Date:
20130115
Docket:
T-662-12
Citation:
2013 FC 36
Ottawa, Ontario,
January 15, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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RASPER INNOCENT
ATUTORNU
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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
[1]
This
is an application for judicial review of a decision of an Immigration Officer
dated March 9, 2012 denying an application for Canadian citizenship for a child
adopted by a Canadian citizen. This application is granted.
Facts
[2]
This
application concerns Believe Nyuimedi Atutornu, an 18 year old girl and Ghana national. The applicant is her uncle. He was born in Ghana and left the country in
1998 to study in Belgium. He became a Canadian citizen in 2006.
[3]
Believe
was born in Ghana on August 6, 1994. Her biological parents are Daniel
Atutornu, the applicant’s brother, and Dorothy Adanuvor. Daniel Atutornu
initially denied paternity and Dorothy Adanuvor was not able to care for
Believe. Therefore, in 1998 the applicant and his wife adopted Believe in
accordance with the village custom. After the applicant left Ghana, Believe, then two years old, lived with the applicant’s wife and mother. In 2001,
the applicant’s wife also left Ghana and Believe continued to live with her
grandmother.
[4]
In
2009, the applicant returned to Ghana on the occasion of his mother’s death.
At this time, he formally adopted Believe. The applicant obtained an interim
adoption order on October 9, 2009 from a Circuit Court in Ghana. The order stated that Believe had been adopted for an interim period of two years
and thereafter absolutely if no objection was raised.
[5]
The
applicant also began the process of obtaining Canadian citizenship for Believe.
To this end, he provided two long form birth certificates. The certificate
dated October 20, 2009, after the adoption order, provides that the applicant
and his wife are Believe’s parents. The Registrar of Births and Deaths
certified it to be a genuine copy.
[6]
The
earlier certificate dated September 5, 2009 provides that Daniel Atutornu and
Dorothy Adanuvor are Believe’s parents. The Registrar of Births and Deaths
indicated, by checking a box, that this birth certificate “is a fraudulent
copy, as the particulars differ from the particulars in the register.”
[7]
The
Immigration Officer sent the applicant a procedural fairness letter dated
November 29, 2011, inviting the applicant to provide additional evidence by
January 29, 2012. The Officer also explained that the interim adoption order
was not sufficient to prove the adoption.
[8]
In
response, the applicant expressed his willingness to provide a DNA test which
would establish that Believe was his niece and asked for a two month extension
of time. The Immigration Officer did not respond.
[9]
The
applicant nevertheless obtained DNA tests which demonstrated that Daniel
Atutornu and Dorothy Adanuvor are Believe’s biological parents. The applicant
also obtained a final adoption order. This evidence was not considered by the
Immigration Officer as he did not provide the applicant with an extension of
time.
Decision
Under Review
[10]
In
a decision dated March 9, 2012, the Immigration Officer denied the application
for Canadian citizenship pursuant to subsection 5.1(1) of the Citizenship
Act (R.S., 1985, c. C-29), finding that:
(1)
The
adoption has not created a genuine relationship of parent and child as the
biological parental rights have not been severed. The Immigration Officer
noted that the applicant had only provided an interim adoption order, rather
than a final order.
(2)
The
adoption was not in accordance with the laws of the place where the adoption
took place, namely Ghana. Again, the Immigration Officer referred to the lack
of a final court order. Additionally, the Immigration Officer stated that the
court in Ghana relied on a fraudulent document, the birth certificate showing
the child’s biological parents.
(3)
The
Immigration Officer was not satisfied that the adoption was not entered into
primarily for the purpose of acquiring immigration status, because he
considered the evidence on the file to be unreliable.
[11]
The
Immigration Officer stated that he could not be sure of the true relationship
between the persons involved in the adoption. On this issue, the Immigration
Officer noted that the applicant’s mother had applied for permanent residence
in Canada but did not list Daniel Atutornu as her son in that application. The
Immigration Officer also stated that Believe’s biological father had not denied
paternity when being interviewed by another immigration officer.
[12]
The
Officer considered the applicant’s intention to provide DNA testing. The
Immigration Officer concluded that this evidence would not directly address the
fraudulent birth certificate. He faulted the applicant for not providing
Believe’s short form birth certificate which would have been issued soon after
birth. Her biological mother had said that she could not locate it.
Issue
[13]
The
determinative issue is whether the Immigration Officer complied with the
requirements of procedural fairness. This issue is reviewed on the standard of
correctness. I have also considered the Immigration Officer’s treatment of the
evidence which is assessed against a standard of reasonableness.
Analysis
[14]
The
Immigration Officer did not provide the applicant with a fair opportunity to
respond to his concerns.
[15]
The
Immigration Officer doubted the true relationship between Believe, her
biological parents, her grandmother and her adoptive parents. The DNA evidence
would have been probative in addressing these concerns. Despite this, the
Officer stated that it would not directly address the issue of the “fraudulent”
birth certificate. This assessment of the evidence is unreasonable. The DNA
evidence would have been relevant to the question as to the accuracy of the
content of the birth certificate.
[16]
The
short form birth certificate had been lost, hence DNA evidence was the only way
the applicant could address the Immigration Officer’s concerns. By refusing to
grant a modest extension of time, the Immigration Officer denied the applicant
a fair opportunity to respond.
[17]
I
have also concluded that the decision, per se, is unreasonable.
[18]
First,
with regards to the “fraudulent” birth certificate, the Registrar of Births and
Deaths indicated that the particulars differed from those on record. There is
an explanation on the face of the record which the Officer did not consider.
The birth certificate with the adoptive parents is dated after the court order
which transferred legal parenthood. The Registrar may have considered the
original birth certificate to be no longer valid, in light of the adoption
order. While the Court accepts, as a matter of principle, that official
documents originating from the foreign country are genuine and are accepted as
to the truth of their content, in these circumstances, the Officer had an
obligation to consider the explanation offered. This applies particularly
where, as here, the basis for the document being considered fraudulent was as a
result of a discrepancy in the registration details, not that the document
itself was a fraudulant copy. It was not reasonable for the Immigration
Officer to fixate on the word “fraudulent” without also considering the
Registrar’s explanation and the circumstances.
[19]
Second,
I do not see the significance of the fact that the applicant’s mother did not
list Daniel Atutornu as her son for her permanent residence application. While
this omission would certainly be relevant to the assessment of her own application,
it should not prevent Believe from obtaining citizenship. It is irrelevant
whether Daniel Atutornu and the applicant are actually brothers. What matters
is that Daniel Atutornu is Believe’s biological father and does not object to
the adoption. To conclude on this point, this ommission takes on less
significance if it is recognized that the applicant’s mother also failed to
list four other of her children, a point not noted by the Officer.
[20]
Finally,
it was unreasonable for the Officer to have predicated his decision on the fact
that the adoption order was, at that point, interim. As the interim order
indicated and as the Officer had been advised, the order became final on
October 9, 2011.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is granted and the
decision is set aside. The matter is remitted to a different immigration
officer for reconsideration.
"Donald J.
Rennie"
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