Docket: IMM-1693-17
Citation:
2017 FC 995
Ottawa, Ontario, November 3, 2017
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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NAHEED
SALAHUDDIN SOHAIL
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The respondent, Ms. Naheed Salhuddin Sohail, is originally
from Pakistan. In 2001, Ms. Sohail and her husband, Mr. Sohail Obaidullah
Ahmed, arrived in Canada as permanent residents. They both obtained their
Canadian citizenship in 2005. In June 2010, Ms. Sohail and her husband initiated
proceedings with the Canadian immigration authorities in order to adopt Mr.
Zabih-Ur-Rehman Bilal, who is Ms. Sohail’s nephew and resides in Karachi,
Pakistan. Mr. Bilal was 13 years old at the time. Ms. Sohail and her husband thus
sought to sponsor Mr. Bilal’s application for permanent residence in Canada as
a member of the “family class”.
[2]
In February 2013, an immigration officer
[Officer] of the High Commission of Canada in Islamabad, Pakistan denied Mr. Bilal’s
application [Officer Decision]. The Officer was not satisfied that Mr. Bilal
had developed a parent-child relationship with Ms. Sohail and her husband, and
found that the conditions prescribed by the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] and paragraph 117(1)(g) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [Regulations] were
not met. Ms. Sohail appealed the Officer Decision. In March 2017, the
Immigration Appeal Division [IAD] of the Immigration and Refugee Board granted her
appeal, reversed the Officer Decision and determined that the adoption of Mr.
Bilal was genuine and not primarily for immigration purposes [IAD Decision].
[3]
The Minister of Citizenship and Immigration
[Minister] now seeks judicial review of the IAD Decision. The Minister argues
that the IAD erred in determining that the intended adoption of Mr. Bilal was
not entered into primarily for the purpose of acquiring a status or privilege
under the IRPA. The Minister contends that the IAD Decision is unreasonable and
should be quashed and remitted to a differently-constituted panel for
redetermination.
[4]
The only issue raised by the Minister is whether
the IAD Decision is unreasonable. On her part, Ms. Sohail also brings up the
preliminary issue of whether the Court should consider an affidavit submitted
by the Minister in support of the application for judicial review. This
affidavit is signed by Ms. Zofia Przybytkowski, who acted as the Minister’s
counsel before the IAD, and contains the notes she prepared for the IAD hearing
as well as those taken during the hearing [Przybytkowski Affidavit].
[5]
For the reasons that follow, the Minister’s
application for judicial review will be dismissed. I am not convinced that the IAD
Decision falls outside the range of possible and acceptable outcomes defensible
in respect of the facts and law. I instead find that the evidence before the
IAD reasonably supports its decision, and that the reasons adequately explain
how the IAD concluded that the intended adoption of Mr. Bilal was not entered
into primarily for the purpose of acquiring a status or privilege under the
IRPA. I see no ground upon which the Court should intervene. Furthermore, I
agree with Ms. Sohail that the Przybytkowski Affidavit filed by the Minister is
not admissible, and it has not been considered by the Court in the context of
this judicial review.
II.
Background
A.
The Appeal Decision
[6]
The IAD prefaced its decision by noting that,
since the Officer Decision, it was determined and acknowledged that Mr. Bilal had
not yet been adopted. As such, the IAD focused solely on the issue of whether
the adoption process had been entered into primarily for the purpose of
acquiring any status or privilege under the IRPA.
[7]
The IAD concluded that Ms. Sohail had discharged
her burden of demonstrating that, on a balance of probabilities, she intended
to adopt Mr. Bilal in Canada in order to obtain legal recognition of a factual
situation “born out of love” which already
existed, namely that Mr. Bilal is considered, behaves and will continue to
behave as Ms. Sohail’s son.
