Ottawa, Ontario, January 25, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
MARIERE OGBEWE and ENENI OGBEWE
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mariere and Eneni Ogbewe are citizens of Nigeria, and the parents of several children. The family's applications for permanent residence have been outstanding for nearly seven years, and they now seek a writ of mandamus to compel a decision regarding their applications. According to the Ogbewes, not only has there been a failure on the part of the visa officer to perform her statutory duty within a reasonable time, in addition, the ever-changing nature of the demands for documentation on the part of the visa officer demonstrates that she has been acting in bad faith in her handling of the case.
[2] The applications for permanent residence that form the subject matter of this application were filed in early 1999. However, these were not the first applications filed by the Ogbewes. In October of 1998, previous applications for permanent residence filed by the family were refused because of the medical inadmissibility of one of the children. The family's second set of applications did not include the child, who was no longer a member of the family, having allegedly been adopted by relatives in the interim.
[3] The Minister asserts that there are good reasons for doubting the legitimacy of the adoption, and that the onus was on the applicants to establish that the child was no longer a member of the family. Having failed to provide clear and unambiguous evidence of the child's status, the visa officer quite reasonably refused to process the applications.
[4] Thus there are two issues for the Court: first, whether in dealing with the Ogbewe's applications the visa officer acted in bad faith; and second, whether the conditions for mandamus have been met. While I am not persuaded that the visa officer acted in bad faith, I am satisfied that there has been an unreasonable delay in the processing of the family's applications, and that mandamus should therefore issue.
Did the Visa Officer Act in Bad Faith?
[5] The Ogbewes submit that the visa officer developed an entrenched view that the adoption of their child was not valid, even though they provided the officer with a number of documents, including what purports to be a certified copy of the order of a Nigerian court finalizing the adoption, all of which demonstrate that the adoption was indeed bona fide.
[6] Citing decisions such as Re A.R., [1982] O.J. No. 766, Re A.P., [2002] O.J. No. 2373, and Sinniah v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1100, the applicants argue that an adoption documented by a final order of a foreign court should be presumed to be valid, and such an order is the best evidence that the adoption was carried out in accordance with the laws of the country in question. In this case, the applicants say, the visa officer relied on nothing more than speculation to question the validity of the child's adoption.
[7] Moreover, the applicants contend that whenever they provided the visa officer with documentation in an effort to demonstrate the validity of the adoption, the visa officer simply changed her requirements, asking for different documents, in an effort to confirm her suspicion that the adoption was not legitimate.
[8] The applicants have not succeeded in persuading me that the visa officer acted in bad faith in this case. The cases cited by the applicants stand for the proposition that an order of a foreign court is prima facie evidence that the adoption has been carried out in accordance with the domestic laws of the country in question. This assumes, however, that the document in question is authentic. In this case, it appears that the officer had reason to question the authenticity of the document.
[9] Moreover, the presumption of validity is a rebuttable one. In this case, there was evidence that Nigerian law imposed residency requirements on both the proposed adoptive parents and the child. Given that the child had not lived in Nigeria for years, and that the proposed adoptive parents resided in the United Kingdom at the time of the adoption, it was entirely reasonable for the visa officer to want to satisfy herself that the residency requirements imposed by Nigerian law had in fact been complied with.
[10] Finally, it bears noting that on a number of occasions, the visa officer asked the applicants to provide specific documents to assist in establishing the legitimacy of the child's adoption. The documents provided by the applicants were often not the documents requested, but other documents, which documents evidently raised additional questions in the mind of the visa officer as to the status of the child.
[11] The visa officer was clearly troubled by the apparent inability or unwillingness of the applicants to provide the specific documents requested in order to establish the legitimacy of the child's adoption. This was, in my view, a reasonable concern. Moreover, the documents that were provided by the applicants themselves raised questions about the status of the child, and I see nothing inappropriate about the visa officer seeking answers to these questions.
