I am appearing today before Justice Boswell of the Federal Court. Justice Boswell is a recent appointment to the Court and as such, I do not have any prior experience appearing before him. The case deals with the casual dismissal of a "super visa" application by an officer without giving any opportunity to the applicants to address his or her concerns:
"he [an immigration officer] must at any rate give the immigrant an opportunity of satisfying him of the matters ... and for the purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him...[It is] a question of...of being required to act fairly."
Chief Justice Lord Parker in Re HK  2 QB 617.
The Factual Background
My clients, the adoptive parents of a Canadian citizen sought a so called "Super Visa" to see their daughter and her family in Canada. They applied at the Canadian Consulate General in Chandigarh, India but were rejected in late summer of 2013.
They had adopted their daughter when she was three months old. They provided clear documentary evidence establishing their three decades plus familial relationship with their daughter, including an adoption order, proof of their daughter's continuous residence in India with them over two decades, wedding cards listing them as the parents and family photographs over the years.
The Decision Under Review
An officer in Chandigarh casually and callously dismissed the relationship and the application. The decision letter simply listed the ground of refusal as the officer not being "satisfied the applicants [met] the criteria for super visa". The notes of the visa officer are sparse; they simply indicate that the affidavit [in fact the adoption deed] does not appear to be a legal document "and is not verifiable". The officer had concerns why the biological parents were listed on the marriage certificate from 2000.
As an Aside...
It's important to note that there are no special or other regulations dealing with the so called "super visa". There's the CIC website and that's it. IRPA doesn't discuss the super visa, neither does the IRPR. There's no manual or other publication that elaborates on the requirements either.
Our clients, the applicants in this matter, had no biological children of their own. They adopted the male applicant's brother's third daughter, born in Canada and the couple raised her as their own. In 2013, the then 74 year old and 70 year old retired pensioners sought to visit their only child and their two grand-children in Canada. In the application for the Super Visa, they attached proof of her sojourn in India (in the form of "Residential Permits"), her marriage certificate (admittedly referencing her biological father); her wedding cards (listing her adoptive parents as her parents), photographs of the family unit throughout the years, a copy of an adoption deed from India dated from 1981 (more than three decades prior to their application to visit Canada). Also before the officer was a copy of the [male] applicant's will bequeathing his property to his daughter (again, a document pre-dating any application to CIC by years).
The adoption deed was executed by the biological parents and the adoptive parents. in August 1981; the document was registered with the Sub Reistrar that same year.
At no time did the visa officer contact the applicants, their daughter, or their legal representative with respect to any concerns regarding the bona fides of the adoption or the parent-child relationship.
With respect to the remaining requirements of the Super Visa (as stipulated only on the CIC website) the "invitors" had no issue meeting the requisite income.
An application for judicial review is concerned with the justification, transparency of the underlying decision, and more particularly, the decision making process.
In this case, there is no transparency because the visa office, despite an Order from the Federal Court cannot come up with the Certified Tribunal Record. No record - at least from their end - exists with respect to the application outside of the computerized notes of the immigration officer.
Beyond that. What is the logical outcome of the officer's determination that the relationship is not genuine?
He's making a veiled credibility finding. What s/he is saying is that the documents provided in support are not worthy of belief. That means that a 32 year old "adoption deed" signed by the respective parties is a fraud. That means that the wedding cards indicating the invitor as the "daughter of" the applicants is a forgery (from 2000). That means that the photographs of the family unit over the years was manufactured for the purposes of the application. It necessarily means that the various Residential Permits that allowed a Canadian Citizen to remain in India for over two decades and signed over the titles of "Senior Superintendant of Police" were fabrications.
Let's break down the officer's reasoning further. He or she states that the adoption document "does not appear to be a legal document is not verifiable". Case law is clear, there is a presumption that documents issued by a foreign state are presumed to be valid and serve as proof of their documents as a matter of "comity". The presumption of course can be rebutted - but not on the simple say-so of an immigration officer. The presumption could be rebutted after verifying the authenticity of the foreign document and the truthfulness of an applicant's assertions. [Azziz v. MCI 2010 FC 663]. Similarly in Rasheed v. MCI 2004 FC 587, the Court was "ready to accept that the basic rule in Canadian law is that foreign documents...purporting to be issued by a competent foreign public officer should be accepted as evidence of their content unless the Board has some valid reaosn to doubt of their authenticity..."
To paraphrase the analysis in Azziz, the officer challenged the validity of the [foreign document] without adducing any evidence in support of its contention and, clearly, the matter of foreign documents it is not an area where the officer can claim particular knowledge.
At a minimum, the officer should have afforded the applicants an opportunity to disabuse him/her of the concerns. Fairness (in this case) dictates that he inform the applicants of his concerns and doubts and given the chance to provide further evidence about the adoption or clarify the reasons why the biological father's name was listed on the marriage certificate.
For all these reasons (and more) the decision cannot be said to be justifiable or transparent. The application must be re-determined by a different officer. In my mind, the following incontrovertible facts should guide the re-determination:
- That the adoption took place decades prior to any immigration application;
- That there are numerous documents that disclose the close relationship between the invitor and her parents, including proof that a child born in Canada spent the first two decades of her life in India;
- That the application meets the requirements set out in the Respondent's website and there are no further guidance in the form of legislation or regulation for a "super visa" application; and
- If the officer has concerns with the reliability or credibility of the applicants' documents, an interview should be held or a fairness letter issued to allow them to respond and disabuse the officer of any articulated concerns.
Subsequent to the filing of the Application for Leave and Judicial Review and the Applicant's Record and the granting of leave by Justice Beaudry it turned out that the Respondent has, somehow, misplaced the Certified Tribunal Record. This, on its own, is sufficient grounds to allow an application for judicial review.
Instead of advising the applicants that there was no CTR, counsel for the Respondent took the unusual step of trying to ram a consent order down their throats. What that means is that Respondent's counsel reached out with an offer to consent to send the matter back to an0ther officer for redetermination. On the face of it, it sounds great. What he did not share (repeatedly) with opposing counsel (me) is that his offer was predicated on the fact that their office could not provide the Certified Tribunal Record ordered by the Court. When I requested that the consent order stipulate certain terms favourable to my clients (to narrow the issues) Respondent's (junior) counsel over-reacted.
I always take note when individuals have a disproportionate reaction, and so I kept seeking additional clarification. At the end, Respondent's counsel demanded that I consent, failing which he would seek an order for consent (this would mean the hearing would be cancelled) and costs against my client. I have never heard of such a thing - that an applicant would be forced to accede to a consent judgment failing which costs would be ordered against them. I coolly [this is not my first rodeo] told my counterpart "Please go ahead and do whatever you feel is necessary".
My friend filed his motion record and sought costs against septuagenarian retired pensioners in India; I responded. Justice Roy also coolly (and quickly) disposed of his motion, writing:
"In what can only be described as an unusual motion, the Crown seeks a "consent order" to quash the decision of a Visa Officer who has refused to issue a temporary resident visa ...The reason for the concession and the unusual motion is that the ... CTR cannot be produced.
The applicants ... opposed the Crown's motion, which would result in their judicial review application to be granted, on the basis that they want to have their day in court. Furthermore, they content that it is possible that will come out of the hearing some guidance by this Court about an appropriate remedy going beyond sending the matter back to another Visa Officer for a redetermination of the request, as is suggested by the Crown.
In the circumstances, the Crown's motion can only be dismissed...
It follows that the request made by the Crown that there be costs on the motion is also dismissed. Counsel for the applicants suggested that "the issue of costs relating to the Respondent's failure to provide a CTR and advise the Applicants' counsel of this shortcoming in a timely manner" should be left to the court hearing the matter on its merits. I agree.
Perhaps my friend sought to utilize Sun-Tzu like stratagems in seeking to pressure me to accede to his demand. Or, maybe he thought his clumsy attempts would succeed at bullying me into agreeing to an outcome that would have gained my clients nothing more than what they would have gotten if they simply re-filed another application after their refusal.
I would suggest that he read my blog article on Litigation as War. Junior counsel such as my opponent today should "simply master the facts and the law than try to engage in "mind games" with [their] opponent."
Finally, his interest as DoJ counsel is to see a just, appropriate outcome rather than a win at all costs attitude. We're talking about 70 plus year old grandparents that simply want to visit their family in Canada. Perhaps he should keep his powder dry for some other file; this was not the hill to die on.