[8]
The IAD largely based its analysis on the
testimony given at the hearing. According to the IAD’s rendition of the testimony
of Ms. Sohail and her husband, the intimate bond between them and their nephew
was formed when Mr. Bilal was born. The IAD noted Ms. Sohail’s emotional
recollection that, in the early hours of the child’s life, her sister told her
he was now hers, and that her sister has continued to express such desire ever since.
The IAD added that, though it may seem curious for Ms. Sohail’s sister and her
husband to give away their first child, a boy, Ms. Sohail provided a reasonable
answer to the effect that it was her emotional bond with the child that
ultimately prevailed. The IAD further described how Ms. Sohail deftly explained
that the child spent most weekends and holidays with her and her immediate
family; that Ms. Sohail and her husband had custody of Mr. Bilal in Pakistan;
that they continued to provide for his financial needs; that they communicated
every day; and that Mr. Bilal, now 20 years of age, consulted Ms. Sohail and
her husband in all major decisions concerning him.
[9]
The IAD further acknowledged that, even though
Ms. Sohail could have submitted more documents to establish the existence of frequent
contacts with Mr. Bilal and the expenses being covered for him, her testimony (and
that of her husband) remained a credible way to establish the factors necessary
to determine a parent-child relationship. The considerable perseverance
required during the long and complex adoption process spanning several years,
which included participation in a home study and the issuance of a letter of “no objection” from the Ontario authorities, was
further corroboration of Ms. Sohail’s and her husband’s commitment to Mr. Bilal.
[10]
The IAD then addressed the main concern
expressed by the Officer following the initial interview, namely the importance
for Mr. Bilal of coming to Canada in order to complete his studies. In response
to this concern, the IAD first stated that the Officer’s depiction of Mr.
Bilal’s responses at the initial interview was truncated by a poor perception
of the situation, which was not one where an adoption had already occurred and
where the bonds with the biological parents had been severed. The IAD further related
how, in a location like Karachi where safety remained precarious, it was
somewhat normal for those who cared for the well-being of a child to emphasize
the dangers to which he may be subjected by staying there. The IAD also gave
credence to what Ms. Sohail and her husband viewed as the paradox of this
matter, namely the fact that Ms. Sohail began the steps to adopt Mr. Bilal
while she was in Canada in order to have him come to the country. According to
the IAD, it could not be any other way because Ms. Sohail and her husband did
not need to undertake the adoption process if the child were to stay in
Pakistan. The IAD underlined that Ms. Sohail and her husband already had
custody of Mr. Bilal in Pakistan and that adoption, as the concept is considered
in Canada, was illegal there. Thus, said the IAD, refusing sponsorship by
claiming that the sole purpose of the process was to acquire a privilege under
the IRPA equated to circular reasoning and distorted the objectives of
paragraph 117(1)(g) of the Regulations.
[11]
Lastly, regarding the ongoing contact between
Mr. Bilal and his biological parents, the IAD noted Mr. Bilal’s candid response
in respect to his intention to continue to communicate with them once he
arrives in Canada, and concluded that this did not constitute a breach of the
sponsorship opportunity provided by the Regulations or an attack on the “integrity of the system”. For the IAD, it seemed
normal for Mr. Bilal not to completely sever ties with those with whom, because
of the duration of the adoption process, he had to live for a large part of his
life and who are still part of the family.
B.
The standard of review
[12]
This Court has consistently held that decisions
of the IAD, as an expert tribunal, must be assessed according to the standard
of reasonableness and are owed a high degree of deference (Truong v Canada
(Citizenship and Immigration), 2017 FC 422 at para 20; Nguyen v Canada
(Citizenship and Immigration), 2016 FC 1207 at para 11). More specifically,
matters relating to adoption in the context of immigration beckon an analysis
on the reasonableness standard given their factually-intensive nature (Alvarado
Dubkov v Canada (Citizenship and Immigration), 2014 FC 679 at para 6). Furthermore,
the issues on the present application relate to the IAD’s interpretation and
application of the IRPA, one of its home statutes. As the Supreme Court repeatedly
stated in Alberta (Information and Privacy Commissioner) v Alberta Teachers’
Association, 2011 SCC 61 [Alberta Teachers] and its progeny, when
an administrative tribunal interprets or applies its home statute, there is a
presumption that the standard of review applicable to its decision is
reasonableness (Alberta Teachers at paras 39 and 41; Tervita Corp v
Canada (Commissioner of Competition), 2015 SCC 3 at para 35; Commission
scolaire de Laval v Syndicat de l’enseignement de la région de Laval, 2016
SCC 8 at para 32).
