Date: 20020604
Docket: IMM-2187-01
Neutral citation: 2002 FCT 638
BETWEEN:
IQBAL SINGH CHEEMA
by his Litigation Guardian
JASVIR SINGH CHEEMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Introduction
[1] These reasons arise out of an application for judicial review of a decision of an immigration officer denying the application of Iqbal Singh Cheema (the "applicant"), pursuant to subsection 114(2) of the Immigration Act[1], to apply for landing from within Canada on humanitarian and compassionate grounds. The decision under review is dated the 20th of April, 2001.
Background
[2] The applicant is a citizen of India. He was born the 13th of April, 1987 and therefore, at the date of these reasons, he was fifteen (15) years of age.
[3] Jasvir Singh Cheema (the "applicant's litigation guardian") and his wife were also both born in India. The applicant's litigation guardian immigrated to Canada under his sister's sponsorship in September 1990. He and his wife have now been living in Canada for some years and are Canadian citizens.
[4] In December of 1992, the applicant's litigation guardian and his wife executed a power of attorney wherein a relative of Mrs. Cheema was appointed as their agent to expedite their adoption of the applicant in India. With the assistance of the agent, an adoption ceremony was performed in February of 1993. An Adoption Deed was registered in the same month. In April of 1993, the applicant's litigation guardian filed an undertaking of assistance to sponsor the applicant's entrance to Canada as his adopted son. The applicant applied for a visa that would enable him to join his adoptive parents in Canada. That application was rejected by a visa officer on the 27th of July, 1995. The visa officer concluded that, for immigration purposes, the applicant was not the applicant's litigation guardian's adopted son and was not a member of the family class. The decision of the visa officer was appealed by the applicant's litigation guardian to the Immigration and Refugee Board, Appeal Division. The Appeal Division dismissed the appeal for want of jurisdiction, by Order dated the 28th of May, 1997. Judicial review was sought of the decision of the Appeal Division. The application for judicial review was dismissed by Deputy Justice Heald[2].
[5] The applicant continued to live in India with his grandparents rather than his parents, although he apparently visited his parents and his siblings on a regular basis. In 1998, the applicant's grandfather determined to send the applicant to Canada into the care of the applicant's litigation guardian and his wife. The applicant arrived in Canada in October of 1998, in the company of a man he did not know, who delivered the applicant to the doorstep of the applicant's litigation guardian's and his wife's home and then disappeared. It was not in dispute before me that the applicant's arrival in Canada was without foundation in law. The applicant continues to live with his litigation guardian and his litigation guardian's wife to this day.
[6] In 1999, the applicant's litigation guardian and his wife applied to the Ontario Court (Provincial Division) to adopt the applicant. An Adoption Order issued on the 9th of November, 1999. The Order is essentially a form in which blanks have been filled in indicating the name, date of birth, sex and place of birth of the applicant, the names and address of the adopting parents, the name, address and telephone number of the lawyer involved, and that the Order issued on the application of the adopting parents in the presence of the adopting parents, their solicitor and perhaps, it was not clear on the material before me, of the applicant. The documents filed on the adoption application are disclosed in the Order as being the application itself, a supporting affidavit, an affidavit of an adopting parent and the consents "...filed by both parties". The documentation supporting the Adoption Order remains sealed under the provisions of the Ontario Child and Family Services Act[3] (the "OCFSA"). No reasons were issued in support of the Order.
[7] On the 18th of November, 1999, the applicant filed an application for leave to apply for landing from within Canada on humanitarian and compassionate grounds. His application was based on the sponsorship of his adoptive parents. It is the negative decision flowing from that application that is here under review.
