Visa Crunch

Rights v/s Duties: A Canadian case of maintaining balance

Like Canadian immigration officials who are required to adjudicate cases in a purposeful and consistent manner, prospective immigrants need to answer openly and accurately.

The official’s failure to comply with these rules would undermine the authority of the official. Similarly, the opacity of immigrants might land them in a troublesome place with respect to their immigration applications. James N. Tiben, a native of Cameroon, arrived in Canada in 2014 and obtained refugee status in 2015.

In July of the following year, Mr. Tiben applied for permanent residence in Canada and included his two adopted children, Fabrice M. Tiben and Romie A. Tiben in the application as dependent children of Mr. Tiben.

Fabrice and Romie are children born to James Tiben’s brother, who died in 2000. James Tiben adopted Fabrice and Romie in 2002 but did not receive the required documents at that time. In September 2016, Mr. Tiben officially embraced Fabrice and Romie Tiben.

In February 2019 the immigration officer sent Mr. Tiben a letter of fair procedure. The letter expressed concerns with Mr. Tiben’s application. Specifically, the police expressed suspicion that Fabrice and Romie Tiben do not meet the definition of ‘adopted child(ren)’ as described in s.4(2) of the Regulations for the Protection of Immigrants and Refugees.

This definition does not cover cases where it is determined that the acquisition took place for the main purpose of obtaining status or benefits under the Immigration and Refugee Protection Act. This section is intended to exclude easy adoption and/or non-binding parent/child liability.

Among various documents, the police identified doubts such as Mr. Tiben only accepted Fabrice and Romie after he arrived in Canada. Additionally, Mr. Tiben did not provide evidence that Fabrice and Romie had been living with Mr. Tiben since 2002. Lastly, the name of the country of Cameroon was incorrectly spelled “Cameroom” in the adoption judgment as well.

The letter gave Mr. Tiben an opportunity to respond to these concerns. Mr. Tiben, while replying, said that it was not uncommon in Cameroon to not obtain the legal custody of children.

The official then issued a ruling, condemning Mr. Tiben’s attempt to include Fabrice and Romie as his adopted children. The second letter concluded that Fabrice and Romie did not qualify as adopted. In doing so, the officer reiterated the many problematic issues identified in the first letter.

The Tiben family challenged the decision as ludicrous. Canadian law has previously established that courts should review cases of truth-related law, such as this one, to an appropriate extent. The Tiben family also argued that the officer’s decision-making process was unfair, such as that the Court should overturn it.

The Court dismissed the claims of the Tiben family. Justice Gascon, in his ruling, noted that the immigration officer did not have to consider Mr. Tiben’s alleged adoption of Fabrice and Romie in 2002. The court concluded this as Mr. Tiben had not produced any concrete evidence to prove the same.

Justice Gascon then turned to a review of the Tiben family’s allegations of procedural wrongdoing. These concerns were threefold: the police officer failed to give the family enough time to respond to trust issues; cases, such as those of the Tibens family, where family unity is at stake, deserve a higher degree of procedural fairness than cases where such integration was not a problem; and that the policy document is written in French. He eloquently spoke on all grounds and cleared up each concern.

Canadian law has established that officials do not have to give applicants the opportunity to respond to information-related concerns when applicants have submitted information; the responsibility rests with the applicants themselves to prepare applications with accurate information and convincing arguments.

In short, the terrible case of the Tiben family makes it clear that just as immigration officials have standards: common sense and equality, immigrants have them too: submitting appropriate and accurate applications. Since each side has rights, each side has its own duties.

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