Date: 20110221
Docket: IMM-3695-10
Citation: 2011 FC 206
Ottawa, Ontario, February 21, 2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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SARWAN SINGH DHADDA
UMRAODEEP SINGH DHADDA
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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]
The applicants are part
of a family being sponsored for permanent residency in Canada. An immigration officer deleted the family’s adopted son,
Umraodeep Singh Dhadda, from the application. The officer was not satisfied
that Umraodeep was a “dependant child” within the meaning of the Immigration
and Refugee Protection Regulations, SOR/2002-227.
[2]
The applicants seek
judicial review of that decision, submitting that the immigration officer erred
by misinterpreting and ignoring evidence in assessing whether Umraodeep met the
definition of a “dependant child”.
[3]
For the reasons that
follow, I have not been persuaded that the officer erred as alleged, or that
the decision was unreasonable. As a result, the application for judicial
review will be dismissed.
Analysis
[4]
The question of
whether someone is a “dependent child” pursuant to the Immigration
and Refugee Protection Regulations
is a question of mixed fact and law. As such, it is subject to the
reasonableness standard of review: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at
paras. 47 and 53. See also Boachie v. Canada (MCI), 2010 FC 672, [2010]
F.C.J. No. 821 at para. 21.
[5]
Umraodeep was born on
March 11, 1995, to Harbajan Singh and Bhupinder Kaur. He was adopted by the
applicant Sarwan Singh Dhadda and his spouse, who are neighbours of the birth
parents, on February 12, 1997. Umraodeep was two years old at the time of the
adoption. The adoptive parents say that they adopted Umraodeep because they had
only daughters and desired a son, and that Sarwan Singh Dhadda’s wife was
unable to have any more children.
[6]
The parties agree
that Indian law requires that in order for an adoption to be legal, there must
be a formal “giving and taking” of the child. The applicants produced a “Deed
of Adoption” in support of their application, which stated that “The ceremony
of giving and taking the child in adoption including physical delivery from hand
to hand has been performed under ceremonial pomp and show”.
[7]
The Deed of Adoption
does not appear to be a court order, and there is no evidence as to how the
document was obtained.
[8]
After reviewing the
family’s application, the immigration officer determined that further
investigation was required with respect to the adoption of Umraodeep.
Accordingly, both the birth family and the adoptive family were interviewed,
along with the child himself.
[9]
I agree with the
applicants that little weight should be given to the immigration officer’s
affidavit as it relates to what transpired at the interview. It was sworn
months after the interview, and there is no indication in the affidavit that
the officer continued to have any specific recollection of what may or may not
have been said in the course of the various interviews: see bin Abdullah v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1185, [2006]
F.C.J. No. 1482.
[10]
That said, it is
evident from the officer’s CAIPS notes of the various interviews that there
were significant material discrepancies and inconsistencies in the evidence
given by the individuals interviewed. These were sufficient to raise concerns
in the mind of the immigration officer as to the adoption.
[11]
For example, there
were fundamental inconsistencies between the evidence given by the birth
parents and Umraodeep himself as to the nature of their relationship after the
adoption. While they all agree that Umraodeep continued to spend time at the
birth parent’s home on a daily basis after the adoption, the birth parents
stated that Umraodeep knew that he was adopted, and that they were his birth
parents. In contrast, Umraodeep insisted in his interview that he was never
adopted, and that he was the natural child of his adoptive parents.
[12]
Umraodeep’s adoptive
father was questioned at some length about the adoption ceremony itself. Based
upon her knowledge of local customs, the immigration officer was concerned
about the fact that the ceremony took place in a Tehsil office (or local administration
office) rather than in a Gurdwara, or Sikh temple. Sikh adoption ceremonies
normally take place in a Gurdwara, in the presence of a large number of
witnesses, in order to make the adoption known to the community.
[13]
When asked about
this, Sarwan Singh Dhadda gave conflicting answers that did not make a great
deal of sense. For example, he initially claimed that it was necessary to have
the ceremony at the Tehsil office in order to change the child’s name to that
of the adoptive parents, so that he could be admitted to school.
[14]
When the immigration
officer pointed out that the child was only two years old at the time of the
adoption ceremony and did not need to be registered for school, Sarwan Singh
Dhadda changed his explanation. He claimed that the reason that the ceremony
took place at the Tehsil office was because the family was in the process of
getting a ration card, and wanted to have the child’s name endorsed on the
card.
[15]
When it was then
pointed out that the family’s ration card was issued more than three years
after Umraodeep was adopted, and that the explanations offered by the father
did not make sense, the father’s explanation changed yet again. His final
explanation for holding the adoption ceremony in a Tehsil office was that the
family just did not think of holding it in a Gurdwara.
[16]
The immigration
officer was also concerned about the fact that the family could not produce any
photographs of the adoption ceremony, as the adoption of a child, particularly
the adoption of a son by a family with no boys, would be considered to be an
important life event. Once again, the explanations offered by Sarwan Singh
Dhadda were inconsistent and ever-changing.
[17]
He initially claimed
that they did not take any photographs of the ceremony because it took place in
a Tehsil office rather than in a Gurdwara. He then stated that the reason that
there were no photographs of the ceremony was that there was no photographer in
their village. When pressed on the issue, the explanation changed yet again,
with the adoptive father finally stating that he had just not thought about
having pictures taken of the ceremony.
[18]
The officer then
asked Sarwan Singh Dhadda to describe what had occurred at the adoption
ceremony. The officer’s questions were initially very broad and open-ended,
with the officer giving the adoptive father a number of opportunities to
mention the “giving and taking” ceremony. When Sarwan Singh Dhadda repeatedly
failed to mention any such ceremony, the officer finally asked him directly
whether there had been a “giving and taking” ceremony. The response to the
direct question was negative, with Sarwan Singh Dhadda stating “Only the party,
no religious ceremony”.
[19]
“Taking everything
together”, the officer stated that she “was not satisfied that a genuine
adoption took place or that there was a severing of the parent-child
relationship between Umraodeep Singh Dhadda and his natural parents”. The
result of this was the officer’s decision to delete Umraodeep from the family’s
application.
[20]
The applicants argue
that the interview took place some 13 years after the adoption ceremony took
place, and that it was thus not unreasonable for the participants not to be
able to recall all of the details of the day’s events. While this may be true,
it does not explain the varying and conflicting explanations offered by the
various people in Umraodeep’s life as to what went on, both at the adoption
ceremony itself, and afterwards.
[21]
In light of
these material inconsistencies, the officer’s finding that Umraodeep was not a
“dependant child” within the meaning of the Immigration and
Refugee Protection Regulations was
entirely reasonable.
[22]
Similarly, it was not unreasonable for the
officer to place little weight on the Adoption Deed, given that the statement
in the deed that “The
ceremony of giving and taking the child in adoption including physical delivery
from hand to hand has been performed under ceremonial pomp and show” was
inconsistent with the evidence of Umraodeep’s adoptive father, Sarwan Singh
Dhadda.
Conclusion
[23]
For these
reasons, the application for judicial review is dismissed.
Certification
[24]
Neither party has
suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This application
for judicial review is dismissed; and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
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