Notes Underlying the Decision Under Review
[8] The immigration officer's CAIPS notes underlying the decision here under review are in the following terms:
Terri Jackman [counsel or assistant for the applicant at interview] had to be asked to leave the interview room due to interruptions that were interfering with obtaining information. Interview continued without counsel present with the consent of the sponsors. After careful consideration of all the information gathered at the interview and all information and submissions on file, I am not satisfied that this adoption is a genuine one and not one completed for the sole purpose of applicant gaining permanent residence in Canada. The applicant was originally adopted in India in 1993. A sponsorship application done on applicants behalf was refused by the overseas visa office in Dehli in 1995 as the visa officer concluded that the adoption was one of convenience. The sponsor appealed the refusal in 1996, however the appeal was dismissed in 1997; in her reasons, presiding judge, Virginia Bartley concluded the adoptive parents were acting as caring relatives, however a parent/child relationship had not been established. The sponsors have been residing in Canada since 1990 and 1992 respectively while the applicant has been residing in India with his grandfather and parents; at his interview in India back in 1995 he appeared to have no knowledge he had been adopted, knew nothing about his sponsors (adoptive parents) and had had little contact with them; he referred to his
natural parents as his mother and father; he stated he lived with his grandfather as he liked it there and because his friends lived near there; he visited his parents every weekend, staying overnight every weekend. When asked by the visa officer about why he was going to his aunt in Canada he stated because he likes Canada and in English Canada is a very good city. Applicant did not know how long he would be staying in Canada. At his interview on March 6th, 2001 applicant stated he came to Canada around October 1998 approximately with the help of a man. The whole thing was arranged by applicants grandfather in order to get him into Canada without having obtained a CVV. Since applicant did not use his own passport to come to Canada there is no proof of when or how he entered Canada. A school letter indicates applicant has been attending school since May 2000 without authorization. At his interview yesterday, applicant stated he didn't like his parents and that is why he lived with his grandfather; this contradicts what he told the visa officer back in 1995. Both applicants natural parents are living in India; his parents and grandfather are well off financially and quite able to support the applicant with no problem; the natural parents appear to have no valid reason to give up their son other than for the purpose of him being able to immigrate to Canada; the sponsors have disregarded the visa officers and appeal judges decision and are attempting to circumvent the law. Therefore, after considering all the information, I am not satisfied that sufficient H & C grounds exist to warrant waiving A9 (1).[4]
[Errors in this quotation are carried forward from the original]
[9] I note here, and I will return to some of these points later in these reasons, that the immigration officer does not acknowledge in the foregoing that the applicant was only seven (7) or eight (8) years of age when he was interviewed by the visa officer in Delhi in 1995 and thirteen (13) years of age when he was interviewed by the immigration officer. Further, while the immigration officer dwells at some length on the adoption process of 1993, the officer does not so much as mention the Ontario adoption in 1999.
The Issues
[10] The issues on this application for judicial review are identified in the Applicant's Memorandum of Argument as the following: first, whether the immigration officer breached the duty of fairness owed by her to the applicant by failing to recognize and give effect to the right to counsel at the humanitarian and compassionate review interview, by limiting the role of counsel at the interview during the time when counsel was present, and in the manner in which she conducted the interview; secondly, whether the immigration officer erred in law by ignoring and misinterpreting the evidence before her in determining that the adoption in Ontario was not a genuine one but one undertaken solely for immigration purposes; and thirdly, whether the immigration officer took into account irrelevant considerations in reaching her decision, including the existence of family members in India when the application was intended to solidify the applicant's relationship with his adoptive parents in Canada, and the circumstances of the breach of provisions of the Immigration Act in the manner in which the applicant came to Canada.
[11] I am satisfied that the first issue regarding right to counsel is not so much an issue of right to counsel as an issue of the appropriate role of counsel or an assistant attending with an applicant at a humanitarian and compassionate grounds interview, and the rights of the interviewing immigration officer to control the interview and conduct it in an effective and efficient manner.
[12] Before turning to the issues identified on behalf of the applicant, I will briefly comment on the appropriate standard of review.
Analysis
1) Standard of Review
[13] In Mann v. Canada (Minister of Citizenship and Immigration)[5], an application pursuant to subsection 114(2) of the Immigration Act for landing from within Canada on humanitarian and compassionate grounds such as this, I wrote at paragraphs [9] and [10]:
[9] It is now well established that the standard of review of decisions such as that here at issue is reasonableness simpliciter. In Canada (Director of Investigation and Research) v. Southam Inc. Mr. Justice Iacobucci wrote at paragraph 56:
I conclude that the third standard should be whether the decision of the Tribunal is unreasonable. This test is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal's decision is patently unreasonable. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the unreasonableness standard must look to see whether any reasons support it.
The standard to which Mr. Justice Iacobucci refers as one of unreasonableness or, conversely, reasonableness, is, I am satisfied, the same standard that is referred to in the Baker decision as reasonableness simpliciter.
[10] In Legault v. Canada (Minister of Citizenship and Immigration), Mr. Justice Décary, for the Court, wrote at paragraph [11]:
In Suresh, the Supreme Court clearly indicates that Baker did not depart from the traditional view that the weighing of relevant factors is the responsibility of the Minister or his delegate. It is certain, with Baker, that the interests of the children are one factor that an immigration officer must examine with a great deal of attention. It is equally certain, with Suresh, that it is up to the immigration officer to determine the appropriate weight to be accorded to this factor in the circumstances of the case. It is not the role of the courts to reexamine the weight given to the different factors by the officers. [emphasis added]
The references in the foregoing quotation to "Suresh" are to Suresh v. Canada (Minister of Citizenship and Immigration). [citations omitted]
[14] I am satisfied that all of the foregoing is relevant and applicable on this application for judicial review.
2) Right to Counsel, Role of Counsel or Assistant, and Conduct of the Interview
[15] Consideration of the applicant's application for landing from within Canada included an interview, notwithstanding that no such interview is required by law, at which the applicant, his litigation guardian who is his adoptive father, his adoptive mother, a family friend who served as translator, and a paralegal serving as "counsel" to the applicant attended. Affidavits of the applicant, his adoptive parents and his "counsel" were filed on this application for judicial review. On behalf of the respondent, an affidavit of the immigration officer who conducted the interview was filed.
[16] The affidavits filed on behalf of the applicant and the immigration officer's affidavit present substantially differing views of what transpired at the interview. None of the affiants was cross-examined on his or her affidavit.
[17] Despite the different perceptions of what transpired during the interview, a common thread runs through all of the affidavits. The paralegal from time to time interrupted during the course of the immigration officer's conduct of the interview with the applicant and his adoptive parents. The immigration officer asked, or told, the paralegal not to interrupt and that she would be provided an opportunity to make submissions at the end of the interview. The immigration officer advised the paralegal that her presence at the interview was a privilege, not a right. The relationship between the immigration officer and the paralegal became very strained. The immigration officer asked the paralegal to leave the interview room and refused to continue to conduct the interview until the paralegal in fact left. While the paralegal was allowed to return to the interview room at the end of the interview, she and the immigration officer present differing perceptions as to whether she was provided an opportunity to make submissions. She certainly was provided the opportunity to file supplementary documentation in connection with the application.
[18] In Charles v. Canada (Minister of Citizenship and Immigration)[6], the Federal Court of Appeal had before it the following certified question:
"On an application for humanitarian and compassionate relief is it a breach of the duty of fairness to deny counsel the right to assist the applicant with his or her responses?"
Mr. Justice Strayer, for the Court, wrote:
From the evidence and the reasons of the learned applications judge we understand the term "assist the applicant with his or her responses" to mean "to pose questions to the applicant or to suggest responses to him or her".
On the basis of this understanding of the question, we are of the opinion that the answer must be "no". Consistently with the jurisprudence of this court we believe that the requirements of fairness are very limited in the processing of requests for special ministerial exemptions from the law under s. 114(2) of the Immigration Act based on humanitarian and compassionate grounds. As no hearing or interview is required it would be surprising that an interview if held were required to take on aspects of a judicial process.
[Emphasis added]
The "jurisprudence of this Court" cited in support of the foregoing quotation is Shah v. Minister of Employment and Immigration[7].
[19] Counsel for the applicant urged that the decision in Charles is impliedly overtaken by the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)[8] where the decision of the Federal Court of Appeal in Shah was disapproved.
[20] At paragraph 32 of the Baker decision, Madam Justice L'Heureux-Dubé found that the circumstances of a "humanitarian and compassionate grounds" application:
...require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.".
But Madam Justice L'Heureux-Dubé continued at paragraph 33:
However, it also cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved.
[21] I am satisfied that the Charles decision has not been overtaken by subsequent jurisprudence. It is clear from the words of Madam Justice L'Heureux-Dubé quoted above that an interview or hearing is not an essential component of the duty of fairness required to be afforded on applications for humanitarian and compassionate relief. Where an interview is afforded, it must be directed to ensuring that the concerned applicant "...and others whose important interests are affected by the decision in a fundamental way.." are given a meaningful opportunity to present their case. But it is the immigration officer's interview, granted at her or his discretion. In such circumstances, it is open to her or him to conduct the interview as she or he sees fit. If in the conduct of the interview the applicant and others whose important interests are affected in a fundamental way are not dealt with fairly, their recourse, whether through counsel or an assistant or otherwise, is through judicial review. It is not through any right of counsel or an assistant present at the interview to "hijack" the interview or otherwise convert the interview into a full-blown quasi-judicial hearing.
[22] On the basis of the conflicting evidence before me, I am satisfied that it was entirely open to the immigration officer who conducted the interview with the applicant and his adoptive parents to determine to exclude the applicant's counsel or assistant from the interview. She was not present as of right. She was not entitled to disrupt the interview as I am satisfied she did. Further, I am not satisfied that the evidence before me demonstrates that the immigration officer breached the duty of fairness in the manner in which she conducted the interview.
(3) The Ontario Adoption
[23] The immigration officer's CAIPS notes cited at length above simply do not acknowledge the Ontario adoption of the applicant by his adoptive parents. While the immigration officer, in her affidavit, deposes that she was conscious of the Ontario adoption and took it into account in reaching her decision, it is worthy of note that that affidavit was sworn after the applicant's Application Record was served and filed and the issue of whether or not the immigration officer ignored the Ontario adoption, as raised on behalf of the applicant, was made known to the immigration officer, or at least to counsel for the respondent.
[24] Counsel for the applicant urged that the immigration officer erred in law, and thus in a reviewable manner, in effectively ignoring the Ontario adoption order and thus in ignoring its impact on the applicant's best interests as a child.
[25] Section 6.10 of Chapter IP-5 of the Immigration Manual[9] reads as follows:
6.10 Known or Suspected Adoption of Convenience
The [Regulation] 2(1) definition of "adopted" lists three criteria for an adoption to be considered valid under the Act. It must:
· be legal in the jurisdiction in which it occurred
· create a genuine relationship of parent and child, and
· not be for the purpose of gaining admission to Canada of the adopted person or of his or her relatives (adoption of convenience).
Paragraph R6(1)(e) dealing with adoptions and the family class repeats the prohibition against adoptions of convenience.
When studying a case for adoption, provincial authorities focus on the suitability of the adoptive parents and not on the foregoing three criteria. Therefore, whether or not provincial approval has been given, you must be satisfied that the three criteria in R2(1) have been met, especially that it is not an adoption of convenience. For example, adoptions where the biological parents of the child are still living should be examined carefully. As well, for adoptions between adults (usually in consideration of inheritance matters), when approved adoption is shown as evidence of a familial relationship, this should be looked at closely. Remember that adoption is just one factor among others to be considered in reaching the H & C decision.
[Emphasis added]
[26] While the foregoing makes it clear that an adoption in accordance with the laws of a province is certainly not determinative for immigration purposes of the adoptive relationship between the adopted child and his or her adopting parents, it is, I am satisfied, a relevant factor to be considered, particularly where the best interests of a child are at issue.
[27] Subsection 136(2) of the OCFSA lists a range of factors to be taken into account in an Ontario adoption proceeding that could be said to relate to the best interests of the child and not merely to the "... suitability of the adoptive parents ...". Certainly that list of factors is broad enough to encompass the circumstances of the applicant including his somewhat unusual relationship, or lack of relationship, with his natural parents, his lack of status in Canada and his relationship with the proposed adoptive parents. Section 157 of the OCFSA provides that an adoption order under that act is final and irrevocable, subject only to appropriate appeals, and further provides that the adoption "... shall not be questioned or reviewed in any court by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, habeas corpus, or application for judicial review." The review of an adoption order in the context of a discretionary process directed to validly enacted immigration law and policy certainly does not fall within the purview of section 157. Subsection 158(2) of the OCFSA, dealing with the status of an adopted child, provides as follows:
(2) for all purposes of law, as of the date of the making of an adoption order,
(a) the adopted child becomes the child of the adoptive parent and the adoptive parent becomes the parent of the adopted child; and
(b) the adopted child ceases to be the child of the person who was his or her parent before the adoption order was made and that person ceases to be the parent of the adopted child, except where the person is the spouse of the adoptive parent,
as if the adopted child had been born to the adoptive parent.
[28] There was, apparently, no evidence before the immigration officer relating to the evidence that was before the judge who granted the Ontario adoption and what considerations, if any, he or she took into account relating to the best interests of the applicant.
[29] I am satisfied that the immigration officer's obligation to "... examine with a great deal of attention"[10] the best interests of the applicant as a child, combined with respect for the laws of a province, validly enacted, and actions taken by appropriately constituted courts pursuant to such legislation, created an onus on the immigration officer to acknowledge the Ontario adoption in the notes that constitute the reasons for her decision and, if she was not satisfied that the information placed before her relating to that adoption was sufficient to allow her to give effective consideration to the best interests of the child as impacted by adoption, an onus lay on the immigration officer to so advise the applicant and to provide a reasonable opportunity for such information to be sought out and provided to the officer. This is emphasized where, as here according to the CAIPS notes, the immigration officer continued to regard the applicant's natural parents as his "parents", notwithstanding subsection 158(2) of the OCFSA.
[30] Here there is simply no evidence whatsoever on the face of the immigration officer's reasons that she gave appropriate consideration to the impact of the Ontario adoption in the context of examining "... with a great deal of attention", the best interests of the applicant. Against the statement of the standard of review on an application such as this reflected earlier in these reasons, I am satisfied that the ignoring of relevant considerations, in this case the full impact of the Ontario adoption, constitutes a reviewable error. This is not to say that, if it were clear on the record before me that appropriate consideration of the Ontario adoption order had been given, the result might not have been the same. It is simply to say that, in the absence of evidence of any such consideration, the decision here under review was made in reviewable error.
(4) Irrelevant Considerations
[31] Counsel for the applicant urged that the immigration officer's CAIPS notes quoted earlier in these reasons demonstrate a taking into account of irrelevant considerations, in particular, the existence of family members in India when the application was for unification of the applicant with his adoptive parents in Canada, and the circumstances of the applicant's illegal entry into Canada. Except as implied in my comments regarding ignoring of the Ontario adoption, I am not satisfied that the immigration officer took into account any irrelevant considerations and, as earlier indicated, the weighing of all relevant considerations was a matter for the immigration officer and not a matter where it would be acceptable for this Court to substitute its own judgment as to an appropriate weighing of those considerations.
Conclusion
[32] Based upon the foregoing analysis, this application for judicial review will be allowed. The decision under review will be set aside and the applicant's application for landing from within Canada on humanitarian and compassionate grounds will be referred back to the respondent for redetermination by a different immigration officer.
Certification of a Question
[33] At the close of the hearing of this application for judicial review, I advised counsel that I would reserve my decision, issue reasons and thereafter provide counsel with an opportunity to make submissions on certification of a serious question of general importance. These reasons will be issued and circulated. Counsel will have fourteen (14) days from the date that these reasons are issued and circulated to counsel to exchange and file submissions on certification of a question. Counsel should ensure that any such submissions are exchanged in a timely manner to allow for responsive submissions, if considered appropriate, within the time here provided.
(Sgd.) "Frederick E. Gibson" Judge
Vancouver, B.C.
June 4, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2187-01
STYLE OF CAUSE: IQBAL SINGH CHEEMA by his Litigation Guardian
JASVIR SINGH CHEEMA
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 24, 2002
REASONS FOR ORDER: GIBSON J.
DATED: JUNE 4, 2002
APPEARANCES:
MS. BARBARA JACKMAN FOR APPLICANT
MR. JAMIE TODD FOR RESPONDENT
SOLICITORS OF RECORD:
JACKMAN, WALDMAN & ASSOCIATES
TORONTO, ON FOR APPLICANT
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA FOR RESPONDENT
[1] R.S.C. 1985, c. I-2
[2] See Cheema v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 907 (F.C.T.D.), online: QL (FCJ).
[3] R.S.O. 1990, c. C.11 (as amended).
[4] Tribunal Record, pages 10 to 17.
[5] 2002 F.C. T. 567, May 16, 2002 (F.C.T.D.).
[6] (1999), 241 N.R. 398 (F.C.A.).
[7] (1994), 21 Imm L.R. (2d) 82 (F.C.A.).
[8] [1999] 2 S.C.R. 817.
[9] Canada, Citizenship and Immigration Canada, Immigration Manual, Inland Processing, Chapter IP-5: Immigration Applications in Canada made on Humanitarian or Compassionate ("H & C") Grounds (Ottawa: Citizenship and Immigration Canada, 2001) at pages 18-19.
[10] Legault, as quoted in Mann, supra, note 5.