[13]
When reviewing a decision according to the
reasonableness standard, this Court must focus its analysis on “the existence of justification, transparency and
intelligibility within the decision-making process”; the IAD’s findings
should not be disturbed as long as the decision “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
at para 47). In conducting a reasonableness review of factual findings, it is
not the role of the Court to reweigh the evidence or the relative importance
given by the decision-maker to any relevant factor (Kanthasamy v Canada
(Citizenship and Immigration), 2014 FCA 113 at para 99). Under a
reasonableness standard, as long as the process and outcome fit comfortably
with the principles detailed above, a reviewing court must not substitute the
decision-maker’s findings and conclusion for its own view of a preferable
outcome (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at
para 17).
III.
Analysis
A.
The Przybytkowski Affidavit is not admissible
[14]
I will first deal with the preliminary issue
raised by Ms. Sohail.
[15]
In support of its application, the Minister has
filed an affidavit and accompanying documents, consisting notably of notes
prepared by the Minister’s counsel for argument and submissions before the IAD,
as well as post-hearing summaries penned by counsel. Ms. Sohail submits that
this new evidence is inadmissible before the Court. Ms. Sohail pleads that, if
the Minister sought to shed light on what transpired at the IAD hearing, a
transcript or audio recording of the hearing should instead have been
submitted. On its part, the Minister claims that the Przybytkowski Affidavit provides
helpful background information on the circumstances in which the IAD Decision
was taken. Relying on Association of Universities and Colleges of Canada v
Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [AUCC]
and Agnaou v Canada (Attorney General), 2014 FC 850, the Minister
contends that the affidavit falls within the accepted exceptions to the general
rule that, in judicial review proceedings, evidence is restricted to materials
that were before the administrative decision-maker.
[16]
I do not agree with the
Minister and find that the Przybytkowski Affidavit cannot
be admitted by the Court.
[17]
The submission of affidavits proffering
additional information or facts in the context of applications for judicial
review has been met with caution by the courts. The case law has clearly
established that a judicial review application strictly relates to the decision
under review and that the record before the reviewing
court must be that which was before the administrative tribunal (Bernard v Canada (Revenue Agency), 2015 FCA 263 [Bernard]
at paras 13-28; Sedighi v Canada (Citizenship and Immigration), 2013 FC
445 at para 14; Mahouri v Canada (Citizenship and Immigration), 2013 FC
244 at para 14). The general rule is that a reviewing court should not receive
extrinsic evidence going beyond the tribunal record and the decision itself (Bernard
at para 18; Bekker v Canada, 2004 FCA 186 at para 11; Leslie v
Canada (Public Safety and Emergency Preparedness), 2017 FC 119 at para 4). In
other words, the task of a reviewing court is to determine whether the
administrative decision-maker erred in deciding as it did based on the
documents it received and the oral evidence it heard (Sosiak v Canada
(Attorney General), 2003 FCA 205 at para 14; Gitxsan Treaty Society v
Hospital Employees’ Union, [2000] 1 FCR 135 (FCA) at para 15).
[18]
Exceptions to this general
rule are limited. In Connolly v Canada (Attorney
General), 2014 FCA 294 at para 7, the Federal Court of Appeal, citing the
words of Mr. Justice Stratas in AUCC, outlined that the recognized
exceptions to this general prohibition “tend to facilitate or advance the role of the judicial review court
without offending the role of the administrative decision-maker” (AUCC at para 20). These exceptions include: (i) an
affidavit providing general background assisting in understanding the issues
relevant to the judicial review; (ii) an affidavit necessary to bring evidence
on procedural defects or a breach of procedural fairness; and (iii) an
affidavit highlighting the complete absence of evidence before the
administrative decision-maker (AUCC at para 20).
[19]
The Minister contends that the
Przybytkowski Affidavit falls
primarily within the “background information” exception as well as into the “no evidence” one by analogy.
I disagree. The “background information” exception
has a narrow scope. In Delios v Canada (Attorney
General), 2015 FCA 117 [Delios], Mr. Justice
Stratas summarized it as follows (Delios at para 45):
[45] The “general background” exception
applies to non-argumentative orienting statements that assist the reviewing
court in understanding the history and nature of the case that was before the
administrative decision-maker. In judicial reviews of complex administrative
decisions where there is procedural and factual complexity and a record
comprised of hundreds or thousands of documents, reviewing courts find it
useful to receive an affidavit that briefly reviews in a neutral and
uncontroversial way the procedures that took place below and the categories of
evidence that the parties placed before the administrator. As long as the
affidavit does not engage in spin or advocacy – that is the role of the
memorandum of fact and law – it is admissible as an exception to the general
rule.
[20]
In my view, no matter the angle from which they
are looked at, counsel’s notes detailing her experience of the IAD hearing do
not constitute background information that might assist the Court in
understanding the relevant issues before the IAD. Though the Minister claims
that the Przybytkowski Affidavit simply aims to demonstrate the topics raised
by counsel at the IAD hearing, it essentially engages in advocacy and merely
serves to re-argue the facts and the Minister’s theory of the case. If the
purpose of the affidavit was to aid the Court by depicting grave errors of
procedure, fact or law committed by the IAD at the hearing or subsequent
decision, then the Minister could and should have submitted an unedited hearing
transcript or recording; summaries penned by counsel cannot be held to be an
accurate depiction of what occurred in the hearing. If the goal was rather to
prove an unreasonable assessment by the IAD, then the memorandum of argument is
the means of achieving it, with the support of legal principles backed by
jurisprudence and appropriate references to the record before the IAD.
[21]
Moreover, this Court has previously held that
notes by counsel should be disregarded by reviewing courts, as they do not form
part of the record on which the initial decision was made (El-Hajj v Canada
(Minister of Citizenship and Immigration), 2005 FC 1737 at para 7). In
addition, personal notes cannot be accepted as a means of filling evidentiary
gaps and cannot serve as a substitute for a voice recording or verbatim record
of testimony (Goodman v Canada (Minister Citizenship and Immigration),
[2000] FCJ No 342 (FC) at para 87). At the hearing before this Court, counsel
for the Minister indicated that she was not aware of any decision where
counsel’s notes have been accepted as proper affidavit evidence under the “background information” exception. Neither am I.
[22]
As to the Minister’s claim that the Przybytkowski
Affidavit belonged to the “no evidence”
exception by analogy, the Minister was unable to provide any support for that
proposition. Quite the contrary, there is no indication whatsoever that the IAD
decided any portion of this case on a complete lack of evidence.
[23]
The Przybytkowski Affidavit therefore does not fit
with any of the clearly established exceptions for admitting extrinsic,
additional materials upon judicial review. The affidavit simply flags a number
of evidentiary factors that were argued by counsel for the Minister during
proceedings before the IAD, and not ultimately retained by the decision-maker.
I thus conclude that the Minister’s affidavit is inadmissible, and it has not
been considered for the purpose of this judgment.
B.
The IAD Decision is reasonable
[24]
Turning to the merits of the judicial review, the
Minister argues that it was unreasonable for the IAD to conclude that the
intended adoption of Mr. Bilal was not being entered into primarily for
immigration purposes. In particular, the Minister singles out three key topics
for which evidence was allegedly ignored or misconstrued by the IAD. First, the
Minister claims that the IAD erred in assessing the nature and extent of the
relationship between Ms. Sohail and Mr. Bilal. Second, the Minister submits that
the IAD erred by minimizing the importance of the true reasons for which Mr.
