Docket: T-474-15
Citation:
2016 FC 41
Ottawa, Ontario, January 14, 2016
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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WING KAI LEUNG
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MAN KI LEUNG
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Applicants
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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]
The applicant, Wing Kai Leung [the principal
applicant] and his wife, Wan Chun Kon, ask the Court to set aside the decision
of the First Secretary (Immigration) at the Canadian Embassy in Beijing, China,
dated February 9, 2015, which rejected the application for Canadian citizenship
for the principal applicant’s daughter, Man Ki Leung [Man Ki], pursuant to
section 5.1 of the Citizenship Act, RSC, 1985, c C-29, as amended [the
Act].
I.
Facts
[2]
The principal applicant is a citizen of both Hong
Kong and Canada. His wife is a citizen of China. The principal applicant has
two children: a biological son and an adopted daughter. On September 18, 2012,
the principal applicant submitted an application for Canadian citizenship for a
person adopted by a Canadian citizen on behalf of his daughter, Man Ki. They
want to move to Canada and allege the citizenship application is to facilitate
that process.
[3]
The principal applicant alleges he and his wife
adopted their daughter after she was found abandoned as a baby outside of a
seniors’ home in Jiujiang, China in early 2007. The principal applicant’s wife learned
of the baby through her older sister’s friend, Chen Ai Zhen, who worked at the
seniors’ home. Initially, Man Ki stayed with the principal applicant’s wife’s older
sister in Jiujiang, but then moved to live with the principal applicant’s wife in
Shenzhen. At the time, the principal applicant was working in Hong Kong during
the weeks and returning to his family on the weekends.
[4]
After following the required procedures, the principal
applicant received a Republic of China Adoption Certificate dated July 12,
2010.
[5]
The facts regarding the officer’s verification
process of the above facts are recounted under the Decision heading.
II.
Decision
[6]
In a decision dated February 9, 2015, the
officer refused the principal applicant’s application.
[7]
The officer explained that the principal applicant,
his wife and their daughter were interviewed on April 18, 2014. The respondent
notes the interview raised some inconsistencies between the applicants and
deficiencies in the evidence, in particular: the principal applicant knew few
details about the adoption process; the principal applicant’s wife confused the
dates when her daughter was adopted; and the principal applicant and his wife
provided inconsistent evidence as to whether the child lived at the Child
Welfare Institute, as indicated on the application form.
[8]
In order to confirm the principal applicant’s
statements, the officer explained that the seniors’ home where the daughter was
allegedly found was contacted. The director of the home initially stated that
he worked at the home in 2007, that they house elderly people, not orphans, and
that he did not recall a baby girl being abandoned there in 2007. When asked
about Chen Ai Zhen, the director said he had never heard the name.
[9]
However, when the director learned the call was
for the purpose of the girl’s immigration status in Canada, he stated he was
actually not working at the home in 2007 and would speak to the previous director.
[10]
The previous director stated that he worked at
the home in 2007. He asked if the girl had the surname “Liang” and stated that
Chen Ai Zhen, a part-time nursing worker at the home in 2007, picked up the
girl in 2007. He noted the baby girl only stayed at the home for about a
half-day and that babies were often found abandoned outside the home, which is
located near a university. When asked who brought the girl away, he said it
seemed to be “a boss” in Shenzhen, who was from
Jiujiang. When asked how this person knew about the baby, the previous director
said he had something urgent and hung up.
[11]
The officer stated that his office contacted a consultant
working at the seniors’ home based on an internet search. The consultant said
she worked at the seniors’ home in 2007 and before hanging up, said there was
no abandoned girl in 2007.
[12]
The officer noted his concerns arising out of
the interview and telephone verifications, which related to whether: the
adoption was in the best interests of the child; the adoption was entered into
primarily for the purpose of acquiring a status or privilege in relation to
immigration or citizenship; the parent(s) of the child gave their free and
informed consent to the adoption before the adoption; and the adoption was
entered into for the purpose of child trafficking or undue gain within the
meaning of the Hague Convention on Adoption. He explained that he put these
concerns to the principal applicant on June 2, 2014 and gave him an opportunity
to make submissions.
[13]
In response, the principal applicant submitted a
statement. He noted that abandoned babies are common in China and often no
formal process is followed. He stated that the adoption had to be formalized in
order to achieve Hong Kong residency and tax benefits for his daughter. He said
he did not know how his wife handled the adoption, but that she “puzzled out” ways of formal adoption. He explained
that he had difficulty filling out the residence section of the application
form because his daughter formally belonged to the seniors’ home, but that organization
did not practically take her. He also explained that his wife’s sister helped
take care of the baby until she was about two years old.
