Date: 20180720

Docket: T-127-18

Citation: 2018 FC 770

Ottawa, Ontario, July 20, 2018

PRESENT:  The Honourable Madam Justice Strickland

JUDGMENT AND REASONS

[1]  This is an application for judicial review of a decision of an immigration counsellor (“Officer”), dated September 11, 2017, refusing the application for Canadian citizenship of the Applicant’s adopted child based on section 5.1(3)(b) of the Citizenship Act, RSC 1985, c. C-29 (“Citizenship Act” or “Act”).

Background

[2]  The Applicant is a Canadian citizen. She applied for citizenship for her adopted child, Akeen Patrick Diah (“Akeen”), who is her biological grandson. Akeen was born in Jamaica on April 21, 1995. He was abandoned by his biological parents when he was 4 months old and has resided with and been in the care of his great-aunt, the Applicant’s sister, Icilda (Daisy) Douglas, since that time. In 2007, the Applicant started the process to adopt Akeen. In 2012, she submitted an application for Canadian citizenship for him, as a person adopted by a Canadian citizen. By an Adoption Order dated March 20, 2013, the May Pen Resident Magistrate Court in Clarendon, Jamaica authorized the adoption. In a letter dated September 1, 2015, the Canadian High Commission in Jamaica was advised by the Quebec Secrétariat à l’adoption international that Akeen’s adoption meets the statutory requirements of Quebec law with respect to adoption. On February 16, 2016, the Respondent rejected the citizenship application under section 5.1(1) of the Act. The Applicant was granted leave in an application for leave and judicial review and, before the judicial review was heard by this Court, the Respondent consented to set aside the decision and to have the application re-determined by a different officer.

[3]  On February 17, 2017, Akeen was interviewed in person by an immigration officer at the High Commission of Canada in Jamaica and the Applicant was interviewed by telephone by the same officer. On June 21, 2017, the interviewing officer recommended that the application be refused under section 5.1(3) (b) of the Act. On June 26, 2017, the Officer refused the application. A refusal letter was sent to the Applicant on September 11, 2017.

Decision under review

[4]  The Officer refused the application for citizenship on the basis that she was not satisfied that the adoption was not entered into primarily for the purpose of acquiring status or privilege in Canada, pursuant to section 5.1(3) of the Act. In the refusal letter, the Officer stated:

I have reviewed the file, all submissions made by the applicant and the grandmother/adoptive mother in Canada and the interviewing officer’s notes. Given the history and nature of the relationship between the applicant and his natural grandmother, the frequency of their communication and of her visits to Jamaica, the timelines of and reasons given for the legal adoption, I agree with the interviewing officer’s finding that it is more likely than not that the legal adoption was entered into primarily for the purpose [sic] allowing the applicant to move to and live in Canada.

[5]  The officer who interviewed both Akeen and the Applicant on February 17, 2017 recorded notes in the Global Case Management System (“GCMS”) on the same day and on June 21, 2017. In the June notes, the interviewing officer recommended to the delegated decision-maker, the Officer, that the application be denied. The notes state that Akeen was approximately 21 years old at the time of the interview and is in regular contact with the Applicant. However, the interviewing officer found that Akeen was unable to provide satisfactory details about the Applicant, including: her age, her occupation, and the timeline of events related to the adoption. The officer acknowledged evidence of money transfers from the Applicant to other individuals, including Akeen’s cousins, but found there was insufficient evidence that the majority of these transfers were for Akeen himself. The officer noted that Akeen explained he had been receiving money directly from the Applicant since 2015. The officer found this was consistent with the role of the Applicant as a financial support for Akeen, his great-aunt and other family members in Jamaica for the last several years. The officer held that there was insufficient evidence of phone records to indicate daily contact between the Applicant and Akeen. The officer also noted that Akeen’s biological parents are alive but appear to be tenuously established in Jamaica, which supported the finding that Akeen would acquire a comparatively enhanced status in Canada. The interviewing officer acknowledged that Akeen works as a chef, attends courses and has a social and familial network in Jamaica. The officer was of the opinion that as Akeen and Icilda Douglas advance in age, there is a greater impetus for Akeen to obtain Canadian citizenship through adoption in order to acquire privileges in Canada to which he would not otherwise have access in Jamaica. During his interview, Akeen explained he wished to go to Canada to work as a chef and he stated the environment in Jamaica is violent and not safe. The officer found that by his own admission, Akeen is seeking opportunity and safety in Canada.

[6]  In the June 2017 GCMS notes the interviewing officer acknowledged the Applicant had submitted documents from Quebec regarding the adoption process, dated in 2007 and 2008, but determined she did not provide a satisfactory explanation for why the adoption process was not initiated when Akeen was a baby and it was apparent that his biological parents would not be actively involved in his life. During the interview, the Applicant stated she wished to send Akeen to college. The officer found this to constitute an educational privilege and noted that through citizenship Akeen would be granted access to a quality of education that he may not have in Jamaica. The interviewing officer concluded that she was not satisfied that the adoption was not entered into to provide Akeen with access and privileges to Canada’s social, educational, health and other public services, benefits and/or facilities. She recommended that the application be refused.

Issues and Standard of Review

[7]  The Applicant submitted three issues for review: whether the Officer committed a reviewable error in the assessment of the evidence; breached procedural fairness by relying on an unidentified interviewer’s notes that were dated June 21, 2017, more than four (4) months after the said interviews; and, whether the decision is reasonable. In written submissions, the Applicant addressed the three issues together.

[8]  In my view, the sole issue for determination is whether the decision was reasonable.

[9]  The parties agree, as do I, that the applicable standard of review for findings of mixed fact and law with respect to decisions made under section 5.1 of the Citizenship Act is reasonableness (Mclawrence v Canada (Citizenship and Immigration), 2015 FC 867 at para 14 (“Mclawrence”); Young v Canada (Citizenship and Immigration), 2015 FC 316 at paras 15-17 (“Young”); Satnarine v Canada (Citizenship and Immigration), 2012 FC 91 at para 9; Rai v Canada (Citizenship and Immigration), 2014 FC 77 at para 17). In judicial review, reasonableness is concerned with the existence of justification, transparency and intelligibility within the decision-making process and with whether 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 at para 47 (“Dunsmuir”)). Further, deference is owed to the expertise of the immigration officer making decisions under s 5.1 of the Citizenship Act (Canada (Citizenship and Immigration) v Davis, 2015 FCA 41 at para 9 (“Davis”)).

[10]  The Applicant submits that the Officer breached procedural fairness by arriving at a conclusion without providing adequate reasons, which is an error reviewable on the standard of correctness (Shpati v Canada (Public Safety and Emergency Preparedness), 2010 FC 1046 at para 28. However, the Supreme Court of Canada has held that the adequacy of reasons is not a stand-alone basis for quashing a decision. If the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 13 -17.  I would add that issues concerning the adequacy of reasons goes to the reasonableness of the decision (Patanguli v Canada (Minister of Citizenship and Immigration), 2015 FCA 291 at para 19).

Preliminary Issue #1 – Respondent’s motion for an extension of time

[11]  By a motion filed on June 15, 2018, the Respondent sought an extension of time to allow Immigration, Refugees and Citizenship Canada (“IRCC”) to file a supplementary certified copy of the record (“Supplemental CTR”). Although a certified tribunal record (“CTR”)  had, pursuant to Rule 17 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, been filed on May 22, 2018, due to an administrative error it was incomplete. In its motion the Respondent explained the normal process for applications seeking citizenship of a foreign adoptee. Part 1 of an application is concerned with gathering information about the adoptive parent and confirming that the person is a Canadian citizen. In this case, Part 1 was processed by the Case Processing Centre in Sydney, Nova Scotia. When Part 1 has been approved, a letter is sent to the applicant indicating when and where to submit Part 2 of the application. By a letter dated December 10, 2012, the Applicant was instructed to send Part 2 of her application to the Immigration Section of the High Commission of Canada in Kingston, Jamaica. The CTR filed on May 22, 2018 did not include documents held by this office, which is where most of the documents were submitted and where the decision under review was made. On June 5, 2018, when the error was noticed, the Supplemental CTR was sent to the parties and to the Registry of the Court. The Respondent submitted that it is in the interests of justice that the CTR include all of the documents that were before the decision-maker and argued that the elements of the test for obtaining an extension were met (Apotex Inc. v Canada (Health), 2012 FCA 322 at para 12; Canada (Attorney General) v Hennelly (1999), 244 NR 399 (FCA) at paras 3 and 4; Muneeswarakumar v Canada (Citizenship and Immigration), 2012 FC 446 at para 9). The Respondent requested its motion for an extension of time be granted and the Supplemental CTR be accepted for filing.

[12]  The Applicant opposed the motion on the basis that there is no supporting affidavit confirming the existence of the error or explaining how it occurred, thus, a reasonable explanation for the delay has not been provided.  Further, the Respondent did not speak to the second element of the test for an extension of time, that it has an arguable case. The Applicant also submitted that the Supplemental CTR is deficient as it does not contain the home study report attached as Exhibit 8 of the Applicant’s affidavit filed in this application for Leave and Judicial Review, it is prejudicial as it contains notes of the officer who originally denied the application in February 2016, and it will only create confusion and delay.

[13]  While I agree with the Applicant that an affidavit explaining the error should have been submitted, in these circumstances this is not fatal.  And, as the Respondent notes, the deficiency of the initial CTR was apparent from the Applicant’s Record which contains documents that should have been found in the initial CTR, but were not. Further, the Respondent has filed a memorandum of argument which, in my view, is sufficient to demonstrate both an arguable case and its intention to pursue the matter. To the extent that the Supplemental CTR is still deficient, the significance of this can be addressed by the Applicant in its submissions on the merits of her application for judicial review. I also fail to see how the fact that the Supplemental CTR contains the GCMS notes of the officer who originally denied the application in 2016 is prejudicial to the Applicant, as that decision is not under review. Nor do I see how having a complete record can cause confusion. The Court is aware that the 2016 decision was, on consent, returned to be re-determined by a different decision-maker. Most significantly, the Court must have before it the full record that was before the person who made the decision now under review so the Court can assess the reasonableness of that decision. Accordingly, the Respondent’s motion for an extension of time is granted and the Supplemental CTR shall be filed.

[14]  While the Applicant also makes submissions as to the admissibility and use of the interviewing officer’s GCMS notes, in my view these are of no merit. And, in any event, I need not address those submissions as the determinative issue is the unreasonableness of the decision.

Was the decision reasonable?

[15]  The relevant legislation is s 5.1(3) of the Citizenship Act, which reads as follows:

[16]  In this case, the Applicant is a Canadian citizen and by letter dated September 1, 2015, the Canadian High Commission in Jamaica was advised by the Quebec Secrétariat à l’adoption international that Akeen’s adoption met the requirements of Quebec law with respect to adoption.  The determinative issue before the Officer was s 5.1(3)(b).

[17]  That provision has been addressed by the Federal Court of Appeal in Canada (Citizenship and Immigration) v Dufour, 2014 FCA 81 (“Dufour”). There, Justice Gauthier stated the following:

[52]  Under paragraph 5.1(3)(b) of the Act, the Minister may determine that an otherwise legal adoption was entered into primarily for the purpose of acquiring a status or privilege in relation to immigration or citizenship. However, the officers acting on his behalf must give appropriate weight to judicial decisions, if any. When an adoption has been approved by the Court of Québec, as it was in this case, it must be proved that the court judgment was obtained by fraud against the legal system. This is a very high standard that has clearly not been met in the present case.

[53]  ...... 

[54]  Normally, adopting a child abroad necessarily involves obtaining a status or privilege in relation to immigration or citizenship because cases in which the Canadian parent adopts with no intention of returning to live in Canada with the new child immediately or in the medium term are rare.