Bilal desired to live in Canada, namely to study and obtain a better education.
Third, the Minister contends that the IAD misinterpreted the ties between Mr.
Bilal and his biological parents. The Minister further pleads that, in reaching
its decision, the IAD erroneously considered humanitarian and compassionate
[H&C] grounds in contravention of section 65 of the IRPA barring it from
doing so.
[25]
I am not persuaded that any of the alleged
errors identified by the Minister justify the intervention of the Court or
allow me to conclude that the IAD Decision does not fall within the range of
possible, acceptable outcomes. In my view, the Minister has failed to present
any convincing evidence or argument to support its allegations that the IAD
made erroneous findings of fact or disregarded evidence available to it. In
fact, at the hearing before this Court, counsel for the Minister acknowledged
that the IAD did not omit to consider any particular piece of evidence.
[26]
Even though the Minister may have concerns about
the IAD’s conclusions, it is clear that the IAD did not ignore the evidence singled
by the Minister. The IAD was aware of the circumstances in which Mr. Bilal had
been “given” to Ms. Sohail by her sister at the
time of his birth. The IAD was also mindful of the fact that Mr. Bilal
continued to live with his biological parents, save for weekends and holidays
spent with Ms. Sohail and her family. The IAD also referred to the fact that
the adoption would offer a better future for Mr. Bilal and would give him the
opportunity to obtain an education in Canada. The IAD further noted the safety
concerns in Pakistan and Mr. Bilal’s continued contact with his biological
parents. In sum, every detail with which the Minister takes issue was considered
by the IAD. But, having reviewed the totality of the evidence, the IAD
concluded that a bond had been established between Ms. Sohail and Mr. Bilal,
and that the factual situation before it did not have the attributes of an adoption
entered into primarily for immigration purposes. I would add that the Minister
has failed to provide any probing example to support its allegation that the
IAD improperly considered H&C grounds in reaching its decision.
[27]
The Minister essentially signals portions of the
evidence cited by the IAD which could have been interpreted in its favour and
points to the IAD “minimizing” the importance of
many factors which, in the eyes of the Minister, called for a different
conclusion. The arguments put forward by the Minister simply express its
disagreement with the IAD’s assessment of the evidence and ask the Court to
prefer its own alternative reading to that of the IAD. In doing so, the
Minister is inviting the Court to reweigh the evidence before the IAD and to
substitute itself for the decision-maker. Unfortunately for the Minister, this
is not an appeal but a judicial review. In conducting a reasonableness review
of factual findings, it is not the role of the Court to reassess the relative
importance given by the decision-maker to any relevant factor or piece of
evidence.
[28]
Even if I were left with doubt regarding some
factual determinations made by the IAD, my role in a judicial review is not to
make the findings that I might have made had I been in the shoes of the IAD.
Rather, it is to determine whether the determinations of the IAD were
reasonable and fall within the range of possible, acceptable outcomes (Dunsmuir
at para 47). Needless to say, these principles governing how reviewing
courts ought to approach judicial reviews are the same for all applicants, and they
are no different when the Minister happens to be in that position.
[29]
Many questions that come before administrative
tribunals such as the IAD do not lend themselves to one specific, particular
result. Instead, they often give rise to a number of possible, reasonable
conclusions. But reasonableness is a deferential standard and tribunals “have a margin of appreciation within the range of acceptable
and rational solutions” (Dunsmuir at para 47; Newfoundland Nurses at para 13). In this
case, the IAD heard from Ms. Sohail and her husband directly at the hearing and
it reviewed the evidence before reaching the conclusion that the adoption of
Mr. Bilal was not primarily for acquiring status or privilege under the IRPA. I
am satisfied that the testimonies of Ms. Sohail and her husband could
reasonably support the existence of the emotional bond with Mr. Bilal noted by
the IAD. I do not have to decide whether another interpretation might have been
possible. It suffices to conclude that the reasoning process of the IAD is not
flawed and flows from the evidence.
[30]
A recurring theme in the jurisprudence
respecting citizenship matters such as applications for spousal or adoption
sponsorship is that each case is fact-specific and must be determined on its
own merits. In the case of Ms. Sohail, the IAD did not ignore the evidence. It rather
found it sufficient to demonstrate that the adoption of Mr. Bilal was not primarily
for immigration purposes. I accept that the provisions dealing with immigration
sponsorship by family members in the IRPA and the Regulations reflect both the
objective of family reunification, and the intention of the legislator to
prevent adoptions made for immigration purposes. In order for nephews and
nieces who are not orphans (as is the case for Mr. Bilal) to qualify as members
of the family class through adoption, the applicants must demonstrate that the
primary purpose of their intended adoption is not gaining immigration
advantages. The burden lied with Ms. Sohail and the IAD, as an expert tribunal,
was satisfied that she had met it on a balance of probabilities.
[31]
It is also well recognized that a decision-maker is presumed to have weighed and considered all the
evidence presented to it unless the contrary is shown (Kanagendren v Canada (Citizenship and Immigration), 2015 FCA 86 at para 36; Florea v Canada
(Minister of Employment and Immigration), [1993]
FCJ No 598 (FCA) at para 1). The Minister did not give any example of evidence that was not assessed by the
IAD, or of evidence that squarely contradicted the findings made by the
decision-maker (Cepeda-Gutierrez v Canada (Minister
of Citizenship and Immigration), [1998] FCJ No 1425 (QL) [Cepeda-Gutierrez]
at para 17). Moreover, a failure to mention a
particular piece of evidence or to address each issue
and every argument that a party raises does not mean
that it was ignored or that there was a reviewable error (Newfoundland Nurses at para 16). It is only when an administrative
tribunal is silent on evidence clearly pointing to an opposite conclusion that
the Court may intervene and infer that the tribunal overlooked the
contradictory evidence when making its finding of fact (Ozdemir v Canada
(Minister of Citizenship and Immigration), 2001 FCA 331 at paras 9-10; Cepeda-Gutierrez
at paras 16-17). This is not the case here.
[32]
The IAD is a specialized expert body with a
broad mandate to decide complex immigration and citizenship matters and, as
such, it is owed a high degree of deference. This is particularly true on issues
like the genuineness of an adoption, as these are highly factual determinations
at the heart of the IAD’s expertise and functions.
[33]
Reasons are to be read
as a whole, in conjunction with the record (Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 53; Construction Labour Relations
v Driver Iron Inc, 2012 SCC 65 at para 3). A
judicial review is not a “line-by-line treasure hunt
for error” (Communications,
Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper,
Ltd, 2013 SCC 34 at para 54). The Court should instead approach the reasons
with a view to “understanding,
not to puzzling over every possible inconsistency, ambiguity or infelicity of
expression” (Canada (Minister of Citizenship and
Immigration) v Ragupathy, 2006 FCA 151 at para 15). When read as a whole, the IAD Decision shows that the panel properly
assessed all the necessary factors and provided an analysis of the evidence
presented. The intervention of this Court is not warranted.
IV.
Conclusion
[34]
For the reasons set forth above, this
application for judicial review is dismissed. Although the Minister might have
preferred a different decision, I am satisfied that the IAD considered all the
evidence before it and adequately explained why the contemplated adoption of
Mr. Bilal was not primarily for immigration purposes. The IAD Decision is
reasonable and provides sufficient reasons. It is intelligible, defensible and
supported by the evidence, and I find that it meets the standard of
reasonableness. The concerns voiced by the Minister were all before the IAD,
they were not ignored and were all dealt with and considered; but they were
just not retained by the IAD.
[35]
Neither party has proposed a question of general
importance to certify. I agree there is none.
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