Dufour v. Canada (Minister of Citizenship and Immigration), (2014) 465 N.R. 173 (FCA)

• Judge: Gauthier, Trudel and Mainville, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: January 15, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 465 N.R. 173 (FCA);2014 FCA 81

Dufour v. Can. (M.C.I.) (2014), 465 N.R. 173 (FCA)

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[French language version follows English language version]

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

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Temp. Cite: [2014] N.R. TBEd. AP.007

Ministre de la Citoyenneté et de l'Immigration (appelant) v. Burou Jeanty Dufour (intimé)

(A-155-13; 2014 FCA 81; 2014 CAF 81)

Indexed As: Dufour v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Gauthier, Trudel and Mainville, JJ.A.

April 1, 2014.

Summary:

Dufour was adopted in Haiti by a Canadian citizen. Sponsored by his adoptive father, he was granted permanent resident status in Canada in February 2004. The Court of Quebec recognized the adoption judgment that had been rendered in Haiti. Dufour's initial citizenship application was filed too early and he neglected to submit a new application. He was convicted of various criminal offences. A removal order was made against him. The Immigration Appeal Division of the Immigration and Refugee Board stayed the removal order for five years. Dufour applied for Canadian citizenship as a person adopted by a Canadian citizen after 1947 (Citizenship Act, s. 5.1). He was convicted of another series of criminal offences. The Immigration Appeal Division found that the stay was cancelled by operation of law and the appeal was terminated. Dufour applied for judicial review, challenging the constitutional validity of the "automatic" cancellation of the stay under s. 68(4) of the Immigration and Refugee Protection Act.

The Federal Court, in a decision reported at 412 F.T.R. 52, dismissed the application. Meanwhile, on July 21, 2010, Citizenship and Immigration Canada (CIC) notified Dufour that a "positive decision" regarding his s. 5.1 citizenship application had been made. On July 28, 2011, CIC advised Dufour that his s. 5.1 application was still in process. On March 16, 2012, a citizenship officer refused the s. 5.1 application on the basis that Dufour had been unable to establish that he met the requirements of the Act. Dufour applied for judicial review.

The Federal Court, in a decision reported at 430 F.T.R. 110, allowed the application, set aside the officer's decision and remitted the matter for redetermination. The Minister of Citizenship and Immigration appealed.

The Federal Court of Appeal dismissed the appeal.

Aliens - Topic 2562

Naturalization - Appeals and judicial review - Scope of appeal or review - Dufour was born in Haiti - He applied for Canadian citizenship as a person adopted by a Canadian citizen after 1947 (Citizenship Act, s. 5.1) - A citizenship officer denied the application - Dufour applied for judicial review - The application's judge stated that generally the reasonableness standard applied, but that the correctness standard applied to the interpretation of domestic and foreign adoption law - The judge allowed the application - The Minister of Citizenship and Immigration appealed, asserting that the judge erred in applying the correctness standard to the interpretation of the Act - The Federal Court of Appeal stated that it was clear that the judge did not apply the correctness standard to the interpretation of the Act, but applied it to the officer's interpretation of Quebec adoption law and of Haitian law where there was a Haitian adoption judgment whose authenticity was unchallenged - The judge correctly concluded that the correctness standard applied to the interpretation of Quebec adoption law and the effect of a Quebec judgment recognizing the Haitian adoption - As for the Act's interpretation, particularly the application of s. 5.1(1) to adoptions made by a citizen who was subject to Quebec legislation, the parties agreed that the issue was not "very relevant", since the officer's errors, if any, were in the application of s. 5.1(3) - However, it was important to consider the issue so that the judge's interpretation on the point did not govern future cases - It was the judge that decided the question of law, not the citizenship officer - Therefore, the usual correctness standard applied to questions involving the scope of s. 5.1(1) - Further, the court had recently held that the correctness standard applied to a similar question of law that was decided by an officer - As held by the judge, the reasonableness standard applied to questions of fact and questions of mixed fact and law such as whether there was an adoption of convenience contrary to s. 5.1(3)(b) - See paragraphs 25 to 30.

Aliens - Topic 2606

Naturalization - Right to citizenship - Child adopted by Canadian parent - Dufour was adopted in Haiti by a Canadian citizen - Sponsored by his adoptive father, he was granted permanent resident status in Canada - A Quebec court recognized the foreign adoption judgment - Dufour was convicted of various criminal offences - A removal order was issued - The Immigration Appeal Division (IAD) of the Immigration and Refugee Board stayed the removal order - Dufour applied for citizenship as a person adopted by a Canadian citizen after 1947 (Citizenship Act, s. 5.1) - He was convicted of another series of criminal offences - The stay was cancelled by operation of law and the appeal was terminated - A citizenship officer refused the application on the basis that Dufour had not met the requirements of s. 5.1 - The applications judge quashed the decision - The Federal Court of Appeal dismissed an appeal - Contrary to the applications judge's decision, only s. 5.1(3) (i.e., not s. 5.1(1)) applied when a child was adopted by a citizen subject to the laws of Quebec - Further, contrary to the judge's decision, the Minister of Citizenship and Immigration could not disregard the requirement in s. 5.1(3)(a) that "... the Quebec authority responsible for international adoptions advises, in writing, that in its opinion the adoption meets the requirements of Quebec law governing adoptions ..." - Here the responsible authority was the Quebec international adoption secretariat (SAI) - In the circumstances, the SAI's task was limited to verifying whether the Quebec judgment submitted to the officer was authentic and final, and the court that rendered it had jurisdiction to do so - However, it was unreasonable for the officer to deny the application on the basis that the SAI had not advised her of its opinion on the adoption - The little effort made by the officer to obtain an answer made this even more unacceptable - It was also unacceptable that the officer disclosed in her letter to the SAI irrelevant facts such as Dufour's criminality and the removal order - Given the lack of response from the SAI, the officer should have assessed the matter in light of the final Quebec judgment - An applicant could not be held responsible for, or be penalized by, a lack of diligence on the part of the officer or the SAI - See paragraphs 31 to 51.

Aliens - Topic 2606

Naturalization - Right to citizenship - Child adopted by Canadian parent - Dufour was adopted in Haiti by a Canadian citizen - Sponsored by his adoptive father, he was granted permanent resident status in Canada - A Quebec court recognized the foreign adoption judgment - Dufour was convicted of various criminal offences - A removal order was issued - The Immigration Appeal Division (IAD) of the Immigration and Refugee Board stayed the removal order - Dufour applied for citizenship as a person adopted by a Canadian citizen after 1947 (Citizenship Act, s. 5.1) - He was convicted of another series of criminal offences - The stay was cancelled by operation of law and the appeal was terminated - A citizenship officer refused the application on the basis that Dufour had not met the requirements of s. 5.1 - The applications judge quashed the decision - The Federal Court of Appeal dismissed an appeal - Under s. 5.1(3)(b), the Minister of Citizenship and Immigration could determine that an otherwise legal adoption was entered into primarily for the purpose of acquiring a status or privilege in relation to immigration or citizenship - However, appropriate weight had to be given to judicial decisions, if any - As Dufour's adoption was approved by a Quebec court, it had to be proved that the Quebec judgment was obtained by fraud against the legal system - That was a very high standard - If there was a true intention to create a parent-child relationship and that relationship was in the child's best interests, it could not normally be concluded that the adoption was entered into primarily to create a status or a privilege in relation to immigration or citizenship - Even if there was no Canadian court judgment certifying the adoption's lawfulness, there had to be clear evidence that it was an adoption of convenience - There was no tangible evidence that allowed the officer to infer malicious intent on Dufour's part or that the Quebec judgment had been obtained fraudulently - See paragraphs 52 to 71.

Aliens - Topic 2606

Naturalization - Right to citizenship - Child adopted by Canadian parent - Dufour was adopted in Haiti by a Canadian citizen - Sponsored by his adoptive father, he was granted permanent resident status in Canada - A Quebec court recognized the foreign adoption judgment - Dufour was convicted of various criminal offences - A removal order was issued - The Immigration Appeal Division (IAD) of the Immigration and Refugee Board stayed the removal order - Dufour applied for citizenship as a person adopted by a Canadian citizen after 1947 (Citizenship Act, s. 5.1) - He was convicted of another series of criminal offences - The stay was cancelled by operation of law and the appeal was terminated - A citizenship officer refused the application on the basis that Dufour had not met the requirements of s. 5.1 - The applications judge quashed the decision - The Federal Court of Appeal dismissed an appeal - In discussing irrelevant considerations, the court noted that the officer had contacted the Canadian mission in Haiti to authenticate the Haitian adoption judgment - The officer did not seem to consider that a Quebec court had already reviewed the relevant provisions of Haitian law and had concluded that the rules regarding consent to the adoption and eligibility for adoption were followed - Once recognized by the Quebec court, the Haitian judgment produced the same effect as an adoption judgment rendered in Quebec from the time the decision granting the adoption was pronounced in Haiti - See paragraphs 72 and 73.

Cases Noticed:

Society of Composers, Authors and Music Publishers of Canada v. Bell Canada et al., [2012] 2 S.C.R. 326; 432 N.R. 103; 2012 SCC 36, refd to. [para. 24].

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, refd to. [para. 26].

Kandola v. Canada (Minister of Citizenship and Immigration) (2014), 456 N.R. 115; 2014 FCA 85, refd to. [para. 29].

A.Y.S.A. Amateur Youth Soccer Association v. Canada Revenue Agency, [2007] 3 S.C.R. 217; 367 N.R. 264; 2007 SCC 42, refd to. [para. 34].

Canada 3000 Inc. (Bankrupt), Re, [2006] 1 S.C.R. 865; 349 N.R. 1; 212 O.A.C. 338; 2006 SCC 24, refd to. [para. 34].

R. v. Morgentaler, [1993] 3 S.C.R. 463; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, refd to. [para. 34].

Statutes Noticed:

Citizenship Act, R.S.C. 1985, c. C-29, sect. 5.1(1), sect. 5.1(3) [para. 20].

Authors and Works Noticed:

Canada, Standing Committee on Citizenship and Immigration, 1st sess., 39th Parliament, No. 13 (June 21, 2006), p. 8 [para. 35].

Counsel:

Ian Demers and Charles Junior Jean, for the appellant;

Alain Vallières, for the respondent.

Solicitors of Record:

Deputy Attorney General of Canada, Montreal, Quebec, for the appellant;

Alain Vallières, Montreal, Quebec, for the respondent.

This appeal was heard at Montreal, Quebec, on January 15, 2014, by Gauthier, Trudel and Mainville, JJ.A., of the Federal Court of Appeal. Gauthier, J.A., delivered the following reasons for judgment for the court on April 1, 2014.