[55]  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. They are adoptions where appearances do not reflect the reality. They are schemes to circumvent the requirements of the Act or of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.  

[56  If there is a true intention to create a parent-child relationship and this relationship is in the best interests of the minor child, it cannot normally be concluded that the adoption is entered into primarily to create a status or a privilege in relation to immigration or citizenship.

[57]  Even in cases where there is no Canadian court judgment certifying the lawfulness of the adoption, there must be clear evidence that it is an adoption of convenience. This is why the relevant circumstances to be considered under section 11.10 of the CP14 manual (a non-exhaustive list) state that a decision-maker must take into account a variety of factors existing at the time of the adoption, as well as the situation of the child before and after the adoption, even though the intention with which we are concerned is that of the parties at the time of the adoption. As the CP14 manual states, it is all these factors taken together that allow a decision-maker to determine whether the parties had a particular intention contrary to paragraph 5.1(3)(b) at the time of the adoption. It is surprising to note that the officer in this case never refers to these criteria in her analysis or in her affidavit, and that section 11.10 of the CP14 manual is not included in the excerpts from manuals filed in the appeal book. [...]

[58]  It is rare to have direct evidence that one of the parties intended to defraud the other or that both parties primarily intended to acquire a status or privilege in relation to immigration on the basis of a family relationship that does not reflect the reality of their situation. One can certainly imagine such scenarios, for example, where one or both parties were members of or used a network for providing foreign nationals with a status or privilege in relation to immigration or citizenship.

[59]  In the vast majority of cases, the administrative decision-maker must infer malicious intent from all the relevant circumstances.

[60]  To infer intent, the decision- maker must first have duly proven facts on which to base his or her reasoning or logical deductions. Intent cannot be inferred from a fact that is nothing more than one among many theories because such an approach amounts to pure speculation rather than logical reasoning.

[61]  Therefore, to find that paragraph 5.1(3)(b) has been violated, the officer could not speculate on the intentions of the respondent and Mr. Dufour.

[Emphasis in original]

[18]  In Young, Justice Rennie reviewed the jurisprudence concerning a citizenship officer’s finding that an adoption was entered into primarily to acquire a benefit. Justice Rennie explained that the bar for finding that an adoption was entered into primarily for acquiring a benefit of immigration or citizenship is high and that 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 (at para 18,citing Dufour at para 57).

[19]  In the present case, I would first note that the Respondent, in its submissions, makes reference to the Citizenship and Immigration Canada, CP 14 – Grant of Canadian Citizenship for Persons Adopted by Canadian Citizens (“CP 14 Manual”). This manual deals with all aspects of adoption, including identifying an adoption which was entered into primarily for the purpose of acquiring a status or privilege. In that regard, it sets out in s 11.11 a list considerations that an officer may wish to take into account when making their decision. However, neither the Officer nor the interviewing officer made reference to the CP 14 Manual. As stated by Justice Gauthier in Dufour, this omission is surprising.

[20]  The Applicant submits that the Officer committed a number of errors in her assessment of the evidence which formed the basis of her finding that the adoption was entered into primarily for the purpose of acquiring a status or privilege in relation to immigration or citizenship. One of these errors was the interviewing officer’s finding that because Akeen’s biological parents were “tenuously established in Jamaica”, he would acquire a comparatively enhanced status/privilege in Canada. The Applicant argues this is unreasonable because Akeen’s biological parents have not supported him since he was a baby and it is an irrelevant factor in an analysis under section 5.1(3)(b) of the Act. Further, the interviewing officer failed to consider that the Applicant is Akeen’s adoptive mother by a judgment of the Jamaican Court.

