Docket: T-863-11
Citation: 2012 FC 201
Ottawa, Ontario, February 10, 2012
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
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TRAN, TAM THANH
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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 JUDGMENT AND
JUDGMENT
I. Introduction
and Background
[1]
The
Applicant, Tam Thanh Tran, and his wife, Kim Nguyen were born in Vietnam and are
Canadian citizens. By letter dated March 22, 2010, the Applicant was advised
by Officer Patricia Brown (the Officer) at the Canadian High Commission in
Singapore (CHCS) the application for Canadian citizenship he made for his
adopted son, My, was refused. My was born deaf and mute in a refugee camp in Hong Kong in 1995.
His father was killed in a motorcycle accident in 2007 in Vietnam; his
birth mother, Kim Loan, lives in Vietnam. My was formally
adopted in November 2008 upon receiving the consent of the Vietnamese
authorities. My is now 17 years old and has been living since late 2008 or
early 2009 in an orphanage in Ho Chi Minh City (HCMC), formerly Saigon.
[2]
The
Officer gave the following reasons for the refusal:
Based on the results of our investigation, I have determined that
Nguyen Quoc My does not meet the requirements of section 5.1(1)(d)
of the Citizenship Act because:
- there are significant concerns over the credibility of
information in your application, especially your explanation of the genesis
of the relationship between yourself/your wife and the adopted child;
- the adoption process was begun in 2006 while the
adopted child was living with his biological parents and his elder brother.
Information on file shows he had always lived with his biological
family without any evident problems; and,
- statements made by you and information on the
file demonstrate that the primary reason for the adoption was to obtain a
cochlear implant and other medical/social services in Canada for the adopted child.
[Emphasis added]
[3]
Relying
on section 5.1(1)(d) of the Citizenship Act (the Act), the Officer was
not satisfied the adoption of My was not entered into primarily for the purpose
of acquiring a status or privilege in relation to immigration or citizenship.
Specifically, the Officer was of the view the status or privilege in Canada
sought for My, is the benefit of medical and social services available in
Canada and, in particular, to obtain a cochlear implant to give him a chance to
be able to hear and speak and live a normal life.
[4]
Section
5.1 of the Citizenship Act, RSC, 1985, c C-29 reads:
Adoptees
— minors
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.
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Cas
de personnes adoptées — mineurs
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.
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[5]
The
central question which arises in this judicial review application is how the
Canadian officials at the CHCS and at the Canadian Consulate in HCMC (CCHCMC)
carried out their investigation into the Applicant’s application for My’s Canadian
Citizenship filed in December 2008 and, in particular, the fairness
aspect of that investigation and the reasonableness of the findings of fact
flowing from it.
II. Overview
[6]
The
documentary evidence in the Respondent’s Record (RR) establishes the following
facts:
a.
Between
1988 and 1993, Kim Nguyen, then a 15-year-old orphan, lived in a refugee camp
in Hong Kong.
b.
It
was there that she met My’s future birth parents. They took care and
looked after her. She felt indebted to them for what they did for her in the
refugee camp.
c.
In
1993, Kim Nguyen left the camp in Hong Kong to live in a refugee camp in
the Philippines for a year.
In 1994, she immigrated to Canada with her husband whom
she divorced in Canada a few years later. As noted, My was born in 1995
in the refugee camp in Hong Kong. Kim Nguyen married the Applicant in Canada in December
2002.
d.
The
couple traveled to Vietnam in 2003 to celebrate their marriage. Kim
Nguyen re-connected with My’s birth parents. It was then that they met My
for the first time. They thought about adopting him because there was no
school for children with special needs in that area in the north of the country
where the family lived.
e.
My's
parents were not warm to the idea of My being adopted. Despite this fact, the
Applicant and his wife, in 2006, retained the services of a duly
accredited Canadian International Adoption Service. A Homestudy was prepared
by Martha Maslen who met the couple on a number of occasions. That study was
filed with authorities in Ontario (whose concurrence was
required). As will be seen, the Homestudy contained a number of statements as
to when Kim Nguyen first met My and whether she immigrate to Canada alone
in 1994. The Homestudy states she met My at the refugee camp and traveled to Canada alone. CHCS
had on file a letter from a friend who also indicated Kim Nguyen cared for My
at the refugee camp (the friend’s letter). In any event, no formal steps were
taken to adopt My in 2006 because of his family’s opposition.
f.
