Date: 20121107
Docket: IMM-7785-11
Citation: 2012 FC 1302
Toronto, Ontario, November 7, 2012
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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GURPREET SINGH
AVTAR SINGH
KARAMJIT KAUR
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Avtar Singh
and Karamjit Kaur are husband and wife. They have a birth daughter, Harwinder
Kaur, and they claim that Gurpreet Singh is their adopted son. Mr. Singh and
the two children made an application for permanent residence under the Live-In
Caregiver Class as his spouse is a live-in caregiver in Canada. All family members are citizens of India.
[2]
The decision
under review is that of a visa officer of the High Commission of Canada in New
Delhi deleting Gurpreet Singh from the application for permanent residence in
Canada on the basis that Gurpreet was not a “dependant child” as defined in
section 2 of the Immigration
and Refugee Protection Regulations, SOR 2002-227 (Regulations). The Regulations
provide that a dependant child includes an adopted child, but the officer was
not satisfied that Gurpreet was an adopted child of the adult applicants and
accordingly, deleted him from the application.
[3]
In my view,
this application has no merit. The decision was reasonable and made in
accordance with law and the principles of natural justice. Based on the record
before the Court, I would have found a decision contrary to that reached by the
officer to have been perverse.
[4]
On
July 30, 2011, an officer reviewing the applicants’ file noted concerns about
the inclusion of Gurpreet on the permanent residence application. Although a
copy of the purported adoption deed and a birth certificate for Gurpreet had
been submitted by Mr. Singh, the officer noted that the latter had been
registered only recently. Moreover, the officer noted the absence of family
photos including Gurpreet and photos showing the adoption ceremony including
the ‘giving and taking’ of him. The officer concluded that he or she was
“unable to confirm that an adoption ceremony ha[d] taken place,” and requested
that the applicant parents be interviewed.
[5]
On
August 23, 2011, the officer, fluent in Punjabi, conducted an interview with
the applicant parents, in Punjabi. The only written record of the interview is
found in the CAIPS notes made by the officer at or very shortly following the
interview. The officer provided an affidavit in which he swears that the notes
in “‘question-and-answer form’ were typed as the questions were being asked and
answered” and that the notes in “‘paragraph form’ were typed immediately
following the portion of the interview reflected in the paragraph.”
[6]
Mr.
Singh, described by his wife as being “uneducated and unsophisticated,” was
interviewed first, in the absence of his wife. The following are relevant
excerpts from the officer’s notes of that interview:
Q Was
Gurpreet’s parents related to you
A No
to my my spouse - I am illiterate but it is my wife’s bright idea
Q What
bright idea
A My
wife told me that we should do papers for the boy as she was likely to get
permanent (PR) in Canada and that we could help relatives and tag along the boy
[…]
Q What
rituals were conducted for adoption ceremony
A We
called the photographer to get some photos clicked in Holy Gurudwara
Q So
no formality or rituals were done
A No
- just to get the photos clicked - we posed while the sweet pudding (Prasad)
were being distributed inside the Gurudwara and then outside in the community
kitchen while some snacks were served
[…]
I
reviewed the photos and was surprised to see that the natural father no-where
to be seen (boy’s natural father is seen in the adoption papers)
Q OK
please point out where the natural father is in the photo
A He
was not there
Q Why
A Maybe
because he had had a few drinks more and did not come inside the holy place
Q So
not the formality of giving and taking was done
A I
told you that my wife is very smart was she had thought of this adoption to
take along the boy
Q Since
the formality of adoption, where did the boy stay
A Dhowali-
Q Your
place
A No
why our place - this is where his father used to stay
Q And
he continues to stay there
A No,
now he has come to stay with us after his father died around 4 months back
[…]
[7]
The
officer then telephoned Mrs. Kaur in Canada, and noted, in paragraph form, that
Mrs. Kaur “appeared as very defensive while responding to questions of
adoption.” After finishing the phone call with Mrs. Kaur, the officer then
“expressed [his] concerns to [Mr. Singh].” The officer noted the following
concerns in the CAIPS notes:
You and your spouse were of young age and could not
explain the need to adopt a child when you could have your own children
Adoption was done with the intent to help the child
and not forge a genuine child parent relationship
Adoption did not involve any give and taking of the
child in the ceremony
Natural father of the child is not seen giving away
the child during the adoption ceremony
Child continued staying with natural father till
very recently
Previous child parent relationship were not ceased
nor relationship was forged
Your spouse did not bother to attend the adoption
ceremony nor has ever visited the child
[8]
The
following appears immediately after the above-listed concerns:
[Mr.
Singh] requested that since he was illiterate and his wife was very smart, she
be called up. Call made to sponsor [a]gain and concern[s] explained. Sponsor
indicated that she only wants visa for all three ([Mr. Singh], biological
daughter & adoptive son). Call put on speaker phone- [Mr. Singh] requested
sponsor that she should stop being stubborn and drop the idea of helping
Gurpreet (adoptive son) as they could send him some money and that it would
delay their case. Sponsor remains adamant - call disconnected.
[Mr.
Singh] informed that it is the smartness of his wife who added the child to
application and requested that the child be immediately deleted from the
application and he and his daughter be issued a visa. I informed him that the
present application is only to confirm their relationship and that visa will be
issued only if Karamjit lands as PR in Canada
****
Interview Concluded *****
[9]
On
September 9, 2011, roughly two and a half weeks after the interview, and
referencing the decision under review, Mr. Singh delivered the following letter
to the High Commission in New Delhi:
Dear
Sir,
With
reference to your letter dated 25/08/2011 this is to inform you that I have no
objection to the deletion of name of my adopted son Gurpreet Singh from my
application for immigration to Canada.
Kindly
issue further instructions for the grant of immigrant visa for me and my
daughter. I & my daughter have been medically examined on 03/05/2011 by
Dr. U.S. Sidhu of [illegible].
[10]
The
applicants submit that the officer erred by calling into question a “validly
issued foreign legal judgment,” namely the applicants’ “court-issued adoption
deed.” They cite and rely upon Boachie v Canada (Citizenship and
Immigration), 2010 FC 672, at para 31, for the proposition that the officer
was “not entitled to assess the legality of a foreign adoption order in the
absence of fraud.”
[11]
I agree with
the respondent that Boachie is distinguishable from the facts before the
Court because in that case there was most clearly a “court order” and no allegation
of fraud in obtaining it had been made. I further agree with the respondent
that the facts at hand more closely parallel, in fact almost identically, those
in Singh
Dhadda v Canada (Citizenship and Immigration), 2011 FC 206, in which Justice
Mactavish held that it was reasonable for the officer to conclude that no
‘giving and taking’ ceremony took place even though the Deed of Adoption stated
otherwise and further that the Deed of Adoption was not a Court Order, and that
it was inconsistent with the evidence of the adoptive father.
[12]
The
Deed of Adoption is a contract drawn up by lawyers for the parties and executed
by them. It is not evidence that a court of law turned its mind to whether the
legal requirements for a valid adoption had been satisfied. It was then taken
to a court for registration; however, there is no evidence that the
registration process involved any independent decision-making. It appears to
be merely an administrative process for which the court charges a nominal fee.
[13]
The
officer in this case, unlike the tribunal in Boachie but like the
officer in Dhadda, was faced with independent, “cogent evidence” which
cast doubt on the adoption deed. I refer, in particular to the evidence of Mr.
Singh who told the officer “my wife is very smart was she had thought of this
adoption to take along the boy.” Further, although he was given three chances
to say that there was a giving and taking ceremony he never says that one
occurred and he does not challenge the officer when he says that it did not.
[14]
Lastly,
the applicants submit that the officer “bullied” and “frightened” Mr. Singh at
the interview and “put … words into his mouth.” The officer denies it. To
support these serious allegations, the applicants rely only on Mrs. Kaur’s
affidavit evidence which is hearsay. The best evidence of these allegations
would have been her husband’s as he was the only person other than the officer
who was present when he made these damaging admissions. I give Mrs. Kaur’s
evidence no weight. Her affidavit does not explain why her husband sent his
letter stating that he had no objection to the deletion of the adopted son from
his application after receiving the decision. Counsel submits this is evidence
that supports that he was bullied by the officer. I disagree. In my view, it
is evidence of someone who knows that the jig is up and who wishes his family
to be reunited in Canada. Further, it is consistent with the plea he made to
his wife during that part of the interview when she was present by teleconference
to “stop being stubborn and drop the idea of helping Gurpreet.”
[15]
For these
reasons, I find that the decision under review is unimpeachable and the
application must be dismissed. Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that
the application is dismissed and no question is certified.
"Russel
W. Zinn"
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