Date: 20020815
Docket: IMM-5094-00
Neutral citation: 2002 FCT 872
BETWEEN:
ALBINA JESUTHASAN,
FRANCISKA MUDIYAPPU,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] Canadian citizen Albina Jesuthasan (Albina) sponsored the application of her mother Franciska Mudiyappu (Franciska) and her "adopted brother" Edward Regi Consen Dayan (Edward), both Sri Lankan citizens, for permanent residence in Canada. Franciska, in her application, included Edward, her biological grandson, as a dependent. Franciska and Edward were interviewed by a visa officer at the Canadian High Commission in Colombo on May 18, 1999. At the time of the interview, Edward was 12 years old. In a letter dated July 7, 1999 the application was refused on the basis that there was no evidence of formal adoption by Franciska with respect to Edward. After receiving the decision, Franciska submitted further documentation and the file was again reviewed. By correspondence dated May 2, 2000 the visa officer informed Franciska that Edward was not eligible for admission to Canada because he was not an adopted son within the meaning of the Immigration Regulations, 1978, SOR/78-172, as amended.
[2] The applicants seek judicial review of the May 2nd decision and request that it be set aside and that the application be referred back for redetermination by a different visa officer. The applicants allege two principal grounds for review:
1.) breach of procedural fairness by the visa officer in that Edward was interviewed individually, without the consent of Franciska and in the absence of any relative, guardian or trusted friend;
2.) error of law by the visa officer in the application of the test to determine whether an adoptive relationship existed. In this respect the applicants say that the officer ignored relevant evidence and considered irrelevant factors.
[3] I have concluded, for the reasons that follow, that there was a breach of procedural fairness.
[4] The applicants argue that Edward should not have been interviewed alone. Franciska did not consent and was concerned that Edward was too young either to appreciate the consequences of the interview or to express himself clearly. In her affidavit, she deposes that Edward was nervous, frightened and intimidated by the interview. Relying on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, they submit that because the interview had the potential to significantly adversely affect Edward's interests, it was imperative for the visa officer to proceed only in the presence of a trusted adult who could act as Edward's representative.
[5] The applicants refer to and rely on subsection 16(1) of the Canada Evidence Act, R.S.C. 1985, c.C-5, which mandates the inquiry to be undertaken by a court before receiving the sworn or affirmed evidence of witnesses under 14 years of age. Lastly, they submit that the rules of procedural fairness include international standards that Canada has ratified and they rely on the United Nations Convention on the Rights of the Child, specifically Article 3(1), wherein it states that the best interests of the child shall be a primary consideration in all matters concerning children. The applicants suggest that if visa officers choose to interview children in the absence of an adult representative, such interviews should be taped. No authorities were submitted in relation to these arguments.
[6] The respondent submits that it was Franciska who was interviewed first and as a result of the evasive and confusing information she provided, the visa officer called Edward in to confirm the information provided by Franciska. When Franciska answered questions directed to Edward and interrupted his answers, the officer determined that it was necessary to interview Edward alone. Although Franciska did not specifically object, the officer was aware, by her reaction, that she was not happy with the procedure. The respondent argues that Franciska created the situation that she now complains of and that the interview with Edward was necessary to prevent coaching and collusion.
[7] The respondent relies on Singh v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1441 (T.D.) and Grewal v. Canada (Minister of Employment and Immigration) (1993), 62 F.T.R. 308, which were decided in the context of "bona fide marriages" and says that the reasoning in those cases applies equally to these circumstances. The respondent states that the Canada Evidence Act does not apply because the interview is not a criminal proceeding. There is no right to counsel nor is there a right to remain silent. The onus is on the applicants to convince the visa officer of the bona fides of the application and it was therefore open to the officer to seek clarification from Edward to determine the veracity of Franciska's claims.
[8] The respondent submits that while the court may consider the weight to be given the answers provided by a minor child, absent objection at the time from Franciska or evidence that Edward was coerced into giving erroneous answers, there was no breach of fairness warranting the intervention of the court. Lastly, the respondent argues that regard must be had to the volume of applications confronting visa officers. Insistence on taped interviews, as suggested by the applicants, would handcuff visa officers and elevate visa applications to the status of judicial proceedings.