Matters
changed dramatically in 2007 when My's father was killed in a motorcycle accident
leaving My’s mother, Kim Loan, who was not working at the time, to look after
My, his elder brother and her husband's elderly mother. Times were difficult.
My was placed in a school for the deaf in Hanoi but traveled
home on weekends. My’s adoption was raised once again by the Applicant and his
wife; Kim Loan agreed. Papers were processed in 2008. The Vietnamese
authorities agreed to the adoption which was formalized in November 28, 2008
in a traditional ceremony of transfer at which My's mother and adoptive parents
were present. My's application for Canadian citizenship was filed with Citizenship
and Immigration Canada (CIC) shortly thereafter.
g.
Shortly
after the adoption My was transferred to an orphanage in HCMC; he has been
there ever since. That orphanage is operated by nuns, one of whom is Kim
Nguyen’s aunt.
h.
The
record shows the Applicant and his wife have paid for all of My's expenses
which now included, for the first time, a private tutor teaching him sign
language enabling him to read and write. The Applicant and his wife are in
constant communication with their adopted son. He has no contact with his birth
mother. Kim Nguyen stayed a number of months with him in 2009 and recently 5 weeks
in 2011.
III. CIC’s
Investigation
[7]
The
details of the investigation, which included a CBSA anti-fraud officer, are
revealed in the Certified Tribunal Record (CTR) which essentially contains the
CAIPS notes of officials at the CHCS and the CCHCMC.
[8]
It
also contains the interaction between those officials with the Applicant and
also with Martha Maslen, the adoption facilitator and author of the Homestudy.
[9]
The
CTR shows:
a.
File
opening in 2008 at CHCS followed up with a December 10, 2008 letter to
the Applicant asking for background information including details on the
parent-child relationship.
b.
The
response from Mr. Tran, was summarized by CHCS as showing Kim Nguyen met My's
parents at the refugee camp in Hong Kong; they found out in 2003 My was deaf
and mute; their offer to adopt him was refused; learned that My's father
was killed in an accident and felt strongly that they must care for him; stated
that they want to provide him with the cochlear implant to enable him to
hear and speak and live a normal life. The CAIPS notes also acknowledge
having a copy of the Homestudy prepared by Martha Maslen.
c.
A
preliminary analysis by the Officer, dated January 29, 2009, (see RR, p
8) says: “at this point am investigating the connection between the adoptive
mother and subject. There is a letter on file from a friend that states the
adoptive mother took care of subject (My) in the refugee camp and became very
attached to him.” [Emphasis added] The Officer wrote after examining Kim
Nguyen’s immigration file to Canada “This claim is untrue” noting that she had
immigrated to Canada with her husband in 1994 from a refugee camp in the
Philippines and was born
in 1995 in Hong Kong. She said she asked the prospective parents “to provide full
information on where and how they came to know the subject [My]”. [Emphasis
added]
d.
The
receipt by CHCS of an e-mail dated February 12, 2009, from Mr. Tran, the
Applicant stating: (a) his wife met My's birth parents in 1989 at the refugee
camp in Hong Kong; (b) that he and his wife first met My in June 2003
when he was 8 years old; (c) his wife entered Canada on March 5, 1994; (d) that
his wife came to Canada alone.
e.
The
Officer wrote that an interview is required to assess the parent-child
relationship stating special arrangements need to be put in place because My is
deaf and mute.
f.
Interview
of My conducted on October 7, 2009 by Mr. Ford at CCHCMC. Interview
aborted and inconclusive because My cannot communicate. He does not know
enough sigh language.
g.
Note
to file by Mr. Ford dated December 14, 2009 indicates verifications by the
Ministry Intelligence Unit (MIU) conclude that My is at the orphanage in HCMC
full-time; he no longer has contact with his mother and brother; adoptive
mother is calling frequently the orphanage to check on My's condition. Mr.
Ford states: “There is no evidence of this adoption being undertaken for the
purpose of gaining status in Canada or that there is any
concern of undue gain.”… “I have no further concerns with this
adoption. Everything seems to be in order.” He ends his note by making a
reference to the letter of support. He indicates: “This letter is from a
family friend and while specious, its veracity has not been upheld by adoptive
parents so this is a non-issue.” [Emphasis added]
[10]
That
same day, however, upon a review of the Homestudy and before finalization Mr.
