Digests

Cheema v. Canada (Minister of Citizenship and Immigration)

IMM-2187-01

2002 FCT 638, Gibson J.

4/6/02

16 pp.

Judicial review of immigration officer's denial of application for leave to apply for landing from within Canada on humanitarian and compassionate grounds--Applicant born in India in 1987--Litigation guardian, also born in India, now Canadian citizen--In 1993 adoption ceremony performed in India, adoption deed registered, litigation guardian filed undertaking of assistance to sponsor applicant's entrance to Canada as adopted son--Application for visa rejected-- Applicant continued to live in India with grandparents, although visited parents regularly--In 1998 applicant arriving in Canada illegally--In 1998 adoption order issued in Ontario --Immigration officer's CAIPS notes indicating requested applicant's counsel to leave as constant interruptions disruptive--Applicant interviewed without counsel (paralegal) present--Finding adoption not genuine, but not mentioning Ontario adoption--Application allowed--Standard of review reasonableness simpliciter--(1) As not required, interview, if held, not required to take on aspects of judicial process: Charles v. Canada (Minister of Citizenship and Immigration) (1999), 241 N.R. 398 (F.C.A.)--Charles not overtaken by subsequent case law, including Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817-- L'Heureux-Dubé J. in Baker clearly indicating interview or hearing not essential component of duty of fairness required on applications for humanitarian and compassionate relief-- Where interview afforded, must be directed to ensuring applicant, others whose important interests affected by decision in fundamental way given meaningful opportunity to present case--But open to immigration officer to conduct interview as sees fit--Open to immigration officer to exclude applicant's counsel from interview--No breach of duty of fairness in manner in which interview conducted--(2) While adoption in accordance with provincial laws not determinative of adoptive relationship between adoptive child, adopting parents for immigration purposes, it is relevant factor to be considered, particularly where best interests of child at issue--Ontario Child and Family Services Act (OCFSA), s. 136(2) listing factors to be considered in Ontario adoption proceeding--Relate to best interests of child, not merely to suitability of adoptive parents--List of factors broad enough to encompass applicant's circumstances, including relationship with natural parents, lack of status in Canada, relationship with proposed adoptive parents--S. 157 providing adoption order under OCFSA final, irrevocable, subject only to appropriate appeals, and that adoption shall not be reviewed in any court--Review or adoption order in context of discretionary process directed to validly enacted immigration law, policy not within purview s. 157--No evidence before immigration officer relating to evidence before judge who granted Ontario adoption and what considerations, if any took into account relating to best interests of applicant--Immigration officer's obligation to examine "with a great deal of attention" best interests of child, combined with respect for laws of province, validly enacted, actions taken by appropriately constituted courts pursuant to such legislation, creating onus on immigration officer to acknowledge Ontario adoption in notes constituting reasons for decision; and, if not satisfied information before her relating to adoption sufficient to permit effective consideration of best interest of child as impacted by adoption, onus on immigration officer to so advise applicant, provide reasonable opportunity for such information to be provided--In absence of evidence on face of reasons immigration officer gave appropriate consideration to impact of Ontario adoption in context of examining "with a great deal of attention" best interests of applicant, decision made in reviewable error--(3) Immigration officer not taking into account irrelevant considerations--Weighing of all relevant information matter for immigration officer--Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 136(2), 157.