Date: 20131204
Dockets:
T-1537-12
T-1538-12
Citation:
2013 FC 1215
Ottawa, Ontario, December 4, 2013
PRESENT: The Honourable Mr. Justice
Harrington
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Docket:
T-1537-12
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BETWEEN:
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GURKINDER SINGH SANDHU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMGRATION
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Respondent
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Docket:
T-1538-12
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AND BETWEEN:
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MANINDER DEEP SANDHU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
Gurkinder Singh Sandhu and Maninder Deep Sandhu,
Indian nationals, were adopted in British Columbia, by two Canadians, Baljinder
Kaur Sandhu and her husband Dangal Singh Sandhu. The latter is related to the
adopted. At the time of the adoption, Gurkinder was 19 years of age and Maninder
was 18.
[2]
The Minister’s delegate refused to grant
Gurkinder and Maninder citizenship on the grounds that there was no genuine
parent/child relationship before they reached the age of 18. This is the
judicial review of those decisions.
[3]
Citizenship rights of non-Canadians adopted by
Canadians, who are not Quebec residents, are now governed by subsections 5.1(1)
and 5.1(2) of the Citizenship Act which read:
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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.
(2) 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 at least 18
years of age if
(a) there was a genuine relationship of
parent and child between the person and the adoptive parent before the person
attained the age of 18 years and at the time of the adoption; and
(b) the adoption meets the requirements
set out in paragraphs (1)(c) and (d).
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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.
(2) 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 âgée de
dix-huit ans ou plus, si les conditions suivantes sont remplies :
a) il existait un véritable lien affectif
parent-enfant entre l’adoptant et l’adopté avant que celui-ci n’atteigne
l’âge de dix-huit ans et au moment de l’adoption;
b) l’adoption satisfait aux conditions
prévues aux alinéas (1)c) et d).
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[4]
The citizenship officer was satisfied that there
was a genuine parent/child relationship at the time of the adoption, and
subsequently. However, she was of the view that this relationship only developed
after the applicants came to Canada on study permits. Having found that there
was no genuine parent/child relationship before they reached the age of 18, she
did not consider whether or not the relationship was entered into primarily for
the purpose of acquiring status in relation to citizenship.
I. The Issues
[5]
The applicants submit that the hearing was
procedurally unfair and, in any event, was unreasonable. The Minister submits
that what the applicants characterize as procedural fairness should rather be
characterized as findings of credibility. Furthermore, the decision was
reasonable.
[6]
The Court owes no deference to a federal board
or tribunal on questions of natural injustice, including procedural fairness.
The general rule is that if the process was tainted with unfairness, judicial
review should be granted and the matter referred to another officer for
redetermination (Cardinal v Director of Kent Institution, [1985] 2 SCR
643, [1985] SCJ No 78 (QL)).
[7]
Otherwise, the decision is reviewed on a standard
of reasonableness (Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190, [2008] SCJ No 9 (QL), para
47). Even if the rationale is not as fulsome as one would like, the Court is
entitled to consider whether the conclusion is justified by the tribunal record
(Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, [2011] SCJ
No 62 (QL)).
II. Procedural Fairness
[8]
A number of points were raised, but none in my
opinion reach the level of unfairness. The applicants and their adoptive
parents were interviewed separately. Exclusion of witnesses is quite common in
court proceedings and certainly is not unfair.
[9]
A family friend, a former immigration officer,
attended the interviews with the family but was not given a right of audience.
However, there is no suggestion that he was an authorized immigration
consultant.
[10]
The applicants and their adoptive parents
complained that they proffered new documents to the officer who did not take
copy of them. Her evidence on cross-examination, confirmed by the applicants,
is that she did look at them and found there was nothing new. She did copy a
few documents, although there is some debate as to exactly what she had copied.
[11]
On matters of procedural unfairness, one is
entitled to bring to the Court documents which should have been before the
decision maker (Tremblay v Canada (Attorney General), 2005 FC 339, [2005] FCJ No 421 (QL)). Maninder said there were some
photographs. Nothing can turn on photographs. Nothing has been brought forward
to displace the officer’s assessment.
[12]
The interviews were not recorded. The officer
took handwritten notes, which were only transcribed a few weeks later. There
was no obligation to record the interviews. While it would have been better to
transcribe the notes earlier, there is no reason to assume that the original
notes were not accurate.
[13]
I agree with the position taken by the Minister
that the issue is really one of credibility. It was submitted that the
officer’s recollection should be preferred because the others had a personal
interest in the outcome. In my opinion, there is no such presumption. All
applicants in immigration and citizenship matters have a personal interest in
the outcome. Nevertheless, there is a presumption they are telling the truth (Maldonado v MEI, [1980] 2 FC 302 (CA))..
[14]
The officer and the applicants were
cross-examined on their affidavits. Certainly there are differences of
recollection, but on key issues the officer appears to have gotten it right.
III. The Decision Was Reasonable.
[15]
The interviews were far from perfect. The
officer did not ask, as she should have, who was financially supporting the
boys when they were in India. The evidence is that for at least a few years
their adoptive father had supported them. In cross-examination, the officer
said she did not ask the question because they were living with their parents.
This point is somewhat unclear as they were boarding away from home. Their
adoptive parents had a house in India 70 km away. They would visit there on
weekends.
[16]
However, the major point is that, according to
the officer, the adoptive parents stated that a genuine parent/child
relationship only developed once the young men were in Canada, at which time
they were adults, both having obtained the age of 18. Consequently, the officer
was entitled to make the decision she did. Even if I were to substitute my own
opinion for that of the officer, which I am not permitted to do on the
reasonableness standard of review, there is nothing in the record to establish
other than all the adoptive parents were doing in India was helping family members.
[17]
These applications were not consolidated but
were heard together in one hearing. The essential facts and issues are common
to both. I shall dismiss both applications. There shall be no order as to
costs. A copy of my reasons shall be filed in each.
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