[14]
The officer explained that the applicants’
submissions did not respond to his/her concerns. The officer found the principal
applicant’s child does not meet the requirements of paragraphs 5.1(1)(a) and
(d) of the Act.
[15]
The Global Case Management System notes further
explain that given that an adoption is an exceptional event in one’s life, the officer
found the principal applicant’s explanation regarding the provenance of his
child to be incredible and that he did not know details surrounding his
daughter’s adoption. Considering the evasive answers given by the principal
applicant at the interview, the results of the telephone verification, the
discrepancies in the principal applicant’s wife’s statements in the interview
and the principal applicant’s statement in response to the procedural fairness
letter, there was insufficient evidence to demonstrate the adoption was in the
child’s best interests, that it was not entered into primarily for the purpose
of acquiring a status or privilege in relation to citizenship or immigration,
and that prior to the adoption, the child’s parents gave their free and
informed consent to the adoption. The officer also found there was no evidence
the adoption was not for the purpose of child trafficking or undue gain.
III.
Issues
[16]
The applicants state the decision is
unreasonable because:
1.
No issue was raised regarding the legality of
the adoption, yet concerns were raised relating to the principal applicant’s
daughter’s “provenance”;
2.
The test for an adoption of convenience is not
met;
3.
The finding on the best interests of the child
is not reasonable;
4.
The finding on the consent of the birth parents
ignores evidence; and
5.
The finding on child trafficking and undue gain
are not reasonable.
IV.
Applicants’ Written Submissions
A.
Legality of Adoption
[17]
The applicants submit that the officer did not
refuse the application on the basis of paragraph 5.1(1)(c) of the Act. The
officer was apparently satisfied that the adoption was legally valid. However,
the officer raised concerns regarding the “provenance” of the principal
applicant’s daughter. Given that the Government of China was satisfied the
adoption was legitimate and the principal applicant and his wife were eligible
to adopt her, the officer’s concerns regarding the provenance of the principal applicant’s
daughter was unreasonable.
B.
Test for Adoption of Convenience
[18]
The applicants submit that the decision does not
explain the finding that the adoption was an adoption of convenience or how it
flows from the evidence. The applicants submit that the test for an adoption of
convenience is only met in the clearest of cases. Young v Canada (Minister
of Citizenship and Immigration), 2015 FC 316 [Young] provides that
the bar for finding an adoption was entered into primarily for acquiring a
benefit of immigration or citizenship is high. The Federal Court of Appeal
noted in Canada (Minister of Citizenship and Immigration) v Dufour, 2014
FCA 81 [Dufour] that finding an adoption of convenience is generally
limited to situations where the parties have no real intention to create a
parent-child relationship (at paragraphs 55 and 56).
[19]
The applicants submit that the officer provided
no justification for the conclusion that there was no real intention to create
a parent-child relationship and did not identify any concerns relating to the
parent-child relationship.
[20]
The applicants submit that section 11.10 of the Citizenship
and Immigration Canada [CIC] CP14 Manual [CP14 Manual] provides a list of
factors that may be considered in identifying adoptions of convenience. The
applicants submit that none of these factors were evaluated by the officer.
While they do not have the force of law, the factors are important and their
importance has been recognized by the Federal Court of Appeal in Dufour
(at paragraph 57).
[21]
The applicants argue the record supports that
the principal applicant and his wife have complete and total authority over
their daughter, are her legal parents and this has been true since 2007.
[22]
Further, the applicants argue that finding an
adoption of convenience requires an inference of malicious intent, on the basis
of duly proven facts and not speculation, on the part of the parents (Dufour
at paragraph 60).
[23]
The applicants submit that the telephone
verification process used by the officer does not fulfil the standard for
finding an adoption of convenience. It appears that the CIC representative did
not identify himself or herself at the outset of the phone call which would
reasonably make employees at the seniors’ home reluctant to admit they housed
an abandoned child. When the CIC representative did identify himself or herself,
the representative was put in contact with the past director, who verified the principal
applicant’s and his wife’s statements.
[24]
Further, the applicants submit that it was clear
from the interview the principal applicant knew little about the adoption
process because he was working in Hong Kong at the time of the adoption.
[25]
The applicants argue that drawing an inference
from a contradiction in the evidence, that the adoption was an adoption of
convenience, amounts to speculation (Young at paragraphs 21 and 22). The
officer failed to consider the reasons for the adoption other than acquiring
status or privilege in Canada (Smith v Canada (Minister of
Citizenship and Immigration), 2014 FC 929 at paragraphs 62 to 65 [Smith]).
The applicants submit that there is no evidence to substantiate this was an
adoption of convenience and the officer does not address the logical reason for
the adoption; to permit Man Ki to join her family in Canada.
C.
Best Interests of Child
[26]
The applicants submit that the decision does not
explain the officer’s finding, i.e., why the adoption is not in Man Ki’s best
interests, or how it flows from the evidence.
[27]
Further, the applicants argue the adoption is in
Man Ki’s best interests and the officer failed to identify this. The evidence
substantiates that Man Ki is content, well cared for and identifies the
applicant and his wife as her parents.
D.
Consent of Birth Parents
[28]
The applicants submit that the evidence
demonstrates Man Ki’s birth parents were sought and not found. They provided
the newspaper advertisement which sought Man Ki’s parents, the adoption
certificate which states the parents could not be found and the male applicant
explained in two letters to the officer that the parents could not be found.
[29]
The applicants submit the officer’s decision is
unreasonable because the officer ignored the above evidence, which contradicted
the finding in reaching the conclusion.
E.
Child Trafficking and Undue Gain
[30]
The applicants submit that, contrary to section
12.9 of the CP14 Manual, the officer cited no evidence that Man Ki was
abducted, sold or the subject of improper financial gain. Given the serious
nature of a finding under paragraph 5.1(1)(d) of the Act, this was a
significant error. Further, contrary to section 12.9 of the CP14 Manual, it
does not appear that Citizenship Case Review at the Case Management Branch of
Citizenship and Immigration was contacted, which is also an error.
V.
Respondent’s Written Submissions
A.
Legality of Adoption
[31]
The respondent submits that the officer’s
discretion should not be fettered by the existence of valid adoption documents.
It was reasonable for the officer to question the origins of the principal
applicant’s daughter and find her adoption did not meet the requirements of the
Act. Further, the respondent argues that even if the adoption was legally
valid, it must also be in the best interests of the child.
B.
Test for Adoption of Convenience
[32]
The respondent submits that the decision was not
based on speculation. As a result of the vague and contradictory evidence and
telephone verification process, the officer was not satisfied the adoption was
not entered into for immigration purposes.
[33]
The respondent submits that in Dufour,
the Federal Court of Appeal held that because direct evidence of fraud is rare,
the officer must often infer malicious intent from all the relevant
circumstances. It was reasonable for the officer to infer that this could be an
adoption of convenience based on the evidence and telephone verification
process. The respondent submits that the officer did not base this conclusion only
on the material on file (as in Dufour) or the interview (as in Young),
but rather on the interviews, the evidence, the telephone verification process
and the principal applicant’s and his wife’s lack of reasonable explanation for
the inconsistencies that arose.
[34]
The respondent submits that the applicants’
reliance on Dufour for the proposition that there must be clear evidence
of an adoption of convenience is misplaced, as that decision was based on
subsection 5.1(3) of the Act and, in that case, the Court held there was a
genuine parent-child relationship and the adoption was in the best interests of
the child. Given that these findings were not made in the present case and the
decision was based on subsection 5.1(1), a less stringent approach to a finding
of an adoption of convenience is reasonable.
C.
Best Interests of the Child
[35]
The respondent submits that the officer
concluded the applicants did not demonstrate the adoption was in the best
interests of the child due to the principal applicant’s and his wife’s vague
and inconsistent evidence about the origins of their daughter and the adoption
process. In particular:
1.
The principal applicant provided few details of
the adoption;
2.
The principal applicant’s wife confused the
dates when her daughter was adopted;
3.
The principal applicant provided inconsistent
evidence as to whether the child lived at the Child Welfare Institute, as
indicated on the application form; and
4.
The principal applicant did not know his wife’s
sister found the baby.
[36]
The telephone verification did not resolve the
officer’s concerns resulting from this evidence. It revealed contradictory
responses regarding the alleged abandonment of the child.
[37]
The applicants’ submissions in response to the officer’s
fairness letter did not resolve the concerns. This response did not resolve the
discrepancies arising out of the telephone verification process and it remains
unclear how the principal applicant’s daughter came to be found and adopted. The
principal applicant simply explained that his wife and her sister “puzzled out ways of formal adoption” and had to look
for an organization to recognize the abandoned baby to proceed with the
adoption. The principal applicant explained that, as a person from Hong Kong,
he was unfamiliar with the process and thus had difficulty completing his
daughter’s residence history, as she formally belonged to the seniors’ home but
that organization did not practically take her.
