Docket: T-765-13
Citation: 2013 FC 1244
Toronto, Ontario, December 11, 2013
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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TERIKA DAVIS
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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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REASONS FOR ORDER AND ORDER
[1]
These Reasons for Order and Order must be read
in conjunction with those supplied in the decision in T-764-13 for the reasons
explained in the Introduction to that decision, which is quoted in the
paragraphs that follow.
I. Introduction
[2]
In April 2009, Lancia Davis (DOB: August 18,
1989) and her younger sister Terika Davis (DOB: December 23, 1991), both
citizens of Jamaica, were adopted by their Canadian grandmother, Ida Brown
(Ida). Based on the adoption, Lancia and Terika each applied for Canadian
citizenship in June 2009. The same Citizenship Officer (Officer) rejected both applications
on the same grounds. As a result, Lancia and Terika filed separate Applications
for judicial review with the Court challenging the rejection decisions (Docket
T-764-13 for Lancia and Docket T-765-13 for Terika).
[3]
Because Lancia was more than 18 years old on the
date of adoption, her application for citizenship was governed by s. 5.1 (2) of
the Citizenship Act (R.S.C., 1985, c. C-29) (Act). Because Terika
was less than 18 years old on the date of adoption, her application for
citizenship was governed by s. 5.1 (1) of the Act. Section 5.1 (1) and
(2) reads as follows:
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5.1 (1) Subject to subsection (3), the
Minister shall on application grant citizenship 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
(a) was in the best interests of the
child;
(b) created a genuine relationship of
parent and child;
(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
(d) was not entered into primarily for
the purpose of acquiring a status or privilege in relation to immigration or
citizenship.
(2) Subject to subsection (3), the
Minister shall on application grant citizenship to a person who was adopted
by a citizen on or after January 1, 1947 while the person was at least 18
years of age if
(a) there was a genuine relationship of
parent and child between the person and the adoptive parent before the person
attained the age of 18 years and at the time of the adoption; and
(b) the adoption meets the requirements
set out in paragraphs (1)(c) and (d).
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5.1 (1) Sous réserve du paragraphe (3),
le ministre attribue, sur demande, la citoyenneté 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 :
a) elle a été faite dans l’intérêt
supérieur de l’enfant;
b) elle a créé un véritable lien
affectif parent-enfant entre l’adoptant et l’adopté;
c) elle a été faite conformément au
droit du lieu de l’adoption et du pays de résidence de l’adoptant;
d) elle ne visait pas principalement
l’acquisition d’un statut ou d’un privilège relatifs à l’immigration ou à la
citoyenneté.
(2) Sous réserve du paragraphe (3), le
ministre attribue, sur demande, la citoyenneté à la personne adoptée par un
citoyen le 1er janvier 1947 ou subséquemment lorsqu’elle était âgée de
dix-huit ans ou plus, si les conditions suivantes sont remplies :
a) il existait un véritable lien
affectif parent-enfant entre l’adoptant et l’adopté avant que celui-ci
n’atteigne l’âge de dix-huit ans et au moment de l’adoption;
b) l’adoption satisfait aux
conditions prévues aux alinéas (1)c) et d).
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[4]
With respect to the applications for
citizenship, the Officer interviewed Lancia, Terika, and Ida and took
contemporaneous notes of each interview. The interview notes constitute the
evidence upon which each rejection decision was made (Tribunal Record, pp. 009
to 040). In the opening to each of Lancia’s and Terika’s decisions, the Officer
made a specific statement of facts drawn from the interview notes directed at
the circumstances of each individual. However, with only slight factual
variation, the primary conclusions reached in both decisions are identical: a
“genuine relationship of parent and child” did not exist, and the adoption was
“primarily for the purpose of acquiring a status or privilege in relation to
immigration and citizenship”.
[5]
As a result, for clarity, the Reasons for Order
and Order (ROO) in each of Lancia’s and Terika’s Applications for judicial
review will take the following approach: APPENDIX 1 to each ROO will
provide the Officer’s specific statement of facts expressed in the decision
rendered; and the narrative of each ROO will provide the Officer’s reasons for
decision. Given the high degree of similarity in the content of the decisions
under review, there is a high degree of similarity with respect to my analysis
of the issues presented by the Officer’s findings of fact and reasons for
decision. Thus, for clarity and to avoid unnecessary repetition, the ROO with
respect to Lancia’s Application will be the Master from which narrative and
findings will be incorporated by reference into the ROO with respect to
Terika’s Application. APPENDIX 2 to Lancia’s ROO contains what I find to
be specifically relevant evidence with respect to the purpose of the adoptions.
[6]
There is one unique feature that distinguishes Terika’s
Application, which is the requirement that her best interests be addressed in
determining her application for citizenship. This feature will be addressed in
the ROO with respect to Terika.
[7]
It is agreed that the standard of review of the rejection
decisions is reasonableness. Counsel for both Lancia and Terika argues that the
rejection decisions under review are unreasonable. For the reasons which
follow, I agree with this argument.
II. A Genuine Relationship of Parent and Child?
[8]
The specific statement of the facts directed at
Terika’s circumstances is quoted in APPENDIX 1 of these reasons. The Officer’s reasons for decision, which are addressed to Ida, are
as follows:
Based
on the information provided in Terika's application and during the interviews,
Terika does not meet the requirements of paragraphs 5.1 (1)(b) and 5.1 (1)(d)
of the Citizenship Act. In coming to this decision, I considered all of the
evidence and the factors set out in paragraph 5.1 (3)(a) of the Citizenship
Regulations.
I
am not satisfied that the adoption has created a genuine relationship of parent
and child. I noted that Terika was 17 1/2 years old at time of the adoption and
that she had lived with her birth father prior to the adoption. The evidence
suggests that the relationship between Terika and her birth parents has
remained the same; her maintaining regular contact with them and her birth
father continuing to provide guidance and some financial support for her care.
During
your interview, you indicated that Terika's birth father was financially stable
and gainfully employed in Jamaica. The evidence shows that the relationship
between Terika and her birth father was a typical parent-child relationship
prior to the adoption.
It
is understood that you have been caring for Terika since July 22, 2008;
however, it appears that your relationship with her is a typical
grandparent-grandchild relationship. Therefore, I am not satisfied that the
adoption created a genuine relationship of parent and child.
[9]
On this question of genuine relationship, I
hereby incorporate by reference the narrative and findings expressed in Lancia’s
decision. I do so with the proviso that there is a variance with respect to the
Officer’s reference to the Citizenship Act and the Citizenship
Regulations due to the fact that Terika was under 18 years of age when her
adoption occurred:
Based
on the information provided in Terika's application and during the interviews,
Terika does not meet the requirements of paragraphs 5.1 (1)(b) and 5.1 (1)(d)
of the Citizenship Act. In coming to this decision, I considered all of
the evidence and the factors set out in paragraph 5.1 (3)(a) of the Citizenship
Regulations.
[10]
The variance does not affect the substance of the
findings as expressed in Lancia’s decision on the relationship question except
to introduce another important reason for finding that the Officer’s rejection
of Terika’s application for citizenship is unreasonable.
[11]
Pursuant to s. 5.1 (1)(a) of the Act, the
Officer was required to specifically address Terika’s best interests and to
make a finding on her best interests. In my opinion, the Officer’s failure to
do so renders the decision under review unreasonable.
III. Adoption for the Purpose
of Acquiring Status or
Privilege in
Relation to Immigration or Citizenship?
[12]
On this question, the Officer made the following
finding also addressed to Ida:
I
am also not satisfied that the adoption was not entered into primarily for the
purpose of acquiring a status or privilege in relation to immigration or
citizenship.
The reasons given by both you and Terika as to why this adoption
took place were for the purpose of providing Terika with a better education,
economic gains, family ties and a better quality of life in Canada.
[Emphasis
added]
[13]
On this question, I hereby incorporate by
reference the narrative and findings expressed in Lancia’s decision, including
the content of Appendix 2.
IV. Result
[14]
For the reasons provided, the decision under
review must be set aside.
APPENDIX 1
Ms.
Ida Rebbica BROWN
106 -
177 Pendrith Street Toronto, Ontario M6G 1 S1
March
22, 2013
Dear
Ms. Brown:
I have
completed the assessment of Terika Anna-Stacia Davis, Application for Canadian
citizenship for a person adopted by a Canadian citizen (on or after January 1,
1947). This letter is to inform you that her application has been refused for
the reasons set out below.
You
and Terika were present with you legal counsel, Nathan Higgins, in this office
on January 22, 2013 and were interviewed by me. During your interviews, you
provided me with the following details which I considered before making my
decision:
You
stated that the reason you decided to adopt Terika was to help out your
brother, Oral Conrad Davis, Terika's birth father, who is residing in Jamaica.
You continued to state that your brother was no longer able to provide a safe
environment for Terika, so you thought it best that she join her extended
family in Canada. During her visit to Canada, Terika advised you that she would
like to remain permanently in Canada and you asked your brother if he would
give his consent for you to adopt her.
Both
you and Terika stated that Terika resided with her birth parents and sister,
Lancia Lesette Davis, from birth until approximately 6 years old, around which
time Terika's parents separated. At this time, Terika began residing with her
birth mother and sister at the home of her grandparents, Maye and Nathan Ellis.
At approximately the age of 11, Terika went to reside with her birth father,
step-mother (common-law) and sister at their family home.
You
also stated that Terika's birth father continued to support Terika and her
sister financially after her birth parent's separation and during the time that
they were living with their birth mother and grandparents.
You
both stated that Terika had a good relationship with her birth father and that
the issue lay with her step-mother, Shelly-Ann Earle. You both stated that
Terika's step mother was verbally abusive with her. Eventually, this resulted
in Terika moving out and living in a one room house that her birth father had
built. Terika was approximately 14 years old when she and her sister began
these new living arrangements.
You
both stated that Terika's birth father paid for Terika to attend a private
elementary school and that he worked very hard to provide for the family. You
both described him as a humble person with a kind and caring nature. You both
continued to state that Terika's birth father is a "good father" and
that he always provided and continues to provide Terika with financial,
emotional and parental support.
You
stated that you were very concerned for Terika's safety in Jamaica due to her
step mother's abusive behavior and also because there had been a few girls
raped behind their birth father's house. Also, you had expressed concern for
the well-being of Terika and her sister residing alone in a one-room house that
only had a kitchen but no washroom. For this reason, you suggested that Terika
and her sister come to visit you in Canada. On July 22, 2008, Terika and her
sister arrived in Canada as visitors. During Terika's visit, she informed you
that she did not want to return to Jamaica and that she wished to remain in
Canada. Upon this request, you and your two daughters, Oeon and Marsha, decided
to call the immigration office and inquire as to the possibility of Terika
being able to remain in Canada permanently. You stated that the immigration
officer advised you to adopt Terika since her birth parents are not Canadian
citizens. At this time, you contacted a legal representative at West Toronto
Community Legal Services. In turn, they directed you to an adoption lawyer, who
initiated the adoption proceedings.
During
your interviews, you both stated that your relationship with each other
remained the same after the adoption.
Further,
both you and Terika informed me that Terika's relationships with her birth
parents remained the same after the adoption and that there is regular contact
with her birth father through texting and telephone conversations as well as
regular contact with her birth mother through texting and Facebook.
Furthermore, you both stated that Terika's birth father continues to be
involved in making decisions about her affairs and sends her money and gifts
whenever he is able to do so.
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