[21]  The CP 14 Manual, although not referenced by either officer, states that a decision-maker may consider the whereabouts of the adopted person’s biological parents and the nature of their personal circumstances. In this case, the evidence that Akeen’s biological parents abandoned him, have not supported him since he was four months old and that he has had little or no contact with them, was not questioned by the Officer. In my view, while this may have been a reasonable factor to consider, it is difficult to see how being abandoned at 4 months old serves to establish that the adoption was entered into primarily for the purpose of acquiring status or a privilege. It is true that orphaned or abandoned children will, in many circumstances, benefit from the enhanced status/privilege Canadian citizenship would afford, but this alone cannot support a finding that the adoption was entered into primarily for the purpose of acquiring this enhanced status (see Dufour at para 54). In other words, while enhanced status or privilege may be the effect of the abandonment and subsequent adoption, the evidence does not support that Akeen was abandoned and then adopted to acquire status.  In my view, the Officer’s finding on this point was unreasonable.

[22]  The Applicant also submits that the Officer ignored two home study reports, which made favourable recommendations for the adoption. The first report, dated August 5, 2015, and prepared by the Child Development Agency in Jamaica, confirms that Akeen’s biological parents did not play an active role in his life, which is why he lives with his paternal great aunt, and his grandmother, the Applicant, provides financial support. The report explains the Applicant’s decision to adopt Akeen was because her sister was advancing in age and deteriorating in health and it also states that Akeen loves his grandmother, talks to her very often, and would like to be with her. The second report, dated November 24, 2007, was prepared by the Batshaw Youth and Family Services, a division of Child and Family Services, Quebec. This assessment also notes the motivation for the adoption is because Icilda Douglas is not in good health and not in a position to care for the children (Akeen and his sister). The report recognizes that although the Applicant has been aware of Akeen’s situation for a long time, she wanted to wait to have things in order before adopting him, including owning her own home. To put this in context, I note that the report indicates that the Applicant was earning $31,104 per year at that time, worked Monday to Friday from 6:00 a.m. to 2 p.m. and then at a second job from 3:30 p.m. to 11 p.m. She planned to give up her second job after the adoption but in the meantime was working as many hours as she could. The report states that the Applicant was anxious to adopt the children but wanted to have suitable accommodation for them and confirms that she had been financially supporting them for many years. It notes the Applicant also supports them emotionally and speaks to Akeen and his sister on a regular basis. The report is detailed and positive.

[23]  This Court has previously found that it is an error not to consider a relevant home study report (Young at para 26). In Mclawrence, Justice Shore held it was an error to not consider social workers reports, which provided 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 (at paras 26 – 27). And while a decision-maker is assumed to have considered all of the evidence, where there is relevant evidence which runs contrary to the decision-maker’s finding on a central issue, there is an obligation to analyse such evidence and explain why it has not been accepted or why other evidence is preferred (Jardine v Canada (MCI), 2011 FC 565 at para 21; Mclawrence at para 28).

[24]  In my view, the two home study reports provide evidence which is contrary to the Officer’s findings. For example, the Officer drew a negative inference because of the timelines of and reasons given for the legal adoption. The Batshaw Report explains that the Applicant did not begin the adoption process earlier (before 2007) because she wanted to be in a position to suitably accommodate Akeen’s arrival in Canada. In my view, it was unreasonable for the Officer to not consider this explanation, or explain why it was not accepted, when concluding that the Applicant did not provide a satisfactory explanation as to why the adoption was not finalized earlier. I would also note that during the interview, the officer told the Applicant that one of the officer’s concerns was that the adoption was only recently finalized. The Applicant responded that the adoption was started in 2007 but only granted in 2013 because the process took a very long time. The GCMS notes indicate that after the interview the Applicant submitted documents from the province of Quebec, dated 2007 and 2008, regarding the initiation of the adoption to address those concerns. It is true that the Applicant did not provide an explanation as to why such adoption steps were not initiated when Akeen was a baby and it was apparent that his parents would not be involved in his life or finically support him. However, in my view it is significant to note that this was not the concern put to the Applicant during the interview which pertained to the delay in finalizing the adoption not initiating it. Moreover, the concern was answered by the home studies.

[25]  The Officer also does not seem to have considered, when addressing the number of visits the Applicant made to Jamaica, her relatively modest income and the fact that she was sending a significant portion of this to support Akeen and her sister who was caring for him (see Young at paras 28-30).

[26]  In that regard, the Officer’s assessment of the financial support provided by the Applicant, which speaks to the history and nature of the relationship, was also unreasonable. The interviewing officer acknowledged the money transfers from the Applicant to individuals such as cousins but found, given the multiple recipients, that there was insufficient evidence that the majority of these were for Akeen himself. The Applicant submitted as a part of her application a statement concerning the financial aid she provided to Akeen. In it she stated that because her sister is elderly she usually sent money to other family members to pick up, give it to her sister to provide for her and Akeen, and described these arrangements. During the Applicant’s interview, she again explained that she previously sent money for Akeen through cousins, Sonia Skinner and then Rochelle Johnson, until they each left Jamaica. The Applicant stated that once Akeen was 18 years old, she started sending money directly to him. The interviewing officer pointed out what she viewed as a discrepancy in the evidence, being a money transfer to Patrick Stephan Diah, Akeen’s father, on June 13, 2011 despite the Applicant saying that she had no contact with him for years. The Applicant replied that she had sent the money in an effort to get in touch with Patrick, her son, but he had not picked it up.

[27]  The documentary evidence supports the Applicant’s statements. The Moneygram and Western Union printouts show that the vast majority of money transfers sent by the Applicant were received by Sonia Skinner between May 2009 and April 2010 and by Rochelle Johnson between June 2010 and January 2014. Although there was one money transfer to Patrick Stephen Diah on June 13, 2011 it was marked “cancelled” in contrast to all of the other transfers which were marked as “picked up”. It is true that there were occasional transfers to Icilda Douglas and others, but the majority of the transfers were as the Applicant indicated and, in her interview, the Applicant stated that her sister would use the transferred money to support Akeen. Further, the Moneygram printed records from October 2016 to February 2017 are all to Akeen, and are made approximately once a month. During Akeen’s interview he confirmed that Sonia and Rochelle were cousins, the Applicant had sent money via Sonia until she left Jamaica and then via Rochelle until she too left. After that the Applicant sent money to others, who Akeen did not know, until she began sending it directly to him.

[28]  Given this explanation and evidence, which the interviewing officer did not dispute, it is difficult to see how she arrived at her conclusion that, due to the multiple recipients, there was insufficient evidence that the majority of the transfers were for Akeen. There is no evidence in the record that the Applicant was supporting family members, other than Akeen and her sister, with whom Akeen resided and cared for him. The home studies also confirmed the Applicant’s financial support to Akeen. In my view, the existence of multiple recipients of funds sent by the Applicant was explained and it is not clear evidence of an adoption of convenience. And while an officer may, in the absence of evidence, infer intention, any inference must be based on duly proven facts. Intent cannot be inferred from a fact that is nothing more than a theory as such an approach amounts to pure speculation (Dufour at para 60; Young at paras 20- 22). In my view, the officer’s inference that because the Applicant sent funds via multiple recipients this negated that she was supporting Akeen, and instead was supporting multiple family members, is based on speculation.

[29]  Finally, I find that it was also unreasonable for the interviewing officer to draw negative inferences from the Applicant’s statement that she wanted to send Akeen to college. The fact that an adoptive parent wishes to give a child a better life, including in terms of education, cannot, in and of itself, support a finding that the primary intention of adoption was to evade immigration laws (Young at paras 24-25). An adoptive parent’s intent of providing a better quality of life for an adopted child has been held to be a legitimate goal (Mclawrence at para 20; Smith v Canada (Citizenship and Immigration), 2014 FC 929 at para 65; Young at para 24). Again, like the findings above, this evidence cannot support a determination that the primary intention of the adoption was to evade immigration laws.

[30]  These unreasonable findings, taken together, require that the application for judicial review be granted.

JUDGMENT

THIS COURT’S JUDGMENT is that

1. The Respondent’s Motion for an extension of the time to allow the filing of the June 15, 2018 supplemental certified tribunal record is granted and this document shall be filed.

The application for judicial review is allowed.

3.  There shall be no order as to costs.

4.  No question of general importance for certification was proposed or arises.

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: