Docket: T-955-11
Citation: 2011 FC 1485
Ottawa, Ontario, December 16,
2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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ANGELA TOLUWANI ADEJUMO AND OLUREMI
OMOLOLA ADEJUMO
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondents
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REASONS FOR ORDER AND ORDER
[1]
Angela
Toluwani Adejumo is now 10 years of age. She is a Nigerian citizen. Her
biological mother died when she was an infant and she has not lived with her
father since she was 18 months old. Her father’s sister, in other words her
aunt, Oluremi Omolola, a Canadian citizen, who is herself childless, adopted
her in full compliance of Nigerian law, and with the approval of the
authorities in British Columbia, where she lives. Angela’s application for
Canadian citizenship was turned down by an immigration counsellor at Citizenship
and Immigration Canada on the basis that the adoption did not create a genuine
relationship of parent and child, and was entered into primarily for the purpose
of acquiring status or privilege in relation to immigration or citizenship.
This is the judicial review of that decision.
[2]
It
used to be that such adoptions were dealt with under the Immigration and
Refugee Protection Act. The adopted child first had to obtain permanent
residence. However, the Citizenship Act was amended in December 2007 and
April 2009 to deal with such situations. Section 5.1(1) now provides:
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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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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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[3]
Thus,
it can be seen that the immigration counsellor’s decision was based on subsections
5.1(1)(b) and (d) of the Act.
ANGELA’S PLIGHT
[4]
Angela’s
father is a fairly well-to-do man by Nigerian standards. He spends most of this
time working in the oil fields in Saudi Arabia. Ever since his wife
died, young Angela has been living with his mother, her grandmother. However,
she has become old and frail and cannot really care for her. Mr. Adejumo
remarried, and has two children with his second wife. She is not particularly
enthusiastic about having young Angela living under her roof (Cinderella
anyone?).
[5]
Mr.
Adejumo’s sister, Oluremi Omolola, a Canadian citizen who is divorced and
childless, offered to adopt young Angela and treat her as her own. The adoption
was approved on a preliminary basis by both the Nigerian and Canadian
authorities in 2007 and granted in 2008. It is not contested that
notwithstanding that young Angela has been denied entry to Canada and that for
the most part Oluremi Omolola has been here, it is she who has made all
important decisions with respect to Angela’s schooling and medical care.
[6]
Nevertheless,
Angela’s father is not completely out of the picture. He has not, to use the
words of the counsellor, “truly severed his parent relationship to his
daughter”. He considers himself to be a father figure and capable of financially
and emotionally supporting her. The counsellor considered that a genuine parent-child
relationship continued, and that therefore a genuine parent-child relationship
could not be developed between aunt and niece as long as the natural father’s
relationship continued. There was no genuine parent-child relationship
established to the exclusion of the father and step-mother.
[7]
He
then concluded: “[b]ased on this information I am not satisfied that this
adoption was not entered into primarily for the purpose of acquiring a status or
privilege in relation to immigration or citizenship.”
[8]
Let
me immediately say that this second ground was outright speculation and falls
if the first ground falls.
ALL TIES OR LEGAL TIES
[9]
Section
5.1 of the Citizenship Regulations prescribes the manner in which an
application for citizenship under the Act is made. Certain factors are to be
considered in determining whether the requirements of the Act have been met. Section
5.1(3)(a)(ii) states:
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(3) The
following factors are to be considered in determining whether the requirements
of subsection 5.1(1) of the Act have been met in respect of the adoption of a
person referred to in subsection (1):
(a) whether, in the case of a person who has been adopted by
a citizen who resided in Canada at the time of the adoption,
…
(ii) the
pre-existing legal parent-child relationship was permanently severed by the
adoption;
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(3) Les
facteurs ci-après sont considérés pour établir si les conditions prévues au
paragraphe 5.1(1) de la Loi sont remplies à l’égard de l’adoption de la
personne visée au paragraphe (1) :
a) dans le cas où la personne a été adoptée par un
citoyen qui résidait au Canada au moment de l’adoption :
[…]
(ii) le fait que l’adoption a définitivement rompu tout lien de
filiation préexistant;
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[10]
Note
that the English version calls for consideration of the “pre-existing legal
parent-child relationship” while the French version speaks of “tout lien
de filiation préexistant”.
[11]
The
decision maker does not appear to have picked up on this difference, which I
raised at the hearing in Vancouver. I called for
supplemental memoranda.
[12]
The
parties, and the Court, agree that the first step is to establish whether there
is a common meaning between the two versions. It is clear in this case that
there is an ambiguity in that legal ties are not the same as all ties. Once the
common meaning has been established, the Court must then determine whether that
common meaning is consistent with Parliament’s intent (Medovarski v Canada (Minister of
Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539). Where one
version is broader than the other, the common meaning would favour the more
restricted or limited meaning (Schreiber v Canada (Attorney
General),
2002 SCC 62, [2002] 3 S.C.R. 269). Consequently, the more restrictive wording of
the English version must be favoured in this case. Therefore, it follows that the
regulation does not call upon the biological father to severe all social ties
with his daughter. It is clear under Nigerian law that he no longer has any
legal obligations towards her.
[13]
Although
not binding, Ministerial Guidelines may be helpful in informing decisions
rendered by visa officers (John v Canada (Minister of
Citizenship and Immigration), 2010 FC 85, [2010] FCJ No 100 (QL)). In
this case, the Minister’s Guidelines allow the biological father to maintain a
relationship with his child, particularly if that child has been adopted by a
relative. In Citizenship and Immigration Canada’s Operation Bulletin 183,
it is stated that while the natural parent should no longer be acting as a
parent, “an ongoing relationship and contact with the natural parent and
extended family may still occur.”
[14]
Either
the decision maker erred in law by not noting the distinction between the
English and French versions of the regulation, or failed to give adequate
reasons by not distinguishing Operation Bulletin 183. As the
bulletin would likely have led to a different conclusion, he was under a duty
to explain why it was not relied on (Cepeda-Gutierrez v Canada (Minister of Citizenship
and Immigration) (1998), 157 FTR 35, 83 ACWS (3d) 264 (FC)). Furthermore,
he did not take into account the decision of this Court in Rubio v Canada (Minister of
Citizenship and Immigration), 2011 FC 272, [2011] FCJ No 318 (QL).
[15]
Consequently,
I shall grant the judicial review and refer the matter back to another decision
maker for re-determination.
RIGHT OF APPEAL
[16]
The
general rule is that any final decision of this Court may be appealed to the
Federal Court of Appeal (Federal Courts Act, s 27). If this were still a
permanent residence issue under the Immigration and Refugee Protection Act,
an appeal would only lie if a serious question of general importance were certified
(IRPA, s 74(d)).
[17]
If
this were a judgment in appeal from a decision of a citizenship judge under
section 14(5) of the Citizenship Act, no appeal would lie therefrom (Citizenship
Act, s 14(6)). However, it is not, and is not covered by that exception. Consequently,
the Minister may appeal as of right.
COSTS
[18]
Costs
were not sought.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that
1.
This
application for judicial review is granted.
2.
The
decision, dated 29 March 2011, to refuse the application for Canadian
citizenship of Angela Toluwani Adejumo, visa file number A090200005, is quashed
and the matter is referred back to another decision maker for re-determination.
“Sean Harrington”
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