Docket: T-63-15
Citation:
2015 FC 867
Montréal, Quebec, July 15, 2015
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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RICKTA MATHILDA
MCLAWRENCE
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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.
Overview
[1]
According to the jurisprudence of this Court, a
child adoption is a forward looking relationship. The assessment of the
genuineness of a parent-child relationship “is not
defined by the past but by the future about to happen as a result of the
adoption” (Perera v Canada (Minister of Citizenship and Immigration),
[2001] FCJ 1443 at paras 15 and 16 [Perera]; see: Young v Canada
(Minister of Citizenship and Immigration), 2015 FC 316 at para 31 [Young]).
II.
Introduction
[2]
The Applicant seeks judicial review pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] of a decision rendered on December 17, 2014, by a Citizenship
officer [officer] rejecting the Applicant’s citizenship application.
III.
Background
[3]
The Applicant is a 17-year-old citizen of
Grenada, who, following her mother’s death in February 19, 2002, was
adopted by her Canadian aunt, Ms. Pansy Elizabeth Davidson, on April 15,
2011.
[4]
On May 23, 2011, the Applicant applied for
Canadian citizenship and a negative decision was rendered on June 25,
2013.
[5]
On June 17, 2014, on judicial review,
Justice Yves de Montigny of this Court ordered the determination anew of the
Applicant’s citizenship application (Docket: T‑1481‑13). In his
decision, Justice de Montigny first found that the officer’s findings did not
reflect consideration of the totality of the evidence. In particular, it was
noted that the officer failed to consider the extensive report by the Quebec
social worker in assessing the genuineness of the parent-child relationship.
Justice de Montigny also held that the officer’s inferences were unreasonable,
in particular in respect of the father of the Applicant’s purported ability to
take care of the Applicant, despite evidence of substantial changes over the years.
Finally, it was held that an interview with the Applicant’s adoptive mother
should be held “if the purpose of the adoption
questioned” (Order: T‑1481‑13 dated June 17, 2014, Certified
Tribunal Record at pp 15-20 [CTR].
[6]
As a result, the Applicant and Ms. Davidson were
invited to an interview at the High Commission of Canada in Port of Spain,
Trinidad and Tobago, held on November 24, 2014.
[7]
The Applicant’s citizenship application was
rejected by way of a letter dated December 17, 2014.
IV.
Impugned Decision
[8]
In rejecting the Applicant’s citizenship
application, the officer concluded that the Applicant did not meet the
requirements of paragraphs 5.1(1)(a), 5.1(1)(b) and 5.1(1)(d)
of the Citizenship Act, RSC 1985, c C-29 [Act].
[9]
First, the officer found that the Applicant
failed to establish that the adoption was in the best interests of the
(Applicant) child. In particular, the officer noted that the Applicant did not
cite “considerations such as family ties, parental
love, close relationship, parent-child relationship” in support of her
application (Officer’s decision, CTR at p 7).
[10]
Second, the officer observed a lack of evidence
in respect of the genuineness of the parent-child relationship. In the Global
Case Management System [GCMS] notes pertaining to the decision, the officer
observes that the “very limited contact and limited
proof of contact” between the Applicant and her adoptive parents, the
Applicant’s “very limited knowledge of Canada and of
family in Canada” and the appearance that the Applicant has “more of a relationship with her sisters’ family than with
[her] adopted parents and siblings” support this finding (Officer’s
notes, CTR at p 3). Moreover, the officer notes that the Applicant only
referred to Ms. Davidson as her mother near the end of the interview.
[11]
Third, the officer found that the adoption was
entered into primarily for the purpose of acquiring status or privilege in
relation to immigration and citizenship, and in particular, to provide the
Applicant with “access to the privileges of Canada’s
generous health care and education systems” (Officer’s decision, CTR at
p 7).
V.
Legislative Provisions
[12]
Subsection 5.1(1) of the Act provides the
following:
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Adoptees – minors
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Cas de personnes adoptées — mineurs
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5.1 (1) Subject to subsections (3) and
(4), the Minister shall, on application, grant citizenship to a person who,
while a minor child, was adopted by a citizen on or after January 1, 1947,
was adopted before that day by a person who became a citizen on that day, or
was adopted before April 1, 1949 by a person who became a citizen on that
later day further to the union of Newfoundland and Labrador with Canada, if
the adoption
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5.1 (1)
Sous réserve des paragraphes (3) et (4), le ministre attribue, sur demande,
la citoyenneté soit à la personne adoptée avant le 1er janvier 1947 par une
personne qui a obtenu qualité de citoyen à cette date — ou avant le 1er avril
1949 par une personne qui a obtenu qualité de citoyen à cette date par suite
de l’adhésion de Terre-Neuve-et-Labrador à la Fédération canadienne — soit à
la personne adoptée par un citoyen le 1er janvier 1947 ou subséquemment,
lorsqu’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;
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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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(c.1) did not occur in a manner that circumvented the legal
requirements for international adoptions; and
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c.1)
elle a été faite d’une façon qui n’a pas eu pour effet de contourner les
exigences du droit applicable aux adoptions internationales;
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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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VI.
Issues
[13]
The Applicant submits the following issues to be
considered by the Court:
a)
Did the officer commit a reviewable error in her
assessment of the evidence?
b)
Did the officer breach procedural fairness by
failing to interview the Applicant’s adoptive mother?
VII.
Standard of Review
[14]
It is common ground between the parties that the
applicable standard of review to the Officer’s assessment of the evidence and
findings in respect of paragraphs 5.1a), b) and d) of the
Act is that of reasonableness. As summarized by Justice Donald J. Rennie in Young
v Canada (Minister of Citizenship and Immigration), 2015 FC 316 at paras
15-17 [Young]:
[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.
[Emphasis added.]
[15]
The right to an interview is a procedural
fairness issue which attracts the standard of correctness (Canada (Minister
of Citizenship and Immigration) v Khosa, [2009] SCJ 12 at paras 42
and 43).
VIII.
Analysis
A.
Genuineness of the parent-child relationship
(paragraph 5.1(1)(b))
[16]
The officer’s GCMS notes pertaining to the
interview held on November 24, 2014, reveal that the officer was not
satisfied of the existence of a genuine parent-child relationship primarily
based on the Applicant’s limited contact with her adoptive parents, and limited
knowledge of Canada and of her family in Canada. As such, the officer concluded
that the Applicant failed to meet the requirements of paragraph 5.1(1)(b)
of the Act.
[17]
According to the jurisprudence of this Court, a
child adoption is a forward looking relationship. The assessment of the
genuineness of a parent-child relationship “is not
defined by the past but by the future about to happen as a result of the
adoption” (Perera at paras 15 and 16; see: Young, above at
para 31).
[18]
Justice Jean-Eudes Dubé’s reasoning in Perera,
recently adopted by Justice Rennie in Young, is instructive in assessing
the genuineness of a parent-child relationship for the purposes of immigration:
[13] Moreover, the Appeal Division has
adopted an improper concept of "genuine parent and child
relationship" in suggesting that the adopting parents' desire to bring the
boys to Canada and provide them with a better life and education is
contradictory to the establishment of a genuine parent and child relationship.
Contrary to the Appeal Division's understanding of the definition of the term
"adopted", the words "genuine parent and child relationship"
do not require that there existed a fully developed parent and child
relationship between the adoptive parents and the children at the time of a
sponsored application. More often than not, the genuine relationship is created
as a result of the adoption. The mere fact that adoptive parents want to bring
their adopted children with them to the country where they live is not a
presumption that they are attempting to create an adoption of convenience.
Canadian parents fly all over the world to find and adopt children. Surely,
visa officers will not close the door to these children because genuine
parental relationships have not yet been created.
[14] Similarly 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 would pretend to adopt an unknown child so as to bring him to Canada
for a financial reward. Clearly, such is not the case here.
[Emphasis added.]
(Perera, above at paras 13 and 14)
B.
Primary purpose of entering in to an adoption
(paragraph 5.1(1)(d))
[19]
The law in respect to a citizenship officer’s
finding that an adoption was entered into primarily for acquiring a benefit of
immigration or citizenship was recently summarized by Justice Rennie in Young,
above:
[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] F.C.J. 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]
Also, this Court has held that an adoptive
parent’s intent of providing a better quality of life for an adopted child in
Canada is a “legitimate goal” (Smith v Canada
(Minister of Citizenship and Immigration), 2014 FC 929 at para 65 [Smith]).
[21]
Such an intention does not necessarily reflect
an adoption of convenience. As illustrated by Justice Rennie in Young:
[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?
C.
Discussion
[22]
Having exposed the relevant legal principles
elaborated in the jurisprudence, the Court finds that the officer’s decision
cannot stand.
[23]
First, aside from the interview held on
November 24, 2014, aiming to remedy a breach of procedural fairness, the
officer failed to address the errors raised by Justice de Montigny on judicial
review.
[24]
Second, the officer fails to support the finding
that the adoption was entered into primarily for the purpose of acquiring
status or privilege in relation to citizenship or immigration in Canada with
any point of reasoning. Rather, the officer simply states that she is not
satisfied that the adoption meets the requirements of paragraph 5.1(1)d)
of the Act.
[25]
Such finding does not find anchorage in the
evidence and contradicts this Court’s view that the mere fact that adoptive
parents want to bring their adopted child to Canada to provide them with a
better quality of life are not presumptions that they are attempting to create
an adoption of convenience (Perera, above at para 13; Smith,
above at para 65; Young, above at para 24).
[26]
Third, the officer’s reasons reveal that
evidence on record, such as the Guardian Ad Litem Report and the social
worker’s reports, were not considered in the determination of the Applicant’s
citizenship application.
[27]
Such as previously noted by Justice de Montigny
in his decision (T‑1481‑13), the two reports provide extensive
evidence and analysis relating to the best interests of the (Applicant) child,
the nature of the relationship between the Applicant and her adoptive parents
and the circumstances and motivations surrounding the adoption (Guardian Ad
Litem Report for Rickta Mathilda McLawrence and Psychosocial Evaluation for
International Adoption, CTR at pp 53-65 and 68-72).
[28]
An officer’s omission to consider the totality
of the evidence, particularly that which appears to contradict an officer’s
finding, constitutes a reviewable error. Such as stated by Justice Richard G. Mosley
in Jardine v Canada (Minister of Citizenship and Immigration), 2011 FC
565 at para 21:
[21] It is well established that while
a decision maker is presumed to have considered all of the evidence, where
relevant evidence runs contrary to the decision maker's finding on the central
issue, there is an obligation to analyse such evidence and explain why it has
not been accepted or why other evidence is preferred instead: Pradhan v.
Canada (Minister of Citizenship and Immigration), 2005 FC 1500, 52 Imm.
L.R. (3d) 231 at para 14; Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35, [1998] F.C.J. No. 1425
(QL).
[29]
It was therefore unreasonable for the officer to
conclude that the adoption was not in the best interests of the (Applicant)
child, whilst ignoring the body of evidence which stands against this
proposition.
[30]
In sum, the officer’s decision lacks the
transparent and intelligible justification, and therefore fails to comply with
the requirements of reasonableness established in Dunsmuir v New Brunswick,
[2008] SCJ 9 at para 47.
IX.
Conclusion
[31]
In light of the foregoing, this application for
judicial review is granted.
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