Reciprocal rights and responsibilities of prospective immigrants to Canada


Published on February 8th, 2021 at 04:00am EST

Much as Canadian immigration officers are required to determine cases in an objective and consistent manner, prospective immigrants are required to answer candidly and accurately.

Just as an officer’s failure to respect these rules can thwart the officer’s determination, so, too, can a would-be immigrant’s refusal to provide forthright and correct information doom an immigration application. James N. Tiben is a Cameroonian national. He came to Canada in 2014 and obtained refugee status here in 2015.

In July of the following year Mr. Tiben applied for Canadian permanent residency and included his two ostensibly adopted children, Fabrice M. Tiben and Romie A. Tiben on the application as Mr. Tiben’s dependent children.

Fabrice and Romie are the biological children of James Tiben’s brother (not named in the judgment), who died in 2000. James Tiben would later claim to have adopted Fabrice and Romie in 2002, but to not have obtained the necessary paperwork at the time. In September of 2016, Mr. Tiben formally adopted Fabrice and Romie Tiben.

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In February of 2019 an immigration officer sent Mr. Tiben a procedural fairness letter. This document expressed concerns with Mr. Tiben’s application. Specifically, the officer pointed to doubts that Fabrice and Romie Tiben met the definition of ‘adopted child[ren]’ as spelled out in s. 4(2) of the Immigration and Refugee Protection Regulations.

This definition excludes cases where it is determined that the adoption occurred for the primary purpose of acquiring status or benefits under the Immigration and Refugee Protection Act. This section is designed to exclude adoptions of convenience and/or which do not create a true parent/child bond.

Among the factors the officer identified as casting such doubts were that: Mr. Tiben only adopted Fabrice and Romie after Mr. Tiben’s arrival in Canada; Mr. Tiben provided no proof that Fabrice and Romie had lived with Mr. Tiben between 2002 and when Mr. Tiben came to Canada; and, the country name Cameroon was misspelled “Cameroom” in the ostensible adoption judgment. (Other concerns included) records of money transfers from Mr. Tibens to Fabrice and Romie were either very recent or altogether unintelligible; Fabrice and Romie’s mother is still living

The letter gave Mr. Tiben the opportunity to respond to these concerns. Mr. Tiben availed himself of this opportunity. For example, he replied that it is not customary in Cameroon to obtain formal adoption papers.

The officer then issued a decision rejecting Mr. Tiben’s attempt to include Fabrice and Romie as Mr. Tiben’s adopted children. This, second, letter concluded that Fabrice and Romie did not qualify as adopted children. In doing so, the officer re-stated many of the problematic aspects identified in the first letter.

The Tibens family challenged this decision as unreasonable. Canadian jurisprudence has previously established that courts should review cases of mixed law and fact, such as the one at hand, on a standard of reasonableness. The Tibens family also contended that the officer’s decision-making process was procedurally unfair, such that the Court should quash it.

The Court rejected the Tibens family’s claims. Justice Gascon, in his decision, noted that the immigration officer was not required to consider Mr. Tibens’s claims to have customarily adopted Fabrice and Romie in 2002, as Mr. Tibens’s had not tendered any evidence to ground such a claim. The Tibens had also claimed that the officer made material errors of fact in the officer’s decision, rendering it unreasonable.

Justice Gascon identified the errors as arising from the Tibens’ own submission, and at any rate, not rising to the standard of having been central to influence the officer’s decision.

Similarly, Justice Gascon also rejected the Tibens’ claims that the officer’s mislabelling of the addressee in some correspondence was unclear or inconsistent; Gascon held that any such mistakes or unclarities did not cloud the officer’s judgment and were thus not unreasonable. Similarly, the Court rejected the Tibens’ claims that the officer was unreasonably vague in the officer’s communication of concern to the Tibens.

Justice Gascon then turned to a review of the Tiben family’s claims of procedural unfairness. These concerns were essentially three: the officer had failed to give the family adequate opportunity to respond to credibility concerns; cases, such that of the Tibens family, where family unification is at stake, merited a higher standard of procedural fairness than cases where such unification was not a concern; and, that the procedural fairness letter was written in French. He swiftly addressed and dismissed each concern.

Canadian jurisprudence has established that officers are not required to give applicants an opportunity to respond to concerns about information when the applicants have themselves submitted the information; the onus is on the applicants themselves to prepare applications with accurate information and convincing arguments.

The Court also held that the facts of each individual case, not the mere fact that family reunification is involved, dictate what is considered to be fair. Finally, the Court observed, Mr. Tiben had already responded twice, and without even raising any concern about the language of correspondence, to a letter that was written in French,; this fact vitiated the claim that the language of the letter somehow prejudiced the Tibens family.

In short, the unfortunate case of the Tiben family makes clear that just as immigration officers have standards: to be reasonable and fair, so, too, do prospective immigrants: to submit correct and persuasive applications. Just as each side has rights, each side has responsibilities. Refusal by a party to respect either aspect can cause grave harm to its cause.

If you are interested in learning more about this case, Tiben v. Canada (M.C.I.), 2020 FC 965, you can access it at https://canlii.ca/t/jb657

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