Date: 20071220
Docket: IMM-6025-06
Citation:
2007 FC 1345
Ottawa, Ontario, December 20, 2007
Present:
The Honourable Mr. Justice Lemieux
BETWEEN:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
KASSIM KANTE
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Minister of Citizenship and Immigration (the Minister), the applicant in this
judicial review, submits that a member of the Immigration Appeal Division (the
panel) erred in law on October 20, 2006, in allowing the appeal by Kassim Kante,
who has been a Canadian citizen since 2001. Mr. Kante had appealed the
decision dated November 10, 2005, by a visa officer at the Canadian Embassy in
Abidjan, Ivory Coast (the officer), refusing the applications for permanent
residence of Boubacar (19 years old) and Karamoko Kante (18 years old) (the
children), citizens of Mali, whom Mr. Kante had sponsored as dependent
children.
[2]
According
to counsel for the Minister, the panel failed to consider and apply section 121
of the Immigration and Refugee Protection Regulations (IRPR). He also
submits that Mr. Kante’s evidence was contradictory before the officer and the
panel.
[3]
Section
121 requires that a person who is a member of the family class who applies for
permanent residence must be a member of the family both at the time the
application is made (here, February 24, 2004) and at the time the application
is determined (here, November 10, 2005), in accordance with the Federal Court
of Appeal’s interpretation in Minister of Citizenship and Immigration v. Ali
Hamid, [2007] 2 F.C.R. 152.
[4]
Section 2
of the IRPR defines “dependent child” as a child who has one of the following
relationships with the parent: “is the biological child (section
2(a)(i)) or the adopted child (section 2(a)(ii)) and is in one of
the following situations . . . ”
Facts
[5]
Boubacar
and Karamoko Kante were born in Mali on October 13, 1987, and April 25, 1989,
respectively. Each of them filed an application for permanent residence in
Canada on July 28, 2003, (the applications). Both applications indicated that
Kassim Kante was their father and Mariam Kante was their mother.
[7]
In
February 2004,
the embassy in Abidjan received the applications for permanent residence
sponsored by Mr. Kante. Having heard nothing from the embassy, Mr. Kante sent
an e-mail to the embassy on February 7, 2005, stating [translation] “I applied for permanent
residence (in Canada) for my sons . . . ”
[8]
On
March 10, 2005,
the visa officer required that a genetic test be done because in
Mr. Kante’s 1994 application for permanent residence in Canada, he stated
that he was a widower and had no dependents. The DNA test was negative; Kassim
Kante is not the biological father of Boubacar and Karamoko Kante.
[9]
On
November 10, 2005,
the officer refused the applications for permanent residence visas in the
family class category on the ground that the children did not meet the
requirements for immigrating to Canada. He cited the definition of “dependent
child” and section 4 of the IRPR, which provides that for the purposes of these
Regulations, “a foreign national shall not be considered . . . an adopted child
of a person if the . . . adoption is not genuine and was
entered into
primarily for the purpose of
acquiring any status or privilege under the Act”. In his letter to the two children, the
officer added:
I have concluded that your relationship [with
Mr. Kante] is not genuine and was entered into primarily for the
purpose of acquiring a status or privilege under the Act: the DNA tests indicate
that you are not the biological children of the sponsor Kassim Kante. Therefore, for the purposes
of these Regulations, you are not considered to be members of the family of
your sponsor, Kassim Kante.
[10]
On
January 23, 2006, Mr. Kante launched an appeal to the Immigration Appeal
Division (IAD). Mr. Kassim Kante testified at the hearing before the panel on
September 28, 2006. He was represented by counsel.
[11]
In support
of his appeal, Mr. Kante filed written submissions on June 4, 2006, stating
that
(1)
The
children are truly the applicant’s legitimate children and he acknowledges them
as such, as appears from the children’s birth certificates, copies of which are
attached as an exhibit (P-1);
(2) The applicant has always supported the
children financially and emotionally from the day they were born until now.
Boubacar Kante and Karamoko Kante have not known any other father; the
applicant has always taken care of them and the whole family recognizes him as
their legitimate father. This is confirmed by the mother of the children in a
letter, which is attached as an exhibit ( P-2);
(3) The applicant is the sole financial
provider for the children . . .
(4) Malian culture recognizes that children
conceived during a prolonged absence of the husband are considered to be
children of the husband in question, i.e., in this case, the applicant, as
confirmed by Mr. Lamine Traore, PhD in his report, a copy of which is attached
(P-3);
(5) The children are members of the family
class under section 117(1) of the IRPR, since they meet the definition of
“dependent child” within the meaning of section 2(a)(ii) of the Regulations;
(6) The children are dependent children . . .
because they are the applicant’s adopted children, he is their sole
financial support and they are under 19 years old.
[13]
Mr. Kante,
through his counsel, replied. He maintained that the children fell within the
definition of “dependent children” because they were Mr. Kante’s adopted
children. He submitted that Mr. Kante was their sole financial provider, which
tended to prove that they were his adopted children. He suggested that Mr.
Kante did not believe it was necessary to mention that Boubacar and Karamoko
Kante were his adopted children [translation]
“because in the Malian culture, there is no difference between biological and
adopted children.” Counsel wrote that he intended to demonstrate [translation] “unequivocally and through
documentary evidence that they are, in fact, his adopted children.”
[14]
The panel
received the following exhibits in evidence; with the exception of exhibit P-1,
they were not before the officer:
(1) Exhibit P-1, notary Keita’s act dated
July 30, 2002, to the effect that Kassim Kante appeared before him and
acknowledged voluntarily and without duress that his son Boubacar Kante was the
child of Kassim Kante and Marian Kante. The notarial act stated that [translation] “A note of this will be
made in any document that requires it and, in particular, in the margin of the
birth certificate of the child who has been acknowledged.” The notary provided
the same attestation for Karamoko Kante.…
(2) Exhibit P-2, a letter dated April 24,
2006, from Ms. Kante to the panel.
(3) Exhibit P-3, the letter dated October 7,
2005, from Lamine Traore, PhD regarding the filiation of the Kante sons.
[15]
On
September 5, 2006,
counsel for Mr. Kante sent the panel an adoption document for the children from
the Tribunal de la Commune of Bamako dated August 22, 2006, determining the
adoption of the children in favour of Mr. Kante. I quote the relevant excerpts
from the decision of the Malian Tribunal:
[translation]
Having seen the evidence in
the file;
Having heard the applicant’s claims and
arguments;
Having heard the consent of
the parents;
Having heard the Ministère
Public ;
Whereas by an application in
writing dated August 14, 2006, Kassim KANTE, through his intermediary
Hamidou KONE, lawyer at the Bamako court, requested from this Tribunal civil an
adoption protection judgment or a simple adoption concerning the children
Boubacar KANTE and Karamoko KANTE, born October 13, 1987, and April
25, 1989, respectively, in Bamako, to Mamadou KANTE and Mariam
MANGARA;
Whereas at the hearing, the
applicant, represented by his lawyer, Hamidou KONE, explained that the
children in question are his nephews; that they have both lived with him
since they were quite young; that since he has been living for 15 years
in Canada where he has a regular and substantial income, he would like, by
means of this proceeding, to regularize this de facto adoption so that the
children can take greater advantage of the benefits inherent in this status.
The panel’s decision
[16]
The
panel’s reasons can be summarized as follows:
·
It
believed Mr. Kante; it found his testimony trustworthy. In its view,
Mr. Kante testified in a sincere manner, without hesitation, clearly and
with conviction;
·
It said
that Mr. Kante did not dispute that he is not the biological father of the
children, but that they are his dependent children and that under both
customary law and the applicable civil law in Mali, they are his adopted
children because they are his brother’s children, and, in accordance with
African tradition, he assumed responsibility for them when they were very
young.
·
It
believed that the judgment of the Malian Tribunal in August 2006 confirms
that the children are the legally adopted children of Mr. Mamadou Kante and
Mariam Kante under a state of fact and another legal tradition . . . customary
law in Mali;
·
It quoted
Dr. Traore’s opinion that a custom exists whereby a father must recognize the
children of his wife even if he is not their biological father. The panel
added:
Moreover, the appellant testified that in
accordance with tradition, he recognized the applicants as his children; their
natural father is his brother, but they were born during his marriage to his
wife. Consequently, they are his dependent children, and this relationship,
which was recognized by customary law, was confirmed by an instrument of
adoption, which I cited above, emerging from the other tradition, that of civil
law.
·
It cited
the argument of counsel for the Minister that since the children are not
Mr. Kante’s biological children, they cannot be “dependent children.” With
respect to the act of adoption, [translation]
“counsel for the respondent submits that the sponsorship application was not
submitted in the adoption category, and, consequently, I cannot take this
established fact into consideration.” The panel determined as follows:
[11] I would like to recall that on
June 6, 2006, a representative of the Minister, in a reply to the
appellant’s arguments, submitted to the panel that the applicants were not the
appellant’s natural children and that the appellant had not shown through
documentary evidence that they were his adopted children. Now, the respondent
is arguing that the fact that the applicants are the appellant’s adopted
children cannot be considered.
[12] If we look at the
Regulations, we see that the definition of “dependent children” does not
specify that dependent children are solely and exclusively natural children.
The term “dependent children” also covers adopted children. To say otherwise
would be to contradict the Regulations.
[13] That being said, the respondent
had the liberty in this case to produce a second opinion to oppose the expert
evidence I have from Dr. Traoré, Anthropologist, which confirms the adoption
under customary law, subsequently ratified by the civil court of Bamako.
[14] In this case, the appellant is
not in any way taking the respondent by surprise in stating that the applicants
are adopted children, since counsel for the respondent could have produced a
second opinion or contrary evidence to undermine the credibility or legal
effect of the adoption when the submissions were made in advance, prior to the
hearing. Nothing of the sort was done. The argument being made today, namely
that the appellant initially presented the applicants as his natural children
and is therefore precluded from including them now in his de novo appeal
as his adopted children, is not convincing. Such an approach seems to me not
only improper, but incorrect. The same may be said of the conclusion of the
visa officer, who determined that because the applicants were not the
appellant’s natural children, this relationship must have been entered into solely
for the purposes of immigration.
·
The panel
concluded:
[15] What we have to remember in this
case is that the applicants have been living with the appellant’s family for
several years and that they are his sons within the meaning of Malian customary
and civil law. Consequently, there is no doubt that the applicants are, on the
balance of the evidence, his dependent children, being his adopted children.
They are therefore members of the family class.
Analysis
(a) Standard of review
[17]
The
Minister’s submissions raise two issues:
(a) The panel erred in law in
failing to consider section 121 of the IRPR; and
(b) The finding that the applicant
was credible was contradicted by the totality of the evidence before the panel.
[18]
The first
issue is a question of law, and the standard of review is correctness according
to the Supreme Court of Canada in Pushpanathan v. Minister of Citizenship
and Immigration, [1998] 1 S.C.R. 982.
[19]
The second
issue must be determined against the standard set out in section 18.1(4)(d)
of the Federal Courts Act, which amounts to a patently unreasonable
decision.
(b) Conclusion
[20]
The
Minister acknowledges
(a) that the definition of
“dependent child” applies to both biological children and adopted children;
(b) that it is accurate to state that
paragraph 117(1)(b) of the IRPR provides that dependent children are members of
the family class;
(c) that the IAD hearing was a
hearing de novo.
[21]
In this
context, it is my view that the application of the Minister must be allowed for
the following reasons:
(1) Error
of law
[22]
Apparently,
counsel for the Minister raised section 121 of the IRPR before the panel. At
page 215 of the certified record, she stated as follows:
[translation]
The time that must be considered is the
time of the application. Section 121 . . . talks about the time when the
application is made. At the time the application was made, he asked to sponsor
children who were his biological children . . . Then, the date of the refusal
was November 10, 2005. The issue of adoption was never raised in the file. Only
quite recently, there was a judgment dated August 22, 2006, which is
post-refusal. Clearly, the file would have been dealt with quite differently
had it been known that there had been an adoption or that steps were being
taken for an adoption and that it was not for a biological child. There was no
previous mention of the adoption or of the customary rights that exist in the
country to establish that the children he assumed responsibility for were not
his biological children.
[23]
In my
view, the panel erred in law in failing to consider the application of section
121 of the IRPR as interpreted in the Hamid case, above.
(2) Error in fact
[24]
After
reading Mr. Kante’s testimony, it is my opinion that the panel’s finding that
he was
credible is not supported by the evidence. I cite the
following examples:
·
There is a
major contradiction between his testimony and what is stated in the decision of
the Tribunal de la Commune of Bamako. According to that court, the adoption
application stated that the children’s parents were Mr. Kante’s brother and
Mariam Mangara, not Mariam Kante, which explains why his lawyer in Mali advised
the Tribunal of Bamako that the children were his nephews;
·
There is a
significant contradiction between the applicant’s written submissions that he
had been responsible for the children from the time they were born and his
testimony that his brother supported them financially until they were ten years
old (stenographic notes, pages 196, 201, 202, 203);
·
The
reasons for the 2006 adoption application were not analyzed (stenographic notes
pages 207 to 212).
[25]
In my
view, the panel had an obligation to analyze these contradictions.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that this application for
judicial review is allowed, the decision of the panel is set aside and the
appeal by Kassim Kante is remitted to the Appeal Division for reconsideration
by a new panel. No question of importance was raised in this judgment.
“François
Lemieux”
____________________________
Judge
Certified
true translation
Mary
Jo Egan, LLB
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