Digests

M.A.O. v. Canada (Minister of Citizenship and Immigration)

IMM-459-02

2003 FC 1406, Heneghan J.

2/12/03

32 pp.

Judicial review of Immigration and Refugee Board Appeal Division (IAD) decision dismissing applicant's appeal on jurisdictional grounds--Applicant seeking declaration regarding interpretation of term "issue", or declaration term, as defined by IAD, contrary to Canadian Charter of Rights and Freedoms, ss. 7 and 15, and unconstitutional--DNA test revealing applicant could not be biological father of A.O., considered as son--Sponsorship application denied on basis A.O. not "son" within meaning of former Immigration Regulations, 1978, therefore not member of family class-- IAD dismissed appeal, finding A.O. not "son" within former Regulations, as could not be considered applicant's "issue"-- Applicant also requesting Court direct DNA evidence be only one factor to be considered in IAD's redetermination as to whether it has jurisdiction to hear applicant's appeal--As to preliminary matter, respondent arguing questionable A.O. really son of applicant's first wife, S.S.A., since deponents who swore they were at hospital when A.O. was born did not actually see S.S.A. give birth-- Argument not only offensive, but also runs roughshod over process of judicial review-- Respondent cannot bolster reasons of IAD with new grounds developed in support of decision-maker's ultimate conclusion --Judicial review proceeding intended to examine process and reasonableness of particular decision made by administrative decision-maker--Reasons of IAD not questioning maternity of A.O.'s mother, and certainly not ground for decision dismissing appeal--Highly improper for respondent to raise such speculation at judicial review stage--Whether term "issue" within definitions of "son" and "daughter" in Immigration Regulations, s. 2 should be interpreted inclusively to include both legal and biological issue--Term "issue" cannot be interpreted, to include children cared for and raised as though they were sons and daughters of particular adults, as well as those biologically related to such adults--No matter how broadly "issue" interpreted, cannot include children treated as if they are sons and daughters of certain adults, despite fact they have no biological ties with their de facto parents--Family law in Canada has not expanded meaning of term "issue" to include both children who are biological descendants of their parents, as well as children treated as sons and daughters of adults without biological connection--Term "issue" according legitimacy to children born out of wedlock--However, children still required to be biologically linked to their parents to be considered "issue"-- Term "issue" would likely incorporate situation where child born outside of marriage but had been proven to be biological offspring of sponsor--However, word "issue" cannot encompass kind of situation in which applicant finds himself --Term "issue" in Immigration Act (former Act) not including de facto or legal children of parents--Further, IAD erred in interpretation of nature of evidence required under former Act--Former Act did not require applicant to provide "best evidence possible"-- Rather, former Act granted wide discretion to visa officer as to what would be required from applicant--From reasons of IAD, it appears IAD concluded former Act required visa officer to demand applicant provide DNA evidence--This constituted error of law--As to DNA evidence improperly obtained, visa officer who requested DNA tests from applicant did so in manner leaving applicant with no choice but to undergo DNA testing--Visa officer's letter requesting DNA evidence, stating that if DNA evidence not provided application would "likely" be refused improper and unfair--DNA evidence "qualitatively different" from other forms of evidence--Intrusion into individual's privacy occurring with DNA testing means that DNA testing tool that must be carefully and selectively utilized--Improper procurement of DNA evidence cannot be separated from ultimate decision--As to appropriate relief, since matter remitted to IAD for redetermination, appropriate to include direction that certain evidence be excluded from consideration by IAD--Here, DNA evidence obtained as result of error, accordingly DNA evidence to form no part of IAD's decision--Total exclusion of DNA evidence required-- Judicial review allowed--Immigration Act, R.S.C., 1985, c. I-2--Immigration Regulations, 1978, SOR/78-172, s. 2(1) "son" (as enacted by SOR/85-225, s. 1; 93-44, s. 1)-- Immigration and Refugee Protection Regulations, SOR/2002-227, s. 2--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 15.