Date: 20010504
Docket: IMM-3850-00
Neutral citation: 2001 FCT 438
BETWEEN:
AMY AMERICA CASTRO JEREZANO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] The applicant, Amy Castro, seeks judicial review of the refusal of her application for permanent residence from within Canada under the humanitarian and compassionate provisions of subsection 114(2) of the Immigration Act.
[2] Ms. Amy Castro is eighteen years of age and a citizen of Honduras. Her natural mother is Reineria Castro, also a citizen of Honduras. She has had no relationship with her biological father for some thirteen years.
[3] In October 1987, Mrs. Reineria Castro began a conjugal relationship with Mr. Reinaldo Castro, who is now a Canadian citizen. On April 3, 1999, the couple was legally married.
[4] On September 15, 1999, Reinaldo Castro became the legal adoptive father of Amy Castro, pursuant to a court order issued in Ontario.
[5] In April 1998, shortly after she first entered Canada, Amy Castro filed an application for refugee status which was subsequently abandoned. At that time, Daniel and Maria Valladares agreed to be appointed as guardians of Amy Castro for the purposes of her application for refugee status. This was apparently done at the request of Mrs. Castro who had not yet returned to Canada.
[6] Since October 1998, Ms. Castro has been living in London, Ontario with her natural mother and adoptive father together with the couple's two younger children.
[7] The applicant claims to have a genuine relationship of parent and child with her adoptive father, Reinaldo Castro. However, without having interviewed any member of the Castro family, the immigration officer concluded "...that the timing of the adoption was made only to circumvent the Immigration Act and Regulations". It was on the basis of this finding, that he concluded that there were insufficient humanitarian and compassionate grounds to allow Amy Castro's application for permanent residence from within Canada under subsection 114(2).
[8] The applicant's application for permanent residence, sponsored by her adoptive father, was filed in October 1999. At some point in early 2000, Mrs. Castro was advised by a departmental official in London, Ontario that a letter would be forwarded if an interview were required with Mr. Castro and Amy Castro concerning the sponsored application. As indicated earlier, no such interview was ever arranged.
[9] In his notes to file, which explained his refusal to grant the application under subsection 114(2), the immigration officer makes two statements which suggest a misunderstanding of important facts.
[10] First, the immigration officer questioned the motives of Mr. Castro's adoption of Amy in view of the earlier appointment of Daniel and Maria Valladares as her guardians for the purposes of her refugee claim. The record discloses no custodial relationship of any significance between Amy Castro and the two guardians appointed for her refugee claim. There were no grounds to question the genuineness of Mr. Castro's adoption of Amy Castro on the basis of the earlier appointment of the two guardians.
[11] Second, the immigration noted Mrs. Castro's ongoing interest in her daughter's application for permanent residence. From this, he concluded that:
There appears to be no severing of the parental relationship, despite the adoption. I have to ask why, [Mrs. Castro] after submitting a letter to Immigration encouraging the granting of a guardianship order with [Daniel and Maria Valladares], she did not have the couple file adoption papers.
The events that unfolded with [Amy], that is the filing of her refugee claim in April 1998, the abandonment of the refugee claim on 26th October 1999, the earlier filing of intent to adopt by Reinaldo Castro September 1999 give cause to reflect.
[12] The immigration officer does not appear to have understood that the Castros had been living as a family unit in London, Ontario, since 1998. Nor does he appear to have appreciated that Mr. and Mrs. Castro had a conjugal relationship dating back to 1987. He confused the appointment of guardians for the refugee claim with the parental relationship between Amy Castro and her natural mother and adoptive father.
[13] These fundamental factual errors, which could have been avoided if the immigration officer had alerted the applicant of his concern and arranged for an interview, resulted in his misunderstanding and mischaracterization of the Castro family relationship.
[14] In these circumstances, the Court has no alternative but to set aside the immigration officer's reasons. The applicant's deponents in this proceeding were not cross-examined and the immigration officer filed no affidavit evidence. His negative inferences concerning the genuine relationship of parent and child between Amy Castro and Reinaldo Castro are, on the record before me, unsubstantiated. The immigration officer, in view of his significant concerns, should have provided an opportunity to the applicant to establish that the adoption was genuine.
[15] Accordingly, this application for judicial review will be granted and the matter referred for redetermination by a different immigration officer, in a manner consistent with these reasons. Neither party suggested the certification of a serious question.
"Allan Lutfy"
A.C.J.
Toronto, Ontario
May 4, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3850-00
STYLE OF CAUSE: AMY AMERICA CASTRO JEREZANO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, MAY 2, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: LUTFY A.C.J.
DATED: FRIDAY, MAY 4, 2001
APPEARANCES BY: Ms. Amy America Castro Jerezano
The Applicant on Her Own Behalf
Mr. Jeremiah A. Eastman
For the Respondent
SOLICITORS OF RECORD: Amy America Castro Jerezano
86 King Edward Avenue, Apt. 2
London, Ontario
N5Z 3S8
The Applicant on Her Own Behalf
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010504
Docket: IMM-3850-00
BETWEEN:
AMY AMERICA CASTRO JEREZANO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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