Date: 20071001
Docket: IMM-3068-06
Citation: 2007 FC 992
Ottawa, Ontario, October
1, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ISHATINDRA
SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision by an immigration officer dated May 3, 2006, which refused the
applicant’s application for permanent residence as a skilled worker.
[2]
The
applicant seeks an order quashing the officer’s decision and remitting the
matter to the Canadian Consulate General for redetermination. The applicant
also seeks costs.
Background
[3]
The
applicant, Ishatindra Singh, is a citizen of India and currently resides in Hong Kong. On
September 9, 2004, he applied for permanent residence in Canada, as a member of the
skilled worker class. He submitted his application to the Canadian Consulate
General in Hong
Kong. The
application included the applicant’s spouse and two children, son Singh