It is rare to see a case of adoption of an adult. The Federal Court upheld the denial of citizenship in the case below.
Dubkov v. Canada (Minister of Citizenship and
Immigration)
Between
Luis Antonio Alvarado Dubkov, Applicant, and
Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 710
2014 FC 679
Docket: IMM-4026-13
Federal Court
Toronto, Ontario
St-Louis J.
Heard: May 22, 2014.
Judgment: July 14, 2014.
(46 paras.)
JUDGMENT AND REASONS
ST-LOUIS J.:--
I. INTRODUCTION
1 Mr.
Luis Antonio Alvarado Dubkov is a citizen of Guatemala. In June 2009, he
arrived in Canada as a temporary resident to live with his maternal uncle, Mr.
Chavez, and his family, all Canadian citizens. In Guatemala, Mr. Dubkov had
lived with his mother and relatives until she passed away in January 2009. He
had never lived with his father, and remained in the care of maternal relatives
while in Guatemala after his mother passed away.
2 In
August 2011, having just reached adulthood, Mr. Dubkov was adopted by the
Chavezes who then became his adoptive parents.
3 In
September 2011, Mr. Dubkov applied for Canadian citizenship as the adult
adoptee of Canadian citizens. For his application to succeed, he had to
establish both that there existed a genuine parent child relationship between
him and the Chavezes before he reached the age of eighteen and at the time of
the adoption, and that the adoption was not entered into primarily to gain a
citizenship status or privilege.
4 The
Citizenship Officer refused the application, unsatisfied that the evidence
provided by Mr. Dubkov and his adoptive parents established the existence of a
genuine parent-child relationship at the appropriate time, and unsatisfied that
the adoption was primarily entered into for reasons other than gaining a
citizenship status or privilege.
5 Mr.
Dubkov filed for judicial review asking this Court to set aside the Officer's
decision. He argues that the relationship between him and the Chavezes met the
requirements and that the Officer did not consider the facts and the evidence
and thus reached unreasonable conclusions. The respondent argues that the
decision is reasonable, that the Officer found the evidence insufficient, and
points out that the Chavezes provided no affidavit to support Mr. Dubkov's
position before this Court.
6 The
questions raised in this case pertain to the evaluation of the facts and
evidence by the Officer and I concur with the parties that the applicable
standard of review is that of reasonableness. In that context, considerable
deference must be accorded to the Officer's decision and the Court will grant
relief if it finds the decision was made in a perverse or capricious manner or
without regard to the material before her. The decision will be reasonable if
it falls within the possible outcomes given the facts and the law and provides
sufficient transparency, intelligibility and justification (Dunsmuir v New Brunswick, 2008 SCC 9 at para
47).
7 The
Court finds that the Officer's decision is reasonable for the reasons set out
below.
II. CONTEXT: CANADIAN CITIZENSHIP AS AN ADULT
ADOPTEE
8 At
the heart of Mr. Dubkov's case is the possibility for the adult adoptee of
Canadian citizens to apply for Canadian citizenship. Section 5.1(2) of the Citizenship Act, RSC 1985, c C-29 outlines
the requirements an applicant must meet in order to succeed, two of which are
relevant in this case, namely:
·
1.
There must be a genuine
relationship of parent and child between the person and the adoptive parent
before the person attained the age of eighteen years and at the time of the
adoption; and
·
2.
The adoption must not
have been entered into primarily for the purpose of acquiring a status or
privilege in relation to immigration or citizenship.
9 In
turn, the Citizenship Regulations, SOR/93-246 outline the factors to consider in determining if these
requirements have been met. They include the examination of whether or not the
pre-existing legal parent-child relationship was permanently severed by the
adoption.
10 These
provisions are reproduced in the Annex to these Reasons.
III. QUESTIONS
11 This
judicial review raises the three following questions:
·
(1)
Did the Officer err in
finding that Mr. Dubkov failed to establish the existence of a genuine parent-child
relationship with the Chavezes before the age of eighteen and at the time of
adoption?
·
(2)
Did the Officer err in
finding that Mr. Dubkov failed to satisfy her that the applicant's adoption was
not entered into primarily for a citizenship or immigration status or
privilege?
·
(3)
Did the Officer fail to
consider evidence presented by the Chavezes or provide adequate reasons?
III. POSITION OF THE PARTIES AND ANALYSIS
·
Question 1: Did the Officer err
in finding that Mr. Dubkov failed to establish the existence of a genuine
parent-child relationship with the Chavezes before the age of eighteen and at
the time of adoption?
·
(a)
Mr. Dubkov's
submissions
12 Mr.
Dubkov argues that the Officer's finding that he had a parent-child
relationship with his birth father is unreasonable. He rather submits that his
relationship with his birth father was not "typical" as the Officer
characterized it, but on the contrary, that his birth father was largely absent
and contented to play merely a peripheral role in his life, even after the
death of his mother. Further, the fact that Mr. Dubkov's birth father had a
minor ongoing relationship with him does not mean that the pre-existing legal
parent-child relationship was not permanently severed by the adoption (Adejumo v Canada (Minister of Citizenship and Immigration), 2011 FC 1485 at paras 12-14, citing the Citizenship and
Immigration Canada [CIC] Operation Bulletin 183).
13 Mr.
Dubkov argues that the Officer's reliance on the fact that he did not call the
Chavezes "mom" and "dad" was unreasonable. He submits that
the evidence had been that he did not feel comfortable calling them "mom"
and "dad" in Spanish, as he had grown up referring to them as
"aunt"and "uncle", but he did call them "mom" and
"dad" when speaking in English.
14 Mr.
Dubkov submits that the Court has laid out non-exhaustive factors to be
considered in assessing the genuineness of a parent-child relationship in Buenavista v Canada (Minister of Citizenship and Immigration), 2008 FC 609 at para 8 [Buenavista] and that the Officer failed to consider these factors. He argues
that an analysis of these factors point toward a genuine parent-child
relationship between himself and the Chavezes, and that without considering
these factors, the Officer's decision lacked transparency, intelligibility and
justification (citing Davis v Canada (Minister of
Citizenship and Immigration), 2013 FC 1243 at paras
9-11 [Davis]).
·
(b)
Respondent's
submissions
15 The
respondent argues that the Officer's findings are reasonable. Mr. Dubkov's
birth father did have an ongoing relationship with him, and it was open to the
Officer to conclude that it was a parent-child relationship. Even non-custodial
parents can have parent-child relationships with their children, and there is
no one "typical" parent-child relationship.
16 Mr.
Dubkov's contention that the Officer misunderstood his evidence regarding his
being uncomfortable calling the Chavezes "mom" and "dad"
only in Spanish is just that -- a contention, without support in the evidence.
17 Further,
the Buenavista factors are
merely non-exhaustive factors. The key question is whether the decision is
reasonable, not whether the Officer went through a list of factors. The Court
should not rely on Davis because
it is currently before the Federal Court of Appeal.
·
(c)
Analysis
18 The
Officer's determination that the Chavezes did not have a genuine parent-child
relationship with the applicant before age eighteen and at the time of the
adoption is a finding of fact. The Court must afford significant defence to the
Officer's factual findings, particularly where, as here, the determination
falls within the core of the decision-maker's expertise. As such, Mr. Dubkov
must show that the Officer's determination was made "in a perverse or capricious
manner or without regard to the material before it" (Federal Courts Act, RSC 1985, c F-7, s
18.1(4)(d)).
19 The
onus is on Mr. Dubkov to provide evidence that a genuine parent-child
relationship existed at the relevant time, that is, to show that the Chavezes
had, not only legally, but practically, taken on the role of parents in the
applicant's life (Rai v Canada (Minister of Citizenship and Immigration),
2014 FC 77 at para 21).
20 The
Officer's reasons for finding that there was no such relationship are far from
perfect. Her first reason is that she found that Mr. Dubkov had a typical
parent-child relationship with his birth father. While I would not necessarily
characterize the relationship between Mr. Dubkov and his birth father as a "typical"
parent-child relationship, or at least not as an ideal one, the relevant
question is not whether the reviewing court would have come to a different
conclusion, but rather whether, in light of the record, the finding was
unreasonable.
21 However,
I need not address the reasonableness of this first finding because the Officer
provides a second reason for finding there was no such genuine parent-child
relationship: she found that Mr. Dubkov's relationship with the Chavezes was
akin to a typical uncle/aunt-nephew relationship. While she does not provide a
fulsome analysis to support this finding, the record reveals that the Officer's
determination on this point was reasonable.
22 First,
there is some inconsistency in the applicant's evidence with respect to the
nature of the relationship between the Chavezes and Mr. Dubkov before he moved
to Canada. He testified that after the death of his mother, the Chavezes kept
in touch with him through phone and email, but it was infrequent, irregular
contact. In contrast, the Chavezes testified that there was constant, regular
contact. Mr. Dubkov and the Chavezes have provided minimal evidence
substantiating their pre-Canada relationship. The Chavezes testified that they
saw Mr. Dubkov three to four times during various visits to Guatemala, but it
appears that only one of these visits took place after the death of his birth
mother. The Chavezes also testified that they provided financial assistance to
Mr. Dubkov after the death of his birth mother, but there is no documentary
evidence to support this. In other words, the record does not clearly support
the conclusion that prior his move to Canada; the Chavezes played a parental
role in Mr. Dubkov's life.
23 Second,
even for the period after he moved to Canada in 2009, Mr. Dubkov has not
provided significant documentary evidence to substantiate that the Chavezes'
care for him rose to the level of a genuine parent-child relationship. While it
is evident from the interview notes that the Chavezes care for Mr. Dubkov very
much and have apparently provided for and supported him throughout his time in
Canada (and the Officer acknowledges as much in her decision), the applicant's
burden is to demonstrate not merely that his adoptive parents cared for and
supported him, but rather that there was a genuine parent-child relationship.
Given the dearth of documentary evidence to that effect, the Officer's
conclusion that the Chavezes' relationship with Mr. Dubkov was akin to that of
an uncle and aunt rather than parents is not perverse or capricious or
unfounded on the basis of the record.
24 The
fact that the Officer did not engage in a thorough analysis of the record or
meticulously break down her reasoning does not render her decision
unreasonable. The Supreme Court has held that in assessing the reasonableness
of a decision, "the reasons must be read together with the outcome and
serve the purpose of showing whether the result falls within a range of
possible outcomes" (Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 14 [Newfoundland Nurses]). While the Court
"should not substitute [its] own reasons", it may, if necessary,
"look to the record for the purpose of assessing the reasonableness of the
outcome" (Newfoundland Nursesat para 15). Indeed, even where the decision-maker's reasons
"do not seem wholly adequate to support the decision, the court must first
seek to supplement them before it seeks to subvert them" (Newfoundland Nurses at para 12). These
principles have been followed and applied in a number of cases (see e.g. Andrade v Canada (Minister
of Citizenship and Immigration), 2012 FC 1490 at paras
7-13 [Andrade]; Persaudv Canada (Minister
of Citizenship and Immigration), 2012 FC 274 at para
15; Rahal v Canada (Minister of Citizenship and Immigration),
2012 FC 319 at paras 30-31).
25 Therefore,
the Officer was not required to provide a detailed account of the evidence or
explain her entire thought process in her reasons.
26 Mr.
Dubkov argues that the Officer should have gone through the factors articulated
in Buenavista and that her
failure to do so was unreasonable. I disagree. Just because the Officer did not
expressly work through that list does not mean she failed to consider the
substance of the relevant factors listed therein.
27 Since
the record supports the Officer's determination, it was not made in a perverse
or capricious manner or without regard to the material before her. The
Officer's finding that there was not a genuine parent-child relationship is
therefore reasonable and should not be disturbed.
·
Question 2: Did the Officer err
in finding that Mr. Dubkov failed to satisfy her that his adoption was not
entered into primarily for a citizenship or immigration status or privilege?
·
(a)
Mr. Dubkov's
submissions
28 The
Officer found that the reasons Mr. Dubkov and the Chavezes entered into the
adoption were, "besides for the purpose of belonging to a family, a better
education, economic gains and a better quality of life in Canada". Mr.
Dubkov argues that it was unreasonable for the Officer to find that these
ancillary benefits overrode the situation surrounding his adoption, which point
to a genuine parent-child relationship. He submits that nothing about the
adoption suggests it was a sham or done in bad faith.
29 The
Officer also failed to consider CIC's operational manual Citizenship Policy 14
-- Adoptions [the CP14 Guidance Document], which provides guidance on assessing
whether adoptions are genuine. Mr. Dubkov submits that the majority of the
factors listed therein indicate that his adoption was not entered into
primarily for a citizenship benefit purpose. This Court has previously set
aside a decision for failing to take into account the CP14 Guidance Document (Tran v Canada (Minister of Citizenship and Immigration), 2012 FC 201).
·
(b)
Respondent's
submissions
30 The
respondent submits that the Officer's finding was reasonable because, although
the Officer recognized that part of the reason for adoption was to provide Mr.
Dubkov with a sense of belonging, Mr. Dubkov and the Chavezes also stated it
was to obtain the benefits of citizenship, such as a better education, economic
gains, and a better quality of life.
31 The
respondent also notes that when the adoption occurred, Mr. Dubkov was already
an adult, and so the adoption had very limited legal significance, and also had
no effect on the personal relationship between the applicant and the Chavezes.
32 The
respondent further submits that Mr. Dubkov, who bears the burden of proof,
needed to show that he would have proceeded with the adoption even if there was
no chance of obtaining a citizenship benefit. He has not done so.
·
(c)
Analysis
33 The
Officer's determination that the adoption was entered into primarily for the
purpose of acquiring a citizenship privilege is also a factual finding to be
afforded significant deference. Her reasoning in support of this finding was
that, in addition to the purpose of belonging to a family, Mr. Dubkov and the
Chavezes indicated that the adoption took place so that Mr. Dubkov could have
"a better education, economic gains and a better quality of life in
Canada".
34 This
sparse reasoning leaves much to be desired. However, a review of the record
supports the reasonableness of the Officer's finding, for at least two reasons.
35 First,
Mr. Dubkov has provided no documentary evidence showing any urgency or
motivation to complete the adoption process before Mr. Dubkov turned eighteen,
even though it appears he had no status in Canada for some time. While Mr.
Dubkov attached a copy of an "Affidavit of Adoption Applicants" form,
sworn by the Chavezes on August 5, 2009, there is no indication that this is
the form which initiated the adoption that was ultimately granted after the
applicant turned eighteen. There is also no evidence that the Chavezes or Mr.
Dubkov were pressuring or urging his birth father to sign the consent form,
which he ultimately did on June 12, 2011. During the interview, the Chavezes
testified that they did not adopt Mr. Dubkov right away because they wanted to
give him the chance to see if he liked living with their family in Canada. The
record therefore does not show that Mr. Dubkov and the Chavezes were
particularly eager to complete the adoption before he turned eighteen, after
which adoption becomes a much simpler matter.
36 Second,
the record suggests that the costs of Mr. Dubkov's post-secondary education may
have been a strong motivating factor for obtaining citizenship. Mr. Dubkov
graduated high school in 2012 with good marks, but was accepted to university
for the 2013-14 academic year, rather than the 2012-13 year. There is no
indication as to why the applicant did not proceed to university in the year
that he graduated. The Court asked the applicant's counsel at the hearing
whether Mr. Dubkov was currently attending university, counsel was unable to
provide an answer. Further, at the interview, the Chavezes stated that they
were not prepared to pay for Mr. Dubkov to go to university as a foreign
student because foreign student fees are much higher as compared to those for
permanent residents or citizens.
37 As
discussed above, the Officer was not required to address every point in the
evidence in her reasons. As her determination finds support in the record, it
cannot be said to have been made in a perverse or capricious manner, or without
regard to the record. It is therefore reasonable.
38 I
wish to briefly address Mr. Dubkov's argument that the decision was
unreasonable because the Officer failed to follow the CP14 Guidance Document. A
similar argument was made before my colleague, Justice Phelan, in Kaur v Canada (Minister
of Citizenship and Immigration), 2013 FC 1177. I find
his holding at para 16 of that decision to be apposite in this case as well:
·
I see no legal infirmity in the
decision nor do I accept that the Officer ignored the departmental Guidelines.
Not only are these Guidelines simply that, guidelines where not every factor
must be addressed, but the Officer fully addressed all the relevant points in
those Guidelines.
39 For
these reasons, the Officer's determination that Mr. Dubkov had failed to show
that his adoption did not take place primarily for the purpose of obtaining a
status or privilege relating to immigration or citizenship was reasonable, and
should not be disturbed.
·
Question 3: Did the Officer fail
to consider evidence presented by the Chavezes or provide adequate reasons?
·
(a)
Mr. Dubkov's
submissions
40 Mr.
Dubkov submits that the Officer failed to consider the evidence of the Chavezes
in determining the genuineness of the parent-child relationship. Further, the
Officer repeatedly refers to the Chavezes as his aunt and uncle, when they are
in fact his adoptive parents, suggesting that the Officer was set on regarding
them as aunt and uncle, not as his parents.
41 Mr.
Dubkov argues that the lack of reasons for the Officer's apparent rejection of
the Chavezes evidence amounts to a reviewable error.
·
(b)
Respondent's
submissions
42 The
respondent notes that the Chavezes have not submitted any affidavit evidence on
this application. It is therefore disingenuous for Mr. Dubkov to contest the
Officer's factual findings or her assessment of the evidence.
43 Further,
the Supreme Court has clarified that adequacy of reasons is not a stand-alone
procedural ground for quashing a decision. Rather, the adequacy of the reasons
must be analyzed in conjunction with the reasonableness of the outcome (Newfoundland Nurses at paras 20-22). As the
decision as a whole is reasonable, the attack the adequacy of the reasons
cannot succeed.
·
(c)
Analysis
44 As
discussed above, the adequacy of reasons is not a stand-alone ground for
overturning a decision, and the Officer was not required to expressly address
every piece of evidence before her. The decision-maker is presumed to have read
all the evidence before her (Andrade at para 11; Guevara v Canada (Minister of Citizenship and Immigration), 2011 FC 242 at para 41; Ayala v Canada (Minister of Citizenship and Immigration), 2007 FC 690 at para 23). Just because the Officer did not
specifically mention the Chavezes' testimony does not mean she did not consider
it and weigh it appropriately. Mr. Dubkov provided minimal documentary evidence
to corroborate the statements of the Chavezes, and, as the respondent notes,
the Chavezes themselves have not filed an affidavit in this application. There
is therefore no indication that the Officer missed a crucial piece of
documentation that ran contrary to her conclusions. I therefore reject the
applicant's arguments on this point.
45 Mr.
Dubkov's complaint about the Officer's use of "aunt and uncle" when
referring to the Chavezes appears to be a thinly veiled allegation of bias.
There is no merit to this allegation.
V. CONCLUSION
46 For
the above reasons, Mr. Dubkov's application for judicial review is dismissed.
JUDGMENT
THIS COURT'S JUDGMENT is that:
·
1.
This application for
judicial review is dismissed.
ST-LOUIS J.
