not provide a fulsome analysis to support this
finding, the record reveals that the Officer’s determination on this point was
reasonable.
[22]
First, there is some inconsistency in the
applicant’s evidence with respect to the nature of the relationship between the
Chavezes and Mr. Dubkov before he moved to Canada. He testified that after the
death of his mother, the Chavezes kept in touch with him through phone and
email, but it was infrequent, irregular contact. In contrast, the Chavezes
testified that there was constant, regular contact. Mr. Dubkov and the Chavezes
have provided minimal evidence substantiating their pre-Canada relationship.
The Chavezes testified that they saw Mr. Dubkov three to four times during
various visits to Guatemala, but it appears that only one of these visits took
place after the death of his birth mother. The Chavezes also testified that
they provided financial assistance to Mr. Dubkov after the death of his birth
mother, but there is no documentary evidence to support this. In other words,
the record does not clearly support the conclusion that prior his move to Canada; the Chavezes played a parental role in Mr. Dubkov’s life.
[23]
Second, even for the period after he moved to Canada in 2009, Mr. Dubkov has not provided significant documentary evidence to
substantiate that the Chavezes’ care for him rose to the level of a genuine parent-child
relationship. While it is evident from the interview notes that the Chavezes
care for Mr. Dubkov very much and have apparently provided for and supported
him throughout his time in Canada (and the Officer acknowledges as much in her decision),
the applicant’s burden is to demonstrate not merely that his adoptive parents
cared for and supported him, but rather that there was a genuine parent-child
relationship. Given the dearth of documentary evidence to that effect, the
Officer’s conclusion that the Chavezes’ relationship with Mr. Dubkov was akin
to that of an uncle and aunt rather than parents is not perverse or capricious
or unfounded on the basis of the record.
[24]
The fact that the Officer did not engage in a thorough
analysis of the record or meticulously break down her reasoning does not render
her decision unreasonable. The Supreme Court has held that in assessing the
reasonableness of a decision, “the reasons must be read
together with the outcome and serve the purpose of showing whether the result
falls within a range of possible outcomes” (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 14 [Newfoundland Nurses]). While the Court “should not substitute [its] own reasons”, it may, if
necessary, “look to the record for the purpose of
assessing the reasonableness of the outcome” (Newfoundland Nurses
at para 15). Indeed, even where the decision-maker’s reasons “do not seem wholly adequate to support the decision, the court
must first seek to supplement them before it seeks to subvert them” (Newfoundland
Nurses at para 12). These principles have been followed and applied in a
number of cases (see e.g. Andrade v Canada (Minister of
Citizenship and Immigration), 2012 FC 1490 at paras 7-13 [Andrade]; Persaud
v Canada (Minister of Citizenship and Immigration), 2012 FC 274
at para 15; Rahal v Canada (Minister of Citizenship and
Immigration), 2012 FC 319 at paras 30-31).
[25]
Therefore, the Officer was not required to provide
a detailed account of the evidence or explain her entire thought process in her
reasons.
[26]
Mr. Dubkov argues that the Officer should have
gone through the factors articulated in Buenavista and that her failure
to do so was unreasonable. I disagree. Just because the Officer did not
expressly work through that list does not mean she failed to consider the
substance of the relevant factors listed therein.
[27]
Since the record supports the Officer’s
determination, it was not made in a perverse or capricious manner or without
regard to the material before her. The Officer’s finding that there was not a
genuine parent-child relationship is therefore reasonable and should not be
disturbed.
Question 2: Did the Officer err in finding that Mr.
Dubkov failed to satisfy her that his adoption was not entered into primarily
for a citizenship or immigration status or privilege?
(a) Mr.
Dubkov’s submissions
[28]
The Officer found that the reasons Mr. Dubkov and
the Chavezes entered into the adoption were, “besides for
the purpose of belonging to a family, a better education, economic gains and a
better quality of life in Canada”. Mr. Dubkov argues that it was
unreasonable for the Officer to find that these ancillary benefits overrode the
situation surrounding his adoption, which point to a genuine parent-child
relationship. He submits that nothing about the adoption suggests it was a sham
or done in bad faith.
[29]
The Officer also failed to consider CIC’s
operational manual Citizenship Policy 14 – Adoptions [the CP14 Guidance Document],
which provides guidance on assessing whether adoptions are genuine. Mr. Dubkov submits
that the majority of the factors listed therein indicate that his adoption was
not entered into primarily for a citizenship benefit purpose. This Court has
previously set aside a decision for failing to take into account the CP14
Guidance Document (Tran v Canada (Minister of Citizenship and
Immigration), 2012 FC 201).
(b)
Respondent’s submissions
[30]
The respondent submits that the Officer’s
finding was reasonable because, although the Officer recognized that part of
the reason for adoption was to provide Mr. Dubkov with a sense of belonging, Mr.
Dubkov and the Chavezes also stated it was to obtain the benefits of
citizenship, such as a better education, economic gains, and a better quality
of life.
[31]
The respondent also notes that when the adoption
occurred, Mr. Dubkov was already an adult, and so the adoption had very limited
legal significance, and also had no effect on the personal relationship between
the applicant and the Chavezes.
[32]
The respondent further submits that Mr. Dubkov,
who bears the burden of proof, needed to show that he would have proceeded with
the adoption even if there was no chance of obtaining a citizenship benefit. He
has not done so.
(c)
Analysis
[33]
The Officer’s determination that the adoption
was entered into primarily for the purpose of acquiring a citizenship privilege
is also a factual finding to be afforded significant deference. Her reasoning
in support of this finding was that, in addition to the purpose of belonging to
a family, Mr. Dubkov and the Chavezes indicated that the adoption took place so
that Mr. Dubkov could have “a better education, economic
gains and a better quality of life in Canada”.
[34]
This sparse reasoning leaves much to be desired.
However, a review of the record supports the reasonableness of the Officer’s
finding, for at least two reasons.
[35]
First, Mr. Dubkov has provided no documentary
evidence showing any urgency or motivation to complete the adoption process
before Mr. Dubkov turned eighteen, even though it appears he had no status in Canada for some time. While Mr. Dubkov attached a copy of an “Affidavit of Adoption
Applicants” form, sworn by the Chavezes on August 5, 2009, there is no
indication that this is the form which initiated the adoption that was
ultimately granted after the applicant turned eighteen. There is also no
evidence that the Chavezes or Mr. Dubkov were pressuring or urging his birth
father to sign the consent form, which he ultimately did on June 12, 2011.
During the interview, the Chavezes testified that they did not adopt Mr. Dubkov
right away because they wanted to give him the chance to see if he liked living
with their family in Canada. The record therefore does not show that Mr. Dubkov
and the Chavezes were particularly eager to complete the adoption before he
turned eighteen, after which adoption becomes a much simpler matter.
[36]
Second, the record suggests that the costs of
Mr. Dubkov’s post-secondary education may have been a strong motivating factor
for obtaining citizenship. Mr. Dubkov graduated high school in 2012 with good
marks, but was accepted to university for the 2013-14 academic year, rather
than the 2012-13 year. There is no indication as to why the applicant did not
proceed to university in the year that he graduated. The Court asked the
applicant’s counsel at the hearing whether Mr. Dubkov was currently attending
university, counsel was unable to provide an answer. Further, at the interview,
the Chavezes stated that they were not prepared to pay for Mr. Dubkov to go to
university as a foreign student because foreign student fees are much higher as
compared to those for permanent residents or citizens.
[37]
As discussed above, the Officer was not required
to address every point in the evidence in her reasons. As her determination
finds support in the record, it cannot be said to have been made in a perverse
or capricious manner, or without regard to the record. It is therefore
reasonable.
[38]
I wish to briefly address Mr. Dubkov’s argument
that the decision was unreasonable because the Officer failed to follow the
CP14 Guidance Document. A similar argument was made before my colleague,
Justice Phelan, in Kaur v Canada (Minister of Citizenship and
Immigration), 2013 FC 1177. I find his holding at para 16 of that decision
to be apposite in this case as well:
I see no legal infirmity in the decision nor do
I accept that the Officer ignored the departmental Guidelines. Not only are
these Guidelines simply that, guidelines where not every factor must be
addressed, but the Officer fully addressed all the relevant points in those
Guidelines.
[39]
For these reasons, the Officer’s determination
that Mr. Dubkov had failed to show that his adoption did not take place
primarily for the purpose of obtaining a status or privilege relating to
immigration or citizenship was reasonable, and should not be disturbed.
Question 3: Did the Officer fail to consider
evidence presented by the Chavezes or provide adequate reasons?
(a) Mr.
Dubkov’s submissions
[40]
Mr. Dubkov submits that the Officer failed to
consider the evidence of the Chavezes in determining the genuineness of the
parent-child relationship. Further, the Officer repeatedly refers to the
Chavezes as his aunt and uncle, when they are in fact his adoptive parents,
suggesting that the Officer was set on regarding them as aunt and uncle, not as
his parents.
[41]
Mr. Dubkov argues that the lack of reasons for
the Officer’s apparent rejection of the Chavezes evidence amounts to a
reviewable error.
(b)
Respondent’s submissions
[42]
The respondent notes that the Chavezes have not
submitted any affidavit evidence on this application. It is therefore
disingenuous for Mr. Dubkov to contest the Officer’s factual findings or her
assessment of the evidence.
[43]
Further, the Supreme Court has clarified that
adequacy of reasons is not a stand-alone procedural ground for quashing a
decision. Rather, the adequacy of the reasons must be analyzed in conjunction
with the reasonableness of the outcome (Newfoundland Nurses at paras
20-22). As the decision as a whole is reasonable, the attack the adequacy of
the reasons cannot succeed.
(c)
Analysis
[44]
As discussed above, the adequacy of reasons is
not a stand-alone ground for overturning a decision, and the Officer was not
required to expressly address every piece of evidence before her. The
decision-maker is presumed to have read all the evidence before her (Andrade
at para 11; Guevara v Canada (Minister of Citizenship
and Immigration), 2011 FC 242 at para 41; Ayala v Canada (Minister of Citizenship and Immigration), 2007 FC 690 at para 23). Just
because the Officer did not specifically mention the Chavezes’ testimony does
not mean she did not consider it and weigh it appropriately. Mr. Dubkov provided
minimal documentary evidence to corroborate the statements of the Chavezes,
and, as the respondent notes, the Chavezes themselves have not filed an
affidavit in this application. There is therefore no indication that the
Officer missed a crucial piece of documentation that ran contrary to her
conclusions. I therefore reject the applicant’s arguments on this point.
[45]
Mr. Dubkov’s complaint about the Officer’s use
of “aunt and uncle” when referring to the Chavezes appears to be a thinly
veiled allegation of bias. There is no merit to this allegation.
V. CONCLUSION
[46]
For the above reasons, Mr. Dubkov’s application
for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
This application for judicial review is
dismissed.
"Martine St-Louis"
Email this Content