[9] The content of the duty of fairness owed by a visa officer with respect to a visa application is towards the lower end of the range: Patel v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 48 (F.C.A.). The interviewing officer has the right to control the interview and conduct it in an effective and efficient manner: Charles v. Canada (Minister of Citizenship and Immigration) (1999), 241 N.R. 398 (F.C.A.); Cheema (Litigation Guardian) v. Canada (Minister of Citizenship and Immigration), 2002 FCT 638, [2002] F.C.J. No. 847. The Canada Evidence Act applies to legal proceedings, not administrative tribunals: He v. Canada (Minister of Citizenship and Immigration) (1999), 162 F.T.R. 121. The international obligations under the Convention on the Rights of the Child have not been incorporated into domestic law: Langner v. Canada (Minister of Employment and Immigration) (1995), 184 N.R. 230 (F.C.A.) leave to appeal to S.C.C. dismissed, although the values expressed by international humans rights law may help inform the contextual approach to statutory interpretation: Baker v. Canada, supra. There is no issue of statutory interpretation in this matter.
[10] The Singh and Grewal cases cited by the respondent do not apply to the circumstances existing here but I agree with the respondent that the reasoning is helpful. In Grewal, Noel, J. (as he then was) stated that the interview process (in relation to an alleged bona fide marriage) is conducted separately for the very purpose of avoiding collusion and for the purpose of elucidating the truth. Here, the issue was an alleged bona fide adoption. The visa officer was trying to determine whether Franciska had been a de facto parent to Edward since the death of his biological mother when he was 18 months old. The officer was not satisfied with some of the answers Franciska provided and wished to question Edward. It was because Franciska interrupted the questions asked of Edward and attempted to answer for him that the visa officer decided to interview Edward separately. He was 12 years old at the time and was not a child of tender years. I do not find that the visa officer's action was unreasonable in the circumstances. That finding, however, is not dispositive.
[11] The court has a special responsibility towards children: Coomaraswamy et at. v. Canada (Minister of Citizenship and Immigration) 2002 FCA 153, [2002] F.C.J. 603. The duty of fairness for a visa officer who chooses to interview a child will vary depending on the circumstances. There are no precise rules that can be applied because each situation will be different. Much will depend on the age and cognitive development of the child and the capacity of the child to communicate. The younger the child, the more stringent the duty will be. While I am mindful that the court should not unduly encumber the process and impose restrictions on visa officers that inhibit efficiency, there are, in my view, basic requirements that must be met in all cases when a child under the age of 18 is interviewed, if the evidence is to have probative value. At a minimum, the visa officer must ensure that the child understands the nature of the proceeding, understands the importance of telling the truth, indicates a willingness to tell the truth and in circumstances where the questions relate to a previous time frame, the officer must ensure that the child has the capacity to remember the time in question.
[12] Here, there is no indication that the visa officer considered, let alone addressed, any of these factors. Although the officer deposes that Edward was quite [at] ease and appeared comfortable, the only other reference to the interview is a statement that Edward's attention was diverted by the noise of the air conditioner. The visa officer relied exclusively on Edward's answers to questions regarding his living arrangements between the time he was 18 months and 10 years of age despite Franciska's evidence and documentary evidence to the contrary. It was not open to the visa officer to assign such probative value to the child's responses without first addressing the factors listed above. The visa officer's omission constitutes a breach of procedural fairness.
[13] The application for judicial review is allowed and the application is remitted back for redetermination before a different visa officer. Having allowed the application on the first ground advanced by the applicants, it is not necessary for me to address the second ground.
[14] Counsel for the applicants suggested the following question for certification:
Does a determination under subsection 2(1) of the
[Immigration] Regulations regarding the existence
of a genuine parent child relationship require an
assessment of the best interests of the child.
The respondent's counsel argued that the circumstances of this matter are fact specific and therefore the proposed question is not of a general nature and should not be certified.
[15] I have difficulty with the applicants' request because the proposed question was not argued. Counsel's submissions in this regard consisted of a single reference to the comments of Justice L'Heureux-Dubé in Baker, supra, that we must be sensitive to the best interests of children and a recitation of Article 3(1) of the Convention on the Rights of the Child.
[16] The best interests of the child test has been characterized as indeterminate. The multitude of factors that may impinge on the child's best interest make a measure of indeterminacy inevitable. A more precise test would risk sacrificing the child's best interests to expediency and certainty: Gordon v. Goertz, [1996] 2 S.C.R. 27. Any determination of the best interests of a child requires evidence. The Record in this matter contained no evidence of what the applicants considered to be in the best interests of this child. Additionally, the proposed question does not bear on the reasons for allowing the application therefore an answer from the Court of Appeal to the proposed question could not affect the outcome of the judicial review proceeding. The question will not be certified.
__________________________________
Judge
Ottawa, Ontario
August 15, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5094-00
STYLE OF CAUSE: Albina Jesuthasan v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, April 30, 2002
REASONS FOR ORDER OF
THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
APPEARANCES:
Mr. Michael Battista FOR APPLICANT
Mr. Jamie Todd FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Michael Battista FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada