Docket: IMM-385-11
Citation: 2011
FC 929
Ottawa, Ontario, July 26,
2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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KULVIR KAUR BRAR
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Applicant
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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
I. Overview
[1]
Ms.
Kulvir Kaur Brar and her husband, Mr. Dalbir Beniwal, wish to sponsor their
adopted daughter, Gungeet, who lives in India, to become a
permanent resident of Canada. Gungeet is Mr. Beniwal’s niece.
[2]
Ms.
Brar filed a sponsorship application in 2005, but it was turned down by a visa
officer. The officer found that the adoption was not genuine and was entered
into for the purpose of gaining permanent resident status in Canada for Gungeet.
Ms. Brar appealed to the Immigration Appeal Division [IAD] which dismissed her
appeal.
[3]
Ms.
Brar submits that the IAD made numerous errors of fact and came to an
unreasonable conclusion. She asks me to quash the decision and order a new
hearing. However, I can find no basis on which to overturn the decision and
must, therefore, dismiss this application for judicial review. In my view, the
IAD’s decision was supported by the evidence.
[4]
The
sole question is whether the IAD’s decision was unreasonable.
II. The IAD’s Decision
[5]
A
child is not considered to be adopted if the adoption was entered into
primarily for the purpose of acquiring immigration status, or if it did not
create a genuine parent-child relationship: Immigration and Refugee
Protection Regulations, SOR-2002-227, s 4 (enactments cited are set out in
Annex A). The burden fell on Ms. Brar to persuade the IAD that neither of these
stipulations applied to the adoption of Gungeet.
[6]
The
IAD began its analysis with the question of whether the adoption created a genuine
parent-child relationship, and considered the following factors:
• the motivation for
the adoption;
• the
extent to which the adoptive parents have maintained care and control over the
child since the adoption;
• the nature and
extent of contact between the adoptive parents and the child;
• the extent of the
parties’ knowledge
of one another; and
• the plans and
arrangements for the child’s future.
[7]
The
IAD accepted that Ms. Brar and Mr. Beniwal had originally wanted to adopt a
child because they were having trouble conceiving a child of their own. But,
after the adoption, and after they had children of their own, it appeared more
likely they were trying to help provide a better life and opportunities for a
relative.
[8]
With
respect to the issue of care and control, Ms. Brar filed some financial
documents showing money transfers to India intended to provide for
Gungeet’s care and schooling. However, the IAD found the documents to be
lacking in details about Gungeet’s needs and the actual extent of the financial
assistance she received from her adoptive parents.
[9]
Further,
it was unclear, according to the IAD, to what degree Ms. Brar and Mr. Beniwal
played a role in Gungeet’s upbringing, especially given their limited contact.
Mr. Beniwal did not travel to India for the adoption. In fact, Ms. Brar and
Mr. Beniwal did not visit Gungeet for another four years after the adoption.
They visited again two years after that. In the meantime, they exchanged telephone
calls, letters, cards, and photographs. The IAD found that the parties had only
superficial knowledge of one another.
[10]
As
for Gungeet’s future, Ms. Brar and Mr. Beniwal planned to help further her
education; she hopes to be a doctor someday.
[11]
Based
on its consideration of the applicable factors and the corresponding evidence,
the IAD found that Ms. Brar had not established the development of a genuine
parent-child relationship with Gungeet. It appeared that the adoption was
entered into primarily for the purpose of acquiring permanent resident status
for Gungeet.
III. Was the IAD’s Decision
Unreasonable?
[12]
Ms.
Brar contends that the IAD erred by failing to consider the special nature of
adoptions. Obviously, it is difficult for the parties to develop a parent-child
relationship when they have not had an opportunity to live together, and when
the child is under the care of others.
[13]
In
addition, Ms. Brar submits that the IAD’s reasons are contradictory. On the one
hand, the IAD accepts that the original motivation for the adoption arose from
the difficulty Ms. Brar and Mr. Beniwal were having in conceiving a child. Yet,
on the other hand, the IAD concludes that the adoption was entered into mainly for
immigration purposes.
[14]
Ms.
Brar also notes that the IAD seemed to believe that little had changed for Gungeet
after the adoption and failed to take account of the fact that Gungeet had
ceased living with her biological parents, moved in with her grandparents, and
changed her family name. While she lived in the same city as her biological
parents, and continued to attend the same school as her siblings, it would be
unrealistic, Ms. Brar points out, to expect Gungeet to sever all ties with her
family after the adoption.
[15]
Regarding
Gungeet’s care, Ms. Brar wonders what further evidence of financial support the
IAD expected to see. The documents she filed showed transfers of many thousands
of dollars over the course of several years for Gungeet’s benefit. Further, the
IAD failed to mention a letter from Gungeet’s school corroborating the interest
Ms. Brar and Mr. Beniwal had shown in her studies.
[16]
Taken
together, Ms. Brar argues that these errors caused the IAD to reach an
unreasonable conclusion. In my view, however, on reviewing the evidence and
reading the IAD’s reasons as a whole, I cannot conclude that its conclusion was
unreasonable.
[17]
The
IAD accepted that the original motivation of Ms. Brar and Mr. Beniwal had been
to adopt a child because of their difficulties conceiving a child of their own.
But this was just one factor to consider when determining the overall purpose of
the adoption. After considering all of the relevant factors and the evidence as
whole, the IAD found that the purpose of the adoption was to assist Gungeet’s
admission to Canada,
notwithstanding that the original motivation was sincere.
[18]
Regarding
the extent of changes in Gungeet’s life after the adoption, the IAD reasonably
observed that she went to the same school, lived in the same town, and
continued to have contact with her family. This was, of course, natural under
the circumstances but, again, it was only one of a number of factors the IAD
had to consider.
[19]
With
respect to care and control, the IAD reasonably expected to see evidence of the
extent of Gungeet’s financial needs and the manner in which Ms. Brar and her
husband had met them. The documents tendered by Ms. Brar indicated neither
(although they did show money transfers to India). Further,
there was little evidence before the IAD regarding the quality of the ongoing
relationship between the adoptive parents and Gungeet. The contacts were
apparently superficial and few.
[20]
As
for the letter from the school, while it would obviously have been desirable
for the IAD to have referred to it, I find that its content was general and did
not attest to a long-standing or active involvement in Gungeet’s education.
[21]
Accordingly,
I find that the IAD’s decision was not unreasonable. It fell within the range
of acceptable and defensible outcomes based on the facts and the law.
IV. Conclusion and Disposition
[22]
Looking
at the IAD’s reasons and the evidence as a whole, its conclusion that Gungeet’s
adoption was entered into for purposes of acquiring immigration status in Canada was
reasonable - that is, justified, transparent and readily intelligible. I must,
therefore, dismiss this application for judicial review. Neither party proposed
a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is dismissed;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex “A”
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Immigration
and Refugee Protection Regulations, SOR-2002-227
Bad
faith
4.
(1) For the purposes of these Regulations, a foreign national shall not be
considered a spouse, a common-law partner or a conjugal partner of a person
if the marriage, common-law partnership or conjugal partnership
(a) was entered into primarily
for the purpose of acquiring any status or privilege under the Act; or
(b) is not genuine.
Adopted
children
(2)
A foreign national shall not be considered an adopted child of a person if
the adoption
(a) was entered into primarily
for the purpose of acquiring any status or privilege under the Act; or
(b) did not create a genuine
parent-child relationship.
Sponsorship
of adopted children
(3)
Subsection (2) does not apply to adoptions referred to in paragraph 117(1)(g)
and subsections 117(2) and (4).
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Règlement
sur l’immigration et la protection des réfugiés, DORS/2002-227
Mauvaise
foi
4.
(1) Pour l’application du présent règlement, l’étranger n’est pas considéré
comme étant l’époux, le conjoint de fait ou le partenaire conjugal d’une
personne si le mariage ou la relation des conjoints de fait ou des
partenaires conjugaux, selon le cas :
a) visait principalement l’acquisition
d’un statut ou d’un privilège sous le régime de la Loi;
b) n’est pas authentique.
Enfant
adoptif
(2)
L’étranger n’est pas considéré comme étant l’enfant adoptif d’une personne si
l’adoption, selon le cas :
a) visait principalement l’acquisition
d’un statut ou d’un privilège sous le régime de la Loi;
b) n’a pas créé un véritable lien
affectif parent-enfant entre l’adopté et l’adoptant.
Parrainage
de l’enfant adopté
(3)
Le paragraphe (2) ne s’applique pas aux adoptions visées à l’alinéa 117(1)g)
et aux paragraphes 117(2) et (4).
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