[38]
The respondent argues that the explanation the
applicants now offer, that the employees of the seniors’ home would be
reluctant to admit they housed an abandoned child in 2007 to an unknown person,
was not provided in the submissions in response to the fairness letter and does
not negate the officer’s concerns. It also does not address the fact that the consultant
who was contacted also did not know of a baby abandoned at the seniors’ home in
2007.
D.
Consent of Birth Parents
[39]
The respondent submits that the applicants’
submissions on this point amount to a request for the Court to re-analyze the
evidence. The officer is not required to list every piece of evidence. The
evidence cited by the applicants was not sufficient to overcome the officer’s
doubts arising from the contradictory evidence from the principal applicant’s
and his wife’s interview and the telephone verification.
E.
Child Trafficking and Undue Gain
[40]
The respondent submits that the officer could
not be satisfied the adoption was not for the purposes of child trafficking or
undue gain because of the inconsistent information arising from the interview and
telephone verification.
[41]
The respondent also submits that there was no
duty on the officer to contact Citizenship Case Review because section 12.9 of
the CP14 Manual only applies where officers have evidence of child abduction or
fraud. Here, the officer was not relying on such evidence.
VI.
Analysis and Decision
(1)
No issue was raised regarding the legality of
the adoption, yet concerns were raised relating to the principal applicant’s
daughter’s “provenance”.
[42]
It does not appear that the officer had any
concerns with the legality of the adoption as it was not discussed in the
decision as a reason for refusal of the application. The officer did mention
concerns about the “provenance” of the adoptive child but gave no further
details and did not mention this in the decision. Hence, there is nothing to
show the adoption was not legal.
(2)
The test for an adoption of convenience is not
met.
[43]
Regarding the finding that the adoption was an “adoption of convenience”, I agree with the respondent
the decision in Dufour was made in the context of a different section of
the Act and in the context of positive findings regarding the best interests of
the child and a genuine parent-child relationship.
[44]
However, in my view, the statements regarding
the evidence required are still applicable in the present circumstances. Dufour
provides:
55 Adoptions of convenience are
limited to situations where the parties (the adoptee or the adopter) have no
real intention to create a parent-child relationship. They are adoptions where
appearances do not reflect the reality. They are schemes to circumvent the
requirements of the Act or of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27.
56 If there is a true intention to
create a parent-child relationship and this relationship is in the best
interests of the minor child, it cannot normally be concluded that the adoption
is entered into primarily to create a status or a privilege in relation to
immigration or citizenship.
57 Even in cases where there is no
Canadian court judgment certifying the lawfulness of the adoption, there must
be clear evidence that it is an adoption of convenience. This is why the
relevant circumstances to be considered under section 11.10 of the CP14 manual
(a non-exhaustive list) state that a decision-maker must take into account a
variety of factors existing at the time of the adoption, as well as the
situation of the child before and after the adoption, even though the intention
with which we are concerned is that of the parties at the time of the adoption.
As the CP14 manual states, it is all these factors taken together that allow a
decision-maker to determine whether the parties had a particular intention
contrary to paragraph 5.1(3)(b) at the time of the adoption. It is surprising
to note that the officer in this case never refers to these criteria in her
analysis or in her affidavit, and that section 11.10 of the CP14 manual is not
included in the excerpts from manuals filed in the appeal book (see Exhibit “B”
in the affidavit of Nicole Campbell, pages 77 et seq. of the A.B., and
in particular pages 321-322 of the A.B.).
58 It is rare to have direct evidence
that one of the parties intended to defraud the other or that both parties
primarily intended to acquire a status or privilege in relation to immigration
on the basis of a family relationship that does not reflect the reality of
their situation. One can certainly imagine such scenarios, for example, where
one or both parties were members of or used a network for providing foreign
nationals with a status or privilege in relation to immigration or citizenship.
59 In the vast majority of cases, the
administrative decision-maker must infer malicious intent from all the relevant
circumstances.
60 To infer intent, the decision-
maker must first have duly proven facts on which to base his or her reasoning
or logical deductions. Intent cannot be inferred from a fact that is nothing
more than one among many theories because such an approach amounts to pure
speculation rather than logical reasoning.
61 Therefore, to find that paragraph
5.1(3)(b) has been violated, the officer could not speculate on the intentions
of the respondent and Mr. Dufour.
[45]
The Federal Court of Appeal’s statements in
paragraph 57 and following are based on the alternative situation where a
genuine parent-child relationship and the best interests of the child are not
established in a Canadian court judgment. Consequently, that the best interests
of the child and a genuine parent-child relationship are not necessarily found
by the officer in the present case does not affect the applicability of the
statements from Dufour that the inference of intent to defraud cannot be
drawn based on speculation and must be based on logical reasoning.
[46]
Further, the statements from Dufour have
been applied in the context of subsection 5.1(1) in Young:
18 The bar for finding that an
adoption was entered into primarily for acquiring a benefit of immigration or
citizenship is high. When an adoption has been approved by a Canadian court, it
must be established that the court judgment was obtained by fraud against the
legal system: Canada (Citizenship and Immigration) v Dufour, 2014 FCA
81. This gives effect to Parliament’s intention when enacting section 5.1; to
facilitate the granting of Canadian citizenship to children adopted abroad by
Canadian citizens: Dufour at para 53. In cases where there is no
Canadian court judgment certifying the lawfulness of the adoption, such as the
present case, there “must be clear evidence that it is an adoption of
convenience”: Dufour at para 57.
19 Adoptions of convenience are
“limited to situations where the parties (the adoptee or the adopter) have no
real intention to create a parent-child relationship”: Dufour at para
55. Essentially, they are “schemes to circumvent the requirements of the
[Citizenship] Act or of the Immigration and Refugee Protection Act, S.C.
2001, c. 27”: Dufour at para 55. In Perera v Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No 1443 at para 14, the Federal
Court held that “[s]imilarly to a so-called ‘marriage of convenience’ (where
two total strangers fake an illusory marital relationship so as to admit a
temporary spouse to Canada) an ‘adoption of convenience’ would be a situation
where Canadian citizens pretend to adopt an unknown child so as to bring him to
Canada for a financial reward”.
[47]
In my opinion, the finding of an adoption of
convenience in the present case is not based on logical reasoning or the
evidence. The officer never connects the findings relating to the deficiencies
in the evidence to why the adoption is one of convenience. While the
deficiencies in the evidence might be because the adoption is one of
convenience, this is only one of many reasons which could explain why there are
identified deficiencies.
[48]
Further, there is nothing to suggest the
principal applicant has anything to gain from his young daughter becoming a
Canadian citizen, beyond ensuring the family can move to Canada for reasons
related to the child’s education: Smith at paragraph 65:
The Officer’s reasons for refusal do not
acknowledge the evidence that would support the contrary finding, i.e. that the
adoption was entered into for reasons other than acquiring a status or
privilege in Canada, including for example, to take the next logical step to
solidify the future for Shana-K as the child of Ms Smith and as part of the
family here, and to provide a safer environment. Ms Smith’s goal of providing a
better quality of life for Shana-K is also a legitimate goal and is clearly one
of the purposes for pursuing the adoption, but the Officer’s finding that this
intention leads only to the conclusion that the adoption was entered into to
circumvent the requirements of IRPA or the Citizenship Act is not
supported by the evidence on the record and is not reasonable.
[49]
Moreover, as in Dufour, it is surprising
the officer never refers to section 11.10 of the CP14 Manual, which elucidates
factors that may be considered in finding an adoption of convenience.
[50]
I conclude that the officer’s decision relating
to an adoption of convenience is unreasonable.
(3)
The finding on the best interests of the child
is not reasonable.
[51]
At the hearing of this matter, counsel for the
respondent informed the Court that this issue was conceded.
(4)
The finding on the consent of the birth parents
ignores evidence.
[52]
I agree with the applicants that the officer’s
finding relating to the consent of the birth parents was not reasonable, as it
ignores and does not address the evidence that efforts were made to locate the
child’s birth parents, in accordance with Chinese law. Moreover, the officer
never connects his finding on this factor to his findings that the adoption was
not in the child’s best interests and was one of convenience.
(5)
The finding on child trafficking and undue gain
are not reasonable.
[53]
I also agree with the applicants that the
officer’s finding relating to whether the child was abducted, sold or the
subject of improper financial gain was unreasonable. There is no logical link
between the deficiencies in the evidence relating to the child’s provenance and
whether she was abducted, sold or the subject of improper financial gain. The officer
was not entitled to make this finding simply because the evidence was
deficient; it needed to be justified in the evidence. This is supported by section
12.9 of the CP14 Manual. Moreover, the officer never connects the finding on
this factor to the findings that the adoption was not in the child’s best
interests and was one of convenience.
[54]
Further, I agree with the applicants that, to
refuse the case on this basis, according to section 12.9 of the CP14 Manual,
the officer was required to contact the Case Management Branch. While not
binding, contrary to the respondent’s argument, the language of the CP14 Manual
does not restrict this requirement only to situations where evidence, rather
than credibility assessments, is being considered to make a finding of child
trafficking or undue gain.
[55]
For the above reasons, it is my opinion that the
application be allowed.
[56]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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