[12] In addition to the concerns referred to in the preceding paragraphs, the timing of, and circumstances surrounding the child's adoption are such that it was not unreasonable for the officer to have concerns as to the legitimacy of the adoption. As a consequence, I am not prepared to make a finding of bad faith on the part of the visa officer.
[13] That said, the fact is that the applicants' applications for permanent residence have now been outstanding for nearly seven years. The question therefore remains as to whether mandamus should issue. This issue will be considered next.
Is Mandamus Appropriate in the Circumstances of this Case?
[14] The applicants submit that there has been an unreasonable delay in the processing of their applications, whereas the Minister submits that it is the applicants' fault that the applications have not been finalized, because they have not satisfied the onus on them of establishing that the child is no longer a member of their family, and is not, therefore, subject to examination.
[15] It is not necessary to review the lengthy history of this case. A review of the record discloses that the ball has been in the Minister's court since at least 2001. That is, in November of 2001, the visa officer advised the applicants that she would have the authenticity of the child's British passport verified by the British Home Office. Despite repeated inquiries from the applicants, nothing appears to have happened in this regard between November of 2001 and September of 2002, when the visa officer advised the applicants that she would try contacting the British Home Office again, and would advise them when a response had been received.
[16] Two more inquiries from the applicants in March and September of 2003 did not generate a response from the visa officer, and there is no indication of any further action having been taken by the visa officer to pursue the matter.
[17] Similarly, although the visa officer advised the applicants in June of 1999 that she would be taking the necessary steps to verify the authenticity of the Nigerian court order, this does not appear to have happened either.
[18] As the Court noted in Conille v. Canada(Minister of Citizenship and Immigration), [1999] 2 F.C. 33, at ¶ 8, in order to be entitled to mandamus, the applicants must establish that:
1. There is a public legal duty to act;
2. The duty must be owed to the applicants;
3. There is a clear right to the performance of that duty, in particular:
a) the applicants must have satisfied all conditions precedent giving rise to the duty; and
b) there was a prior demand for performance of the duty, a reasonable time to comply with the demand, and a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay; and
4. There is no other adequate remedy.
[19] I am satisfied that the test has been met in this case. The applicants have provided their evidence to the visa officer as to the legitimacy of the adoption, and although the sufficiency of that evidence remains to be determined, the applicants are entitled to a decision in this regard.
[20] In the absence of little or no action on the file for several years, I am satisfied that there has been an unreasonable delay, and that mandamus should issue.
[21] The question then remains as to the appropriate time line that should be imposed on the Minister for a decision. In addition, the applicants submit that directions should be provided to the visa officer with respect to the presumed validity of the Nigerian adoption order, and the weight that should thus be accorded to the order.
[22] Dealing with the second issue first, I am not persuaded that it is appropriate to provide directions to the visa officer as to the weight that should be accorded to the Nigerian adoption order. The visa officer will have to carefully consider all of the facts and circumstances relating to the adoption, including, amongst others things, the presumption of validity, in coming to a decision as to whether the child is still a member of the Ogbewe family, and thus subject to examination.
[23] Insofar as a time line is concerned, I am satisfied that the visa officer should be able to make a decision with respect to the applicants' applications within 120 days of this order, and I so direct. Any positive decision will, of course, be subject to the applicants' providing proof of their medical admissibility.
Conclusion
[24] For these reasons, the application for judicial review is allowed.
Certification
[25] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to the visa officer for a decision in relation to the applicants' applications for permanent residence, in accordance with these reasons. The officer's decision is to be rendered within 120 days of this decision.
2. No serious question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3169-04
STYLE OF CAUSE: MARIERE OGBEWE ET AL.
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 18, 2006
REASONS FOR ORDER
DATED: January 25, 2006
APPEARANCES:
Ms. Barbara Jackman FOR THE APPLICANT
Mr. Jamie Todd FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jackman and Associates FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario