Asad et al. v. Canada (Minister of Citizenship and Immigration), (2015) 474 N.R. 258 (FCA)

• Judge: Stratas, Scott and Boivin, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 06, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 474 N.R. 258 (FCA);2015 FCA 141

Asad v. Can. (M.C.I.) (2015), 474 N.R. 258 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2015] N.R. TBEd. JN.015

Owais Ahmed Asad and Rahim Ahmed (appellants) v. The Minister of Citizenship and Immigration (respondent)

(A-455-14; 2015 FCA 141; 2015 CAF 141)

Indexed As: Asad et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Stratas, Scott and Boivin, JJ.A.

June 9, 2015.

Summary:

The applicants applied under s. 18.1 of the Federal Courts Act for judicial review of a decision of a delegate of the Minister of Citizenship and Immigration which refused to grant citizenship to the minor applicant, the adopted child of the parent applicant, under s. 5.1(1) of the Citizenship Act. The applicants disputed the officer's finding that the adoption was not in accordance with the laws of Pakistan on seven grounds.

The Federal Court, in a decision reported at (2014), 464 F.T.R. 293, dismissed the application. The applicants appealed.

The Federal Court of Appeal dismissed the appeal.

Aliens - Topic 2562

Naturalization - Appeals and judicial review - Scope of - [See first Aliens - Topic 2606 ].

Aliens - Topic 2606

Naturalization - Right to citizenship - Child adopted by Canadian parent - The Federal Court stated that "The jurisprudence of this Court has established that an Officer's assessment of whether an adoption is in accordance with foreign law is reviewed at a standard of reasonableness" - On appeal, the Federal Court of Appeal noted that two recent Federal Court cases had ruled that determinations regarding the content of foreign law were to be reviewed on a correctness standard - Given, the unsettled jurisprudence, the court applied a Dunsmuir analysis to determine the standard of review - The court found, as did the trial judge, that the applicable standard of review was reasonableness - Deference was owed to officers who considered foreign law, including when they did so in the context of alleged adoptions under s. 5.1 of the Citizenship Act - See paragraphs 10 to 32.

Aliens - Topic 2606

Naturalization - Right to citizenship - Child adopted by Canadian parent - The applicants applied for judicial review of a refusal to grant citizenship to the minor applicant, the adopted child of the parent applicant, under s. 5.1(1) of the Citizenship Act - The minor applicant was a Muslim citizen of Pakistan - The applicants disputed the Officer's finding that the adoption was not in accordance with Pakistani laws on seven grounds - The Federal Court dismissed the application - As the reasons made clear, the application for Canadian citizenship was rejected because "... no adoption as it is understood in Canada or under the framework provided by Hague Convention on Protection of Children and Co-operation in Respect of Interlocutory Adoption has taken place." - Using his own knowledge of Pakistani law, regarding adoption as it related to the acquisition of immigration status in Canada, and the lack of refutatory evidence from the applicants, the Officer made it clear that: "Under Pakistan's Muslim Family Law Ordinance, 1961 or Sharia Law, there is no provision for adoption. The Muslim Family Law Ordinance, 1961 provides for a guardianship known as kafala. Kafala being a form of guardianship, is not an adoption, and is commonly viewed as a commitment to take charge of the needs, upbringing and protection of a minor child and does not create permanent parent-child relationship [sic]..." - If adoption was possible in Pakistan as it was understood under the Hague Convention, the applicants could easily have settled this point with appropriate evidence (e.g., an opinion by a qualified expert on the law or laws of adoption in Pakistan and how they had complied) - Instead they chose to challenge the decision after the fact by suggesting in various indirect ways why the officer was either wrong or unreasonable - The applicants appealed - The Federal Court of Appeal applied a reasonableness standard and dismissed the appeal - See paragraphs 33 to 39.

Cases Noticed:

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 10].

Saini v. Canada (Minister of Citizenship and Immigration), [2002] 1 F.C. 200; 278 N.R. 127; 2001 FCA 311, refd to. [para. 15].

Canada (Minister of Citizenship and Immigration) v. Sharma, [2004] F.T.R. Uned. A84; 2004 FC 1069, refd to. [para. 16].

Lakhani v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 432; 2007 FC 674, refd to. [para. 16].

Lai v. Canada (Minister of Citizenship and Immigration), [2008] 2 F.C.R. 3; 307 F.T.R. 1; 2007 FC 361, refd to. [para. 16].

Tindungan v. Canada (Minister of Citizenship and Immigration), [2014] 3 F.C.R. 275; 426 F.T.R. 200; 2013 FC 115, refd to. [para. 16].

Boachie v. Canada (Minister of Citizenship and Immigration) (2010), 370 F.T.R. 265; 2010 FC 672, refd to. [para. 17].

Bhagria v. Canada (Minister of Citizenship and Immigration) (2012), 417 F.T.R. 74; 2012 FC 1015, refd to. [para. 17].

Cheshenchuk v. Canada (Minister of Citizenship and Immigration) (2014), 446 F.T.R. 1; 2014 FC 33, refd to. [para. 17].

Vasquez v. Canada (Minister of Citizenship and Immigration) (2014), 461 F.T.R. 105; 2014 FC 782, refd to. [para. 17].

Dolker v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 60; 2015 FC 124, refd to. [para. 17].

Kim v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 452; 2010 FC 720, overruled [para. 18].

Dufour v. Canada (Minister of Citizenship and Immigration) (2013), 430 F.T.R. 110; 2013 FC 340, overruled [para. 18].

Dufour v. Canada (Minister of Citizenship and Immigration) (2014), 465 N.R. 173; 2014 FCA 81, refd to. [para. 18].

Dunsmuir v. New Brunswick - see New Brunswick (Board of Management) v. Dunsmuir.

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, appld. [para. 19].

Canada (Attorney General) v. Delios (2015), 472 N.R. 171; 2015 FCA 117, refd to. [para. 28].

Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5; 425 N.R. 22; 316 B.C.A.C. 1; 537 W.A.C. 1; 2012 SCC 2, refd to. [para. 28].

Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al., [2012] 1 S.C.R. 364; 428 N.R. 107; 316 N.S.R.(2d) 1; 1002 A.P.R. 1; 2012 SCC 10, refd to. [para. 28].

McLean v. British Columbia Securities Commission (2013), 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 28].

Farwaha v. Canada (Minister of Transport, Infrastructure and Communities) (2014), 455 N.R. 157; 2014 FCA 56, refd to. [para. 30].

Kent Trade and Finance Inc. et al. v. JPMorgan Chase Bank et al., [2009] 4 F.C.R. 109; 388 N.R. 39; 2008 FCA 399, refd to. [para. 32].

General Motors Acceptance Corp. of Canada Ltd. v. Town and Country Chrysler Ltd. et al. (2007), 232 O.A.C. 168; 2007 ONCA 904, refd to. [para. 32].

Massey v. Canada (Citizenship and Immigration), [2010] I.A.D.D. No. 820, dist. [para. 34].

Statutes Noticed:

Citizenship Act, R.S.C. 1985, c. C-29, sect. 5.1 [para. 7].

Authors and Works Noticed:

United Nations, United Nations Committee on the Rights of the Child: Second Periodic Reports of States Parties Due in 1997, Pakistan (April 11, 2003), CRC/C/65/ Add.21, online: Refworld http://www.refworld.org/docid/45377e700.html, generally [para. 38].

Counsel:

David Matas, for the appellants, Owais Ahmed Asad and Rahim Ahmed;

Nalini Reddy and Brendan Friesen, for the respondent, The Minister of Citizenship and Immigration.

Solicitors of Record:

David Matas, Winnipeg, Manitoba, for the appellants, Owais Ahmed Asad and Rahim Ahmed;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, The Minister of Citizenship and Immigration.

This appeal was heard at Winnipeg, Manitoba, on May 6, 2015, by Stratas, Scott and Boivin, JJ.A., of the Federal Court of Appeal. Boivin, J.A., delivered the following decision for the court on June 9, 2015.