Ford wrote: “it appears that contradictory information that was of concern
before was also given to the social worker (Martha Maslen) by the adoptive
parents, not by a friend. This warrants further examination.” [Emphasis
added]
[11]
Mr.
Ford sent a note to Martha Maslen asking her specific questions:
a.
Can
you confirm that the Applicant and his wife informed you that Ms. Nguyen
cared for My when she was at the refugee camp?; and
b.
Can
you confirm that they informed you that the child they intend to adopt lives
with a family in Vietnam and whether she has
details about what family he is living with?
[12]
A
few days later, Martha Maslen responded in writing to Mr. Ford's inquiry.
She confirmed Kim Nguyen had told her she had taken care of My at a refugee
camp in Hong Kong and that while she had no way to corroborate this information
said that Kim Nguyen’s emotional attachment to My was evident and it appeared
to her this attachment began when she looked after him at the refugee camp. She
also confirmed to Mr. Ford that at the time of her last assessment in 2008,
My was living with a family in Vietnam, after his father's death in 2007, that
his mother had made arrangements to have him attend a school for deaf in Hanoi
and return to his home village on weekends. She noted the mother was having an
extremely difficult time in looking after him both financially and emotionally.
She could not confirm if My's mother continued to care for him.
[13]
In
a note to file dated January 18, 2010, Mr. Ford, based on Martha
Maslen’s letter, noted: “appears prospective parents deliberately
misrepresented information during Homestudy as prospective mother was
landed before My was born and concerns remain valid.” Mr. Ford also
expressed a concern that all the information was now being channelled through
the adoptive parents or from the orphanage from their relatives. He suggested
as next steps; (1) a phone interview with adoptive parents; (2) a possible site
visit to My's biological mother; and (3) a verification of My’s father’s death
certificate.
[14]
Mr.
Ford then had a telephone interview on January 27, 2010, with the
Applicant (see RR p 13). In summary, according to Mr. Ford, he put to Mr.
Tran the friend’s letter and that Mr. Tran told him that he was not sure his
wife looked after My in the refugee camp “because the timing does not seem
to work; the kid was born in 1995 right?” He told Mr. Ford, Dung Thi Pham
(whose letter had been sent to CIC and had said Ms. Nguyen had taken care of My
at the camp) was indeed a family friend of his wife but his letter may have
been badly translated (the Court could not find in the CTR a copy of that
letter).
[15]
Mr.
Ford expressed his concerns to Mr. Tran because he had confirmation from
Martha Maslen she was told the Applicant’s wife had taken care of My at the
refugee camp. Mr. Ford also noted Mr. Tran told him My had been moved to
the orphanage in HCMC because he was not accepted in his home village. Mr.
Ford expressed concern about the lack of information on the biological mother
and how My was moved to a new orphanage under the care of his aunt. He
remarked that at the time of the Homestudy My was at an orphanage near Halong Bay and traveled
weekends to see his mother and this suddenly stopped.
[16]
Mr.
Ford records Mr. Tran’s responses he does not know if his wife took care of My
at the camp but she was close to his birth parents and that he was moved from Halong
Bay because My was under his care and was not accepted in Halong Bay.
[17]
Mr.
Ford records the next steps as being confirmation from the Applicant's wife in
a written statement explaining why she told Martha Maslen she had cared for My
at the camp. He also recommended a site visit by MIU with My’s biological
mother.
[18]
On
February 11, 2010, Mr. Ford received another e-mail from Martha Maslen
in which she apologized for the mistake she made in advising him that the
Applicant's wife had taken care of My at the camp. This was not correct since
she had left the camp before My was born. It was My’s parents who took care of
Kim Nguyen at the refugee camp. Mr. Ford notes that Martha Maslen’s
information was contradictory. He concluded her information was not credible
because she had obviously been in touch with Mr. Tran and his wife.
[19]
The
CTR also contains a Site Visit Report from MIU Officer Jack Avery dated
November 27, 2009 (RR p 76-77). On that date, he visited My's orphanage in
HCMC and was greeted by two nuns. Sister Khiem told him that My was brought
there by his adoptive mother in September/October of 2008. Note that the
adoption approval from the Vietnam authorities is dated
October 10, 2008, the start of the school year. Sister Khiem indicated his
adoptive mother is caring for him and that his biological mother never calls to
check on him and that My always asked about his adoptive mother. He also met Sister
Marie Nqoc Lan, Kim Nguyen’s distant aunt.
[20]
It
should also be noted that Mr. Avery also stated that the letter from Dung Thi
Phan made a false statement regarding Kim Nguyen’s relationship with My stating
that they met at the camp when My was young. Mr. Avery concluded: “This is not
true.”
[21]
The
investigation closes with a note from Jack Avery recorded on January 25,
2011 on his on-site visit on January 19, 2011 to Kim Loan’s village
to interview her. He was accompanied by a colleague who spoke Vietnamese. His
report may be summarized as follows:
a.
Upon
arrival, his colleague dialled Kim Loan’s cell phone number which was answered
by a person who denied she was Kim Loan saying Kim Loan had lent her the cell
phone as well as the use of her house being away for a few months.
b.
They
met a person at a café who was a good friend of Kim Loan’s and knew the whole
family's history particularly the fact My was in an orphanage in HCMC and the
older sibling was studying at a university in Hanoi. Kim Loan had given this
person a spare key to the house, had gone to Hanoi that day and
would return the next day. This person provided directions to Kim’s house.
c.
Kim
Loan’s house was seen and described as a two-story structure with a very nice
garden on a good portion of land (by Vietnamese standards). He noted according
to the woman at the café, Kim Loan receives rental income from either
this property or another one.
[22]
Mr.
Avery concluded “from the history on file and Loan’s deceit in denying her
identity, it seems apparent that she does not want to be interviewed.”
IV. The
Officer's Detailed Reasons
[23]
The
Computer Assisted Immigration Processing System (CAIPS) notes (Respondent’s
Record, page 12) contain the Officer’s detailed reasoning. She framed the issue
as:
“The concerns on this file is whether
the adoption was entered into primarily for the purpose of acquiring a status
or privilege under the Act in Canada or whether the primary motivation of the adoption was to
establish a parent-child relationship.”
[Emphasis added]
[24]
She
identified the issues of concern as:
a.
Lack
of credibility of information provided by the adoptive mother (or adoptive
parents) to the author of the Homestudy. The Homestudy indicated the proposed
adopted mother cared for My since his birth in Hong Kong in 1995 whereas her
immigration papers showed she had immigrated to Canada in 1994. Moreover,
the fact Mr. Tran was not sure where his wife (whom he married in Canada in 2002) first
met My was a matter of concern. She concluded on the point that “when/how
the adoptive parents met My had never been answered in a credible way by the
adoptive parents”. In addition, the Homestudy indicated the adoptive mother
had only been married once while Kim Nguyen’s immigration papers showed
she arrived in Canada in 1994 with her first husband. To compound
matters, Mr. Tran, in an e-mail, advised the Canadian authorities in February
2009, that Kim Nguyen had come to Canada alone. The Officer
asks the question “why is her previous marriage being hidden?” In her view, there
was no apparent reason for the author of the Homestudy to misrepresent such information.
Acknowledging the information in the Homestudy was not verifiable by the Visa
Officer she added “these two clear misrepresentations on easily verifiable
issues lead me to believe there was a serious issue of the credibility of the
information provided by the adoptive mother or father, in the Homestudy.”
b.
The
circumstances of the adoption were a concern. The Officer noted My and
his brother were living with their parents when the adoption began in 2006.
She notes “the adoption was being discussed in 2006 while the child was
still living with his entire biological family before the child's father was killed
in a traffic accident in May 2007.” She concluded there was “no apparent
reason for My to be adopted at the time except to gain status in Canada and then
access to the Canadian medical system and social services available to the deaf.”
c.
From
the information on file (Nov 08 forms), the Applicant always lived with his
birth family and was enrolled at school. The Officer refers to an
interview in October 2009 with a Sister Nqoc at the orphanage in HCMC who indicated
My had come to the orphanage from another orphanage in February 2009. Yet, Sister
Khiem, during a site visit in November 2009 stated My came to the orphanage in
September 2008. The Officer noted the adoption documents show that My was
living at the home address at the time the adoption was finalized on November
27, 2008 as do the school transcripts for 2007/08 also show his living with his
birth mother.
d.
“An
attempt to interview the birth mother Kim Loan was not successful.” Jack
Avery from either CHCS or the CCHCMC accompanied by a colleague who spoke Vietnamese
had gone to the birth mother’s village to interview her. The Applicant (the
proposed adoptive father) had provided Kim Loan’s cell phone number. When her
cell phone number was dialled, the person who answered claimed to be a friend
who “had been given the phone and who provided incorrect information about the
whereabouts of the mother.” Also, a visit to the home “revealed the family is
comfortable economically by Vietnamese standards and the My’s brother is
currently studying at the University in Hanoi.”
e.
There
are several references on file regarding obtaining a cochlear implant and also
a reference to a contact with the teacher of the deaf at the Ottawa Carleton District School with respect
to support services for the hearing impaired once the child is in Canada. The Officer
quotes an e-mail from the Applicant to her on December 19, 2008 stating:
“Whether My becomes my son or not is secondary. The only thing I care about is
to use the cochlear implant to give him a chance to be able to hear and speak
and live a normal life.” The Officer concludes this “does not indicate bona
fide adoption.” It indicates that the goal is to come to Canada to obtain a
cochlear implant and other services. The Officer then adds that “the adoptive
parents could obtain a cochlear implant plus the device from within the region
(the Bangkok Hospital) for approximately $44,000.00 CND and, in
particular, since 2009 at the HCMC Ear, Nose and Throat Hospital.” [Emphasis
added]
[25]
The
Officer concludes by stating:
Given the information from our review
interviews and investigations above, it is my reasonable belief that this
adoption was entered into primarily for the purpose of acquiring status under
the Citizenship Act. Therefore, I must refuse the application per section
5.1(1)(d) of the Citizenship Act. Refusal letter issued today.
[Emphasis added]
V. Analysis
[26]
This
decision raises a number of important issues. Section 5.1 of the Act is new
legislation in force on August 17, 2009. It provides a new direct route
to adopted children acquiring Canadian Citizenship. The jurisprudence is
limited; Justice Richard Mosley’s decision in Jardine v Canada (Citizenship
and Immigration), 2011 FC 565 (Jardine) makes the following points:
a.
A
decision under section 5.1 of the Act is largely fact-driven and, therefore,
reviewed on a standard of reasonableness as explained by the Supreme Court of
Canada in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
b.
Section
5.1 of the Act sets out four criteria. Those criteria are conjunctive, that
is, all of them must be met in order for an adoption to qualify under the Act.
c.
The
determining factor in the case before him was an evidentiary one; whether the
officer, who had refused the citizenship application, properly considered the
evidence submitted by the applicants. Justice Mosley so found and the judicial
review application was granted.
VI. The
Argument
(a) For
the Applicant
[27]
In
the case before me, counsel for Mr. Tran raises issues related to ignoring the
evidence and drawing unreasonable inferences from the evidence. Moreover, he
says the Officer failed to consider and properly apply the previous
jurisprudence on adoptions of convenience under the previous regime which were
“codified” in Citizenship and Immigration Canada’s Operating Guidelines (CIC –
CP 14 Adoption) (the Guidelines) for use by decision makers. During oral
argument counsel for the Applicant raised issues of fairness in the conduct of
the investigation and, in particular, the failure to confront Kim Nguyen on information
she was said to have provided or obtained during the investigation from
external sources.
[28]
Counsel
for the Applicant’s submissions were:
a.
The
Officer’s finding that there were significant concerns about the credibility of
the application is flawed because it was based on the following errors: (i)
ignoring the evidence, particularly from the author of the Homestudy, who
admitted, because of the language barrier with Kim Nguyen, she misunderstood
who took care of who at the refugee camp. My’s parents took care of Kim Nguyen
at the camp and Kim helped take care of My’s brother who was a baby when she
arrived at the camp; (ii) the fact that Jack Avery in a note to file found as a
fact that the adoptive parents first met My in 2003 all of which was
corroborated by evidence from Children’s Bridge, the adoptive agency (see RR p
63); (iii) the fact the Applicant stated the timing of information that
triggered the Officer to doubt did not fit. The burden of this evidence was
that Kim did not take care of My in 1995 because she was not in the camp at
that time and My was not born when she left the camp. All of the substantial
evidence is to this effect. Moreover, the friend’s letter was discredited.
b.
The
investigation was based on incomplete information derived extraneously and never
put to the Applicant or his wife, for example, inferences from the visit to Kim
Loan’s village by Jack Avery and the research concluded by the Officer on the
availability of a cochlear implant in the Region.
c.
It
was Kim Nguyen’s information which was at issue but she was never questioned
herself.
d.
The
Officer’s conclusion the adoption process began in 2006 while My was
living with his parents (which is true) ignores the change in circumstances
i.e. the fact My’s father died in 2007. It also ignores the fact in 2006 My’s
parents had refused to put My for adoption with the result that these
efforts were discontinued and only re-started after 2007 when conditions
were such Kim Loan consented to My’s adoption, which was consumed in November
2008.
[29]
More
important, counsel for the Applicant argues the Officer failed to follow the
Guidelines by not considering My’s best interests and the genuiness of the
parent-child relationship, particularly the fact that his relationship with Kim
Loan has been completely severed since the adoption. It was conceded My’s
adoption was authorized by the authorities in Vietnam.
[30]
Finally,
counsel for the Applicant argued the Officer made no analysis of why she came
to the view that the adoption was entered into primarily for convenience over
all other factors.
(b) For
the Respondent
[31]
Counsel
for the Respondent made these points:
a.
He
recognized the Officer had made no determination that the adoption was in My’s
best interest or that the parent-child relationship was considered.
b.
He
also recognized the sole determination the Officer made was on section
5.1(1)(d) of the Act and was based on the evidence which was reasonably
considered, and was sufficient to support the decision she made, particularly,
if proper account is taken of the reasons expressed by the Applicant himself
that what was important was for My to obtain a cochlear implant in order to
enable My to hear and communicate better through sign language.
c.
He
argued the other points raised by counsel for the Applicant were either
irrelevant or not determinative.
VII. Standard of
Review
[32]
Both
counsel agreed that decisions of this nature must be reviewed on a standard of
reasonableness because such decision is fact driven. What that means was
explained by the Supreme Court of Canada decision in Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 47:
Reasonableness is a deferential standard
animated by the principle that underlies the development of the two previous
standards of reasonableness: certain questions that come before administrative
tribunals do not lend themselves to one specific, particular result.
Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[33]
Reference
should also be made that the Court’s decision in Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 where attention was
drawn by Justice Binnie at paragraphs 3 and 46 to section 18.1(4)(d) of the Federal
Courts Act (R.S.C., 1985, c. F-7) which reads:
18.1
Grounds of review
(4) The Federal Court may grant
relief under subsection (3) if it is satisfied that the federal board,
commission or other tribunal
…
(d) based
its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it;
…
|
18.1
Motifs
(4) Les mesures prévues au
paragraphe;
…
d) a
rendu une décision ou une ordonnance fondée sur une conclusion de fait
erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des
éléments dont il dispose;
…
|
[34]
Ignoring
the evidence or misunderstanding that evidence is a ground for review.
VIII. Conclusions
[35]
This
judicial review application must be allowed for the following reasons.
[36]
First
and foremost, the Officer failed to follow the Minister’s Guidelines in
assessing the application. These Guidelines are set out in Chapter 14 of the
CIC’s Operations Manual. I appreciate the Guidelines are not regulations and
are not binding but their importance was signalled in the Supreme Court of
Canada’s decision in Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 (Baker) where Justice L’Heureux-Dubé
wrote at paragraph 22 the following about Ministerial guidelines:
…The guidelines are a useful indicator of what constitutes a
reasonable interpretation of the power conferred by the section, and the
fact that this decision was contrary to their directives is of great help in
assessing whether the decision was an unreasonable exercise of the H & C
power.
[Emphasis added]
[37]
Baker was
commented upon by that Court in Suresh v Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at paragraph
36 where the guidelines were referred to as “a set of published instructions to
immigration officers.”
[38]
The
Guidelines in this case are clear; (i) they identify the program objectives
for the adoption of minors (which is the case here) wherein the adoption must
be carried out respecting the best interest of the child; (ii) the
adoption must have a genuine parent-child relationship that permanently
severs the legal ties with the child’s biological parents; (iii) the adoption
must be in accordance with the laws where the adoption took place and the laws
of the adoptive parents’ place of residence; and (iv) must not be an adoption
of convenience.
[39]
The
Guidelines spell out indicators to be considered for the four criteria in
section 5.1 of the Act with particular attention to be focused on the best
interest of the child, recognizing that there may be a “multitude of
factors that may infringe on the child’s best interest”.
[40]
In
terms of a genuine parent-child relationship the Guidelines emphasize the
purpose of the adoption should be to establish such relationship and not for
the purpose of assisting that child to gain admission to Canada or to
Canadian Citizenship. This factor of the Guidelines say this assessment
should be “in conjunction with the criteria governing the assessment of
adoptions of convenience”.
[41]
The
Guidelines also spell out the factors which identify an adoption of
convenience. They are:
·
the
circumstances of the adoption;
·
the
whereabouts of the child's biological parents and the nature of their personal
circumstances;
·
who
was included in the child's household before and after the adoption (e.g. did
the child continue to live in the same household as the biological parents even
after the adoption);
·
Whether
the adoptive parents are supplying financial and emotional support;
·
the
motivation or reasons for the adoption of the child that the biological parents
and the adopting parents give;
·
the
authority and suasion of the adopting parent(s) over the adopted child;
·
arrangements
and actions taken by the adoptive parent(s) as it relates to caring, providing,
and planning for the adopted child;
·
supplanting
of the authority of the child's biological parent(s) by that of the adopting
parent(s);
·
the
relationship between the adopted child and the biological parent(s) before the
adoption;
·
the
relationship between the adopted child and the biological parent(s) after the
adoption;
·
the
treatment of the adopted child versus that of biological children by the
adopting parent(s);
·
the
prevailing social and legal practices governing adoption in the child's home
country;
·
in
a case where the adoption took place a long time ago, evidence that the child
has lived with the adoptive parents and that they cared for the child.
[42]
Moreover,
paragraph 11 of the Guidelines say the following:
Factors to be considered
Sections 5.1, 5.2, and 5.3 of the
Citizenship Regulations provide a non-exhaustive list of factors to be
considered in determining whether the requirements of subsections 5.1(1) and
5.1(2) of the Act have been met. These factors are not requirements;
therefore, the presence or absence of any one or more of the factors would not
automatically result in the acceptance/refusal of a particular application for
a grant of citizenship under section 5.1 of the Act. Rather, these factors are
to be considered and weighed in each individual case, in order to assist
officers in deciding whether or not the requirements of subsection 5.1(1) and
5.1(2) of the Act have been met for the purpose of granting or refusing an
application for Canadian citizenship.
The factors set out in Regulations are
sufficiently precise so as to inform citizens who are contemplating adopting a
child from another country of the considerations which will guide an officer's
decision-making when assessing an application for citizenship made under
section 5.1 of the Act.
The list of non-compulsory factors also
allows officers the necessary flexibility to make appropriate decisions in a
wide range of cases under subsections 5.1(1) and 5.1(2) of the Act. Cases will
range from an adult who applies for citizenship after having been adopted at
birth to an infant who was recently adopted abroad by a Canadian citizen.
[Emphasis added]
[43]
It
is clear from the RR that the Officer did not follow the Guidelines. Counsel
for the Respondent acknowledged this fact. The Court must intervene because
the approach taken by the Officer led her not to weigh all of the evidence
before her but to concentrate on only one, thus failing to consider the
evidence as a whole.
[44]
In
my view the error identified above is determinative.
[45]
Having
said this, I agree with counsel for the Applicant the Officer ignored the
evidence or refused to take into account uncontroverted evidence which showed it
was impossible for My to have been cared for at the refugee camp in Hong
Kong. She also misconstrued the evidence in terms of when My’s adoption was in
play; she failed to assess the genuiness of the parent-child relationship and
she was unfair to the adoptive parents by taking into account external facts
derived from her research or that of other officials of CIC. As such, the
investigation was not a reasonable one in the circumstances. It is true the
Applicant may have said he wanted to have My fitted with a cochlear implant.
That single factor, in isolation, is not sufficient, in the circumstances of
this case, to enable the Officer to come to the conclusion she did. Again it
is an example of what is the fundamental problem in this case, namely,
concentration solely on the adoption of convenience factor in isolation to the
other relevant factors and failing to weigh them together to achieve what
Parliament intended.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this judicial review application is granted with
costs. The Officer’s decision under review is quashed and the application for
My’s citizenship is returned for reconsideration as soon as practicable by a
different officer in accordance with these reasons.
“François
Lemieux”