Docket: T-360-15
Citation:
2015 FC 1227
Ottawa, Ontario, October 29, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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GURCHARAN SINGH BIRAK
& IQBAL
KAUR BIRAK
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Applicants
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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
[1]
The Applicants’ application for Canadian
citizenship for their adopted son, Gursimran Singh Birak [Gursimran], was
denied by an officer who held that the adoption did not create a “genuine relationship of parent and child,” as required
by section 5.1(1)(b) of the Citizenship Act, RSC, 1985, c C-29.
[2]
The Applicants are Canadian citizens living in
Vancouver, British Columbia. Their son Gursimran lives in Village Kaley in
India.
[3]
In 2009, the Applicants visited India from
Canada. They had wanted to have a child and had tried in vitro
fertilization, but it had failed. During their visit, they met with
Gursimran’s biological parents, with whom they have a family connection:
Gursimran’s biological father is the uncle of Ms. Birak. All agreed to the
Applicants adopting Gursimran and, in June 2009, the Applicants participated in
a ceremony in which they adopted Gursimran as their son. The Deed of Adoption
was completed and registered in early July.
[4]
Gursimran’s caregiver in India is the Applicants’
friend and driver. He also looks after the Applicants’ land. On August 10,
2009, the Applicants granted him a power of attorney to act as their son’s
guardian.
[5]
The Applicants have had minimal physical contact
with Gursimran since his adoption. In August 2009, Ms. Birak visited India
after her grandmother-in-law died. She saw her son at this time but did not
stay with him. In 2012, both Applicants visited India. They saw their son at
this time and also attended a wedding.
[6]
The Applicants have telephone contact with their
son. They say that they generally call their son 3 to 4 times a week. They
speak with their son for 25 to 30 minutes on Sundays and for shorter periods
during the week. They also discuss business matters with the guardian during
these calls. The Applicants send their son cards at Christmas, New Year and on
his birthday.
[7]
On January 19, 2015, the officer held an
interview in India with the Applicants, their son, the biological mother, and
the son’s guardian, in order to determine whether the son qualified for
citizenship. She found that he did not.
[8]
Subsection 5.1(1) of the Act provides that “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 … if the adoption” meets the four conditions set out in the
subsection. The second condition in paragraph 5.1(1)(b), and that which lies
at the heart of this application, is that the adoption “created
a genuine relationship of parent and child.”
[9]
The officer gave three reasons for finding that
there was no genuine parent-child relationship: (i) the Applicants’ lack of knowledge
of Gursimran, (ii) the low level of financial support they provide to
Gursimran, and (iii) their limited contact with Gursimran.
[10]
The officer found that the Applicants had little
knowledge about their son, and vice versa. The officer noted that the
Applicants were unable to name their son’s school friends and did not know that
he had “conditionally passed with grace marks.”
She also found that Gursimran “knew very little about
[the Applicants], his adoptive parents, and [the Applicants’] life in Canada.”
[11]
The officer found that the Applicants paid 5000
INR per month in remittances for the support of their son and found that “[t]his is insufficient to cover the cost of living, where
twice that amount would be about the average cost, though still low, for a
teenager.”
[12]
The officer found that Mr. Birak had only
visited his son once in the five and a half years between the adoption in July
2009 and the interview in January 2015. Ms. Birak visited on one additional
occasion. The officer found that the phone bills presented as evidence of
their contact with their son were “inconclusive.”
She found that the calls listed on the bills were “short”
and that “[g]iven that the calls were to discuss land
and business related issues with Power of Attorney, as well as issues related
to Gursimran, very little time is left to speak with Gursimran personally.”
[13]
The Applicants submit that the officer’s
decision was unreasonable based on the facts before her and procedurally unfair
in that she failed to raise with them her concern about the level of financial
support they provided to their son.
[14]
In their memoranda of argument, both parties
engage with issues that are not raised by the officer in the written decision.
Her notes include sections entitled “Conclusion”
and “Summary.” In these sections, the officer
provides reasons; some of these reasons make it into the final decision letter,
while others do not.
[15]
No one provided authority for the suggestion
that the officer’s notes should comprise part of her reasons. In Baker v
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker]
the Court held that an immigration officer’s internal notes should be
considered to be the reasons for the officer’s decision, given that the
applicant was entitled to reasons, no other reasons were provided, and the
notes had been produced in response to the appellant’s request for reasons. Baker
suggests that an officer’s notes may count as reasons in some cases. There are
similar cases in the human rights context where the Federal Court of Appeal has
stated that, where the Commission accepts the recommendation of an investigator
with respect to whether a complaint should be sent to the Tribunal for a
hearing but offers no reasons of its own, then the investigator’s reasons may
be considered to be the reasons of the Commission: Sketchley v Canada
(Attorney General), 2005 FCA 404, [2006] 3 FCR 392 at para 37, Bergeron
v Canada (Attorney General), 2015 FCA 160 at para 60).
[16]
Baker and the
human rights jurisprudence are clearly distinguishable from the facts here
because, in this case, the officer provided detailed reasons in her decision
letter. There is no need to look behind the decision letter in order to
discover her rationale for denying the Applicants’ claim. Moreover, in my
view, in these circumstances it would be unfair to assess the officer’s
decision through reference to reasons that she mentions in her notes but
ultimately decided not to include in her final decision. Therefore, while I
will consider the notes to the extent that they provide context and background
with respect to the decision, the focus of this review must be on issues raised
in the decision under review.
[17]
The Court’s review is also restricted to the
information that was before the officer. The Applicants rely on additional
information, not before the officer, to address her concerns. This is not
properly before the Court and thus is not considered. At the hearing, counsel
wisely did not rely on this information in making his submissions.
[18]
It is agreed by the parties, and accepted by the
Court, that the standard of review for the officer’s finding under paragraph
5.1(1)(b) of the Act is reasonableness, while the standard for the question of
procedural fairness is correctness.
[19]
The officer found that the Applicants had
minimal knowledge of their adopted son and noted that they “seemed unaware of his educational situation, particularly, that
he conditionally passed with grace marks.” Both parents described him
as doing well at school.
[20]
The Applicants submit that the officer’s
decision is unreasonable in this respect because they relied on information provided
to them by their son’s guardian and he says that he told the officer that the
school told him that Gursimran was doing well.
[21]
I am unable to find the officer’s finding
unreasonable. The Applicants had copies of Gursimran’s report cards and in
fact presented them to the officer. They show a child who is not doing well in
school and in fact is doing very poorly. That the Applicants took little
interest in his schooling is evident from the conflict between their answers
and the facts. If they relied on the words of the guardian when they had evidence
in front of them to the contrary, then this too shows a lack of interest in
their son’s endeavours at school. As was noted by the officer: “This seems especially concerning given the amount of
importance placed on education in the Indian culture in a genuine parent-child
relationship.”
[22]
The Applicants also challenge as unreasonable
the officer’s assessment of their telephone contact with Gursimran, namely that
the evidence of phone calls with their son was “inconclusive.”
They object to the officer’s observation that their phone bills show “short calls” to India. However, a review of the phone
bills reveals that many of these calls were, indeed, of short duration.
Furthermore, the Applicants themselves told the officer that most of their conversations
with their son are for 2 to 3 minutes (with longer conversations on Sundays).
The officer expressed concern about the length of the calls overall, as well as
about the fact that the calls included time spent speaking to the guardian
about issues unrelated to Gursimran. Her concerns are borne out by the
evidence.
[23]
The Applicants also submit that the officer
erred in stating that the calls “were to discuss land
and business related issues with Power of Attorney, as well as issues related
to Gursimran.” However, this statement is supported by the officer’s
notes. The notes record the following exchange between the officer and
Gursimran’s guardian:
Q Do the
adoptive parents call Gursimran on the telephone?
A yes, mostly
on Sundays, or maybe every 2-3 days
Q whose phone
do they use when they call?
A they call
on my phone (… I’ve had this number last ten years), Gursimran doesn’t have a
phone, they call on my cell phone which is usually with me
Q how long do
they talk for on Sunday?
A about half
an hour with him directly and some talk with me
Q you talk
with them also?
A yes, I
manage land for them.
[24]
This exchange supports the officer’s observation
that the calls involved discussions of land and business with the guardian and
were not solely focused on Gursimran.
[25]
Lastly, the applicants submit that the officer
acted in a procedurally unfair manner when she concluded that their remittances
were inadequate without giving them an opportunity to make submissions on this
point.
[26]
The Applicants cite Yuan v Canada (Minister
of Citizenship and Immigration), 2001 FCT 1356 [Yuan] in support of
their contention that they had a right to respond to the officer’s concerns. The
Court in Yuan at para 12 held that: “While the
duty of fairness does not necessarily require an oral hearing, there is a
requirement that the visa officer provide the applicant with an opportunity to
address a major concern, in other words, respond.” They also rely on Hernandez
Bonilla v Canada (Minister of Citizenship and Immigration), 2007 FC 20 at
para 25 for the proposition that “visa officers may not
base their decisions upon stereotypes or generalizations, without allowing the
applicant to respond.”
[27]
The respondent cites Tran
v Canada (Minister of Citizenship and Immigration),
2006 FC 1377 [Tran] in support of its
position that no breach of procedural fairness has occurred in this case: At
para 31 of Tran the Court observes that “it is reasonable to expect that Visa
Officers will bring their own experience and expertise to the applications before
them.” According to the
respondent, it was fair for the officer to rely on her personal experience of
the cost of living in India in order to find that the Applicants’ remittances
were inadequate, without providing them with an opportunity to respond.
[28]
Although the applicants submit that they were
treated unfairly in not having this information put to them, they have not
offered any evidence on this application that suggests that the view of the
officer was in error or that, aside from their remittances to India, they
provided other financial support to their son.
[29]
A minor breach of procedural fairness should not
result in a re-determination absent some evidence that the breach affected the
result. Here, the officer gave three reasons for rejecting the application and
two of them have been found to be reasonable. I cannot conclude that putting
the remittances issue to the Applicants would have produced any different
result absent some evidence that the officer’s view of the cost of living was
in error. Even when there are procedural breaches, judicial review remedies
are discretionary. Absent any evidence that the officer’s conclusion that the
financial support was insufficient to maintain Gursimran was wrong, and given
the reasonableness of the remaining findings, I am not convinced, even if there
was a breach, that it had any impact on the ultimate decision.
[30]
Neither party proposed a question for
certification.
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