Docket: T-1527-14
Citation:
2015 FC 316
Ottawa, Ontario, March 13, 2015
PRESENT: The
Honourable Mr. Justice Rennie
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BETWEEN:
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ABREYAH CALICIA YOUNG
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BY HER LITIGATION GUARDIAN PATRICE YOUNG
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the matter
[1]
The applicant seeks judicial review of a decision of
visa officer Davinder Manhas (the Officer) made at the Canadian High Commission
in Trinidad and Tobago rejecting the minor applicant’s application for Canadian
citizenship. For the reasons that follow the application is granted.
II.
Facts
[2]
The minor applicant is Abreyah Young, a five year old
citizen of St. Vincent. Ms. Lisa Pope is the applicant’s biological mother. Ms.
Patrice Young is the Litigation Guardian in this case, and is also the first
cousin of Ms. Pope, and therefore related to the applicant. Ms. Young is a
Canadian citizen.
[3]
In 2010, Ms. Young visited St. Vincent and met the
applicant, then a baby, for the first time. At that time Ms. Pope was raising
the applicant alone, having separated from Abreyah’s father. Ms. Young was
concerned as to the limited resources and living conditions of her cousin and
her young baby. She also was very fond of Abreyah. Upon her return to Calgary, Ms. Young began the process of adopting the applicant.
[4]
The adoption process included the submission of
character references, medical reports, and a detailed home study, which was
positive. The home study was then approved by the province of Alberta. The
home study was included as part of the applicant’s citizenship application.
[5]
On November 26, 2013, the High Court of Justice in St. Vincent granted the adoption of the applicant to Ms. Young. In order to obtain a court
order, Ms. Pope was required to swear an affidavit acknowledging her consent to
the adoption. The court order and the affidavit were also included in the
applicant’s citizenship application.
[6]
In December 2013, Ms. Young submitted an application
for Canadian citizenship for the applicant pursuant to section 5.1 of the Citizenship
Act, RSC 1985, c C-29 (Citizenship Act).
[7]
On June 2, 2014, Ms. Young traveled to the Canadian
High Commission in Trinidad and Tobago for an interview with Ms. Pope and the
Officer. Ms. Young and the Officer have sworn affidavits with conflicting
versions of what transpired during the meeting.
[8]
On June 3, 2014, the Officer rejected the application
under subsection 5.1(1) of the Citizenship Act.
III.
Decision
[9]
The Officer rejected the applicant’s application for
citizenship, as she found that the applicant had failed to meet the
requirements of subsection 5.1(1) of the Citizenship Act. Specifically,
the refusal letter stated that the applicant had failed to establish that the
adoption: was in the best interests of the child (subsection 5.1(1)(a)); and
had not created a genuine parent-child relationship as required by subsection
5.1(1)(b). The refusal letter further concluded that the adoption was entered
into primarily for the purpose of acquiring citizenship status for the child.
[10]
The Officer also stated that subsection 5.1(3)(c)(iii)
of the Citizenship Regulations, SOR/93-246, stipulates that the
pre-existing legal parent-child relationship must be permanently severed by the
adoption and based on the submissions and interviews, she was “not satisfied that the pre-existing parent child
relationship has been severed as the child continues to reside with her
biological mother in a parent-child relationship”.
IV.
Relevant Provisions
[11]
The right of a child adopted abroad by a Canadian
citizen to apply for Canadian citizenship was introduced in the Citizenship
Act in 2007. This privilege was first limited to adoptions made after
February 17, 1977; however, in April 2009, Parliament amended this requirement
to allow all such children adopted after 1947 the benefit of this privilege: Dufour
v Canada (Minister of Citizenship and Immigration), 2014 FCA 81 at para 20.
[12]
Subsection 5.1(1) of the Citizenship Act
provides:
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5.1(1) Subject to subsections (3) and (4), the Minister shall, on
application, grant citizen-ship to a person who was adopted by a citizen on
or after January 1, 1947 while the person was a minor child if the adoption
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5.1 (1) Sous réserve des paragraphes (3) et (4), le ministre
attribue, sur demande, la citoyenneté à la personne adoptée par un citoyen le
1er janvier 1947 ou subséquemment lors qu’elle était un enfant mineur.
L’adoption doit par ailleurs satisfaire aux conditions suivantes:
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(a) was in the best interests of the child;
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a) elle a été faite dans l’intérêt supérieur de l’enfant;
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(b) created a genuine relationship of parent and child;
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b) elle a créé un véritable lien affectif parent-enfant entre
l’adoptant et l’adopté;
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(c) was in accordance with the laws of the place where the
adoption took place and the laws of the country of residence of the adopting
citizen; and
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c) elle a été faite conformément au droit du lieu de l’adoption et
du pays de résidence de l’adoptant;
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(d) was not entered into primarily for the purpose of acquiring a
status or privilege in relation to immigration or citizenship.
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d) elle ne visait pas principalement l’acquisition d’un statut ou
d’un privilège relatifs à l’immigration ou à la citoyenneté.
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[13]
Subsection 5.1(3)(c)(iii) of the Citizenship
Regulations provides:
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5.1(3) The following factors are to be considered in determining
whether the requirements of subsection 5.1(1) of the Act have been met in
respect of the adoption of a person referred to in subsection (1):
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5.1(3) Les facteurs ci-après sont considérés pour établir si les
conditions prévues au paragraphe 5.1(1) de la Loi sont remplies à l’égard de
l’adoption de la personne visée au paragraphe (1):
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[…]
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[…]
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(c) whether, in all other cases,
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c) dans les autres cas:
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[…]
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[…]
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(iii) the pre-existing legal parent-child relationship was
permanently severed by the adoption
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(iii) le fait que l’adoption a définitivement rompu tout lien de
filiation préexistant
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V.
Issues
[14]
While the applicant submits there are five issues
before the Court, they distil to the central question whether the Officer erred
in finding the primary purpose of the adoption was to acquire a benefit of
immigration or citizenship. In this respect, the respondent contends that the
decision is eminently reasonable and was one which was within the range of
possible, acceptable outcomes that could be reached.
VI.
Analysis
A.
The standard of review
[15]
The reasonableness standard applies to questions of
fact and to questions of mixed fact and law such as whether an adoption was
entered into primarily for the purpose of acquiring a status or privilege in
relation to immigration or citizenship contrary to subsection 5.1(1)(d). As
such, the Officer’s decision under section 5.1 of the Citizenship Act
attracts the standard of review of reasonableness. When reviewing the
reasonableness of a decision the analysis is concerned with “the existence of justification, transparency and
intelligibility within the decision-making process”: Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47.
[16]
In the present case, the role of the Officer was to
interview Ms. Pope and Ms. Young, to make findings of fact based on those
interviews, and then to apply those facts to the applicable legislation: The
Minister of Citizenship and Immigration v Davis, 2015 FCA 41 at para 9. In
such a “factually laden context”, deference is
owed to “the expertise of the immigration officer both
in finding facts and in applying those facts to the relevant provisions of the
Citizenship Act”: Davis at para 9. This specific context “broadens the range of possible, acceptable and defensible
outcomes”: Davis at para 9.
[17]
It is not the role of the Court to re-weigh the
evidence; however, the Court does have jurisdiction to intervene if it is
determined that the Officer erred by ignoring evidence or by drawing
unreasonable inferences from the evidence: Smith v Canada (Minister of Citizenship and Immigration), 2014 FC 929; Jardine v Canada (Citizenship and Immigration), 2011 FC 565.
B.
The Officer erred in finding that the primary
purpose of the adoption was to acquire a benefit of immigration or citizenship
[18]
The bar for finding that an adoption was entered into
primarily for acquiring a benefit of immigration or citizenship is high. When
an adoption has been approved by a Canadian court, it must be established that
the court judgment was obtained by fraud against the legal system: Canada
(Citizenship and Immigration) v Dufour, 2014 FCA 81. This gives effect to
Parliament’s intention when enacting section 5.1; to facilitate the granting of
Canadian citizenship to children adopted abroad by Canadian citizens: Dufour
at para 53. In cases where there is no Canadian court judgment certifying the
lawfulness of the adoption, such as the present case, there “must be clear evidence that it is an adoption of
convenience”: Dufour at para 57.
[19]
Adoptions of convenience are “limited
to situations where the parties (the adoptee or the adopter) have no real
intention to create a parent-child relationship”: Dufour at para
55. Essentially, they are “schemes to circumvent the
requirements of the [Citizenship] Act or of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27”: Dufour at para 55. In Perera
v Canada (Minister of Citizenship and Immigration), [2001] FCJ No 1443 at
para 14, the Federal Court held that “[s]imilarly to a
so-called ‘marriage of convenience’ (where two total strangers fake an illusory
marital relationship so as to admit a temporary spouse to Canada) an ‘adoption
of convenience’ would be a situation where Canadian citizens pretend to adopt
an unknown child so as to bring him to Canada for a financial reward”.
[20]
The determinative issue in this case is whether the
Officer erred in her assessment of the evidence which allowed her to make a
finding that the adoption was entered into primarily for acquiring a benefit of
immigration or citizenship. Again, in order to make such a finding there must,
according to the jurisprudence, be “clear evidence” of an adoption of
convenience. The officer may, in the absence of evidence, infer intention, but
any inference must be based on “duly proven facts on
which to base his or her reasoning” and “[i]ntent
cannot be inferred from a fact that is nothing more than one among many
theories because such an approach amounts to pure speculation”: Dufour
at para 60.
[21]
In determining that the adoption was entered into for
the primary purpose of acquiring a benefit of immigration or citizenship, the
Officer relied on two findings. First, Ms. Young provided contradictory
statements on how the adoption first began, and it would be reasonable to
assume that a woman would remember a major life event such as being asked to
adopt a child versus falling in love with a child and asking to adopt the
child. Accordingly, the Officer found that this contradiction indicated that
this was not a decision about relationship and parenting but about benefits of
Canadian citizenship.
[22]
In this regard, the Officer made an inference from a
fact that amounts to speculation. The Officer’s theory is just one of other
available theories – another theory could be that the discrepancy arose due to
a simple error on Ms. Young’s part. Or that Ms. Young forgot how the
conversation developed. Or, more realistically, the decision to adopt was
complex and based on multiple conversations and evolved over time. In any
event, regardless of the precise chronology of the conversations and how they
were characterized, this discrepancy alone cannot, intelligibly, lead to the
conclusion that the decision to adopt was primarily for the purpose of
acquiring a benefit of immigration or citizenship.
[23]
The second finding relied upon by the Officer was that
throughout the interview both Ms. Young and Ms. Pope gave the same
motivation/reasons for adoption – the comparatively superior medical care and
schooling in Canada as opposed to St. Vincent. The decision to undertake the
adoption was for Ms. Young to “help out her less
fortunate cousin and offer the benefits of Canadian citizenship to the child”
and there was “little mention of having a relationship,
raising this child, wanting a child, connection to the child, etc.”
[24]
The fact that the adoptive and biological parent(s)
wish to give a child a better life in terms of access to medical care and
schooling cannot support a finding that the primary intention of adoption was
to evade immigration laws. The fallacy of the reasoning employed is best
revealed if the proposition is inverted; what parent would give up a child if
they knew it faced a more difficult life with fewer opportunities?
[25]
In Smith, my colleague Justice Kane set aside
the decision of an officer who held that the reasons provided by the adoptive
and biological parent for adoption were for the purpose of providing the child
with a better quality of life in Canada, and therefore the application did not
meet the requirements of subsection 5.1(1)(d) of the Citizenship Act. Justice
Kane did not “share the officer’s view that the
intention to provide a better quality of life can only mean one thing – that
the adoption is to acquire a status or privilege in Canada, meaning that it is
intended to circumvent the statutory requirements”: Smith at para
56. Further, the Court held that the adoptive mother’s goal of providing a
better quality of life for the child in Canada is a “legitimate
goal”: Smith at para 65.
[26]
The evidence before the Officer regarding the reasons for
adoption included a home study report conducted by a licensed, independent,
third party adoption agency. The report received provincial approval from a
Senior Manager of Adoption Services, Human Services in Alberta. The report
found that Ms. Young “would love the opportunity to
nurture and guide a child into adulthood”; that she is “very attached to this little girl…Patrice loves this little
girl and looks forward to being her parent”; and “is eager to parent this child, to whom she’s already
developed a bond”. When asked by the Officer in the interview why she
decided to adopt, Ms. Young explained that “I have a
job which allows me enough income to help others. I am also married and my
husband will help us out. I am in a good situation. I don’t have any children…I
want to give back”. The Officer did not consider this important piece
of evidence in her assessment; rather she relied exclusively on her interview
with Mr. Young and the child and thus erred in making a finding that the
adoption was entered into primarily for acquiring a benefit of immigration or
citizenship.
C.
The Officer erred in finding that the adoption
was not in the best interests of the child
[27]
The Officer found that the adoption was not in the best
interests of the child as there was “no or very limited
evidence to suggest that the adults in this situation thought about the effects
of uprooting a child, establishing new parental relationships, losing a close
parent, etc.” However, the Officer again failed to consider evidence to
the contrary, including the home study report which concluded that “Patrice understands what it is like to be separated from a
parent. She herself was raised by extended family members. She is willing and
able to discuss the child’s feelings of grief over the separation from her
biological parents”; and that “Patrice will
ensure that the child knows that her biological mother loves her”; and “Patrice understands that it will be important for her
adopted child to understand her history”.
D.
The Officer erred in finding that there was no
genuine parent-child relationship
[28]
In finding that the adoption did not create a genuine
parent-child relationship, the Officer relied heavily on the fact that Ms.
Young had limited contact with the applicant. Specifically, as Ms. Young had
only visited the applicant once, this amounted to a “lack
of effort” on the part of Ms. Young.
[29]
Again, this finding does not take into account the
evidence before the Officer. Ms. Young indicated throughout the interview that
she could not take leave from work to visit the applicant, and that the cost of
flying to St. Vincent was more than what Ms. Young could afford. Instead, Ms.
Young would send money to the applicant for her care. Ms. Young also indicated
during the interview that she maintained a relationship with the applicant
through talking to her on a regular basis.
[30]
The Officer did not assess this explanation in light of
Ms. Young’s financial circumstances. As the manager of a store in the fast
food industry, the explanation provided was, on its face, reasonable and
deserved to be considered by the Officer and not summarily dismissed. Further
the Officer did not express a frame of reference as to how many visits would be
sufficient to establish a genuine parent-child relationship. Not all Canadians
have the financial means or personal flexibility to make multiple trips out of
Canada to visit the child to be adopted. Unless a contextual approach is taken
to the means and abilities of the prospective parents to establish a genuine
parent child relationship, adoptions will become the purview of Canadians of means,
if they are not already.
[31]
Although decided some 15 years ago, the Federal Court
arrived at the same conclusion, although through different reasoning. In Perera
Justice Dubé held, at paragraph 15, that “if an
adoption is to create a genuine relationship between new parents and adopted
children, such a creation is not defined by the past but by the future about to
happen as a result of the adoption.” The Court expanded by noting:
The words “a genuine parent and child
relationship being created as a result of the adoption” are pregnant with
significance. They point to a future relationship to be created, not to the
confirmation of a present situation. An adoption is a forward looking relationship.
[32]
While the events prior to the adoption are relevant and
it would be unreasonable to discount them, the Officer in this case failed to
consider the steps Ms. Young would take, going forward, in the future, in order
to establish a genuine relationship with the applicant. I note that the Officer
gave no weight to Ms. Young’s intention to take nine months maternity leave
when Abreyah arrived in Canada.
E.
The Officer erred in finding that the
relationship between the biological mother and child was not severed
[33]
Subsection 5.1(3)(iii) requires that the pre-existing legal
parent-child relationship be permanently severed. The legal
relationship between Ms. Pope and the applicant was severed by St. Vincent’s
High Court of Justice via a grant of adoption by way of court order dated
November 26, 2014.
[34]
I note that the present case is markedly different from
the facts before the court in The Minister of Citizenship and Immigration v
Davis, 2015 FCA 41. In Davis, the respondents were sisters and
citizens of Jamaica who arrived in Canada in July 2008 as visitors for a
six-week stay with their grandmother. Wanting to remain in Canada permanently,
the grandmother adopted both sisters in April of 2009. At the time of the
adoptions the sisters were 19.5 years of age and 17.5 years of age.
[35]
The Court of Appeal in Davis held that the
Federal Court Judge did not properly apply the reasonableness standard. Specifically,
the Court of Appeal held that, on the record before her, the officer could
reasonably conclude that no genuine parent-child relationship existed between
the respondents and their grandmother, in part because the respondents
maintained regular contact with their birth parents.
[36]
In the present case, Ms. Young initiated the adoption
process when the applicant was a young child. Because of her concern regarding
the limited resources and poor living conditions faced by the applicant, Ms.
Young acted as quickly as possible to ensure all legal requirements were met to
properly adopt the applicant. Ms. Young submitted to a detailed home study,
which was given provincial approval in March 2013. Ms. Young then legally
finalized the adoption with a grant from the High Court of Justice in St.
Vincent in November 2014.
[37]
Therefore, in my view it was unreasonable for the Officer
to conclude the legal parent-child relationship had not been severed.
F.
Not necessary to consider the reasonable
apprehension of bias
[38]
Although the applicant advances the argument that the
conduct of the Officer at the interview suggests a reasonable apprehension of
bias, in my view it is not necessary to consider this argument in light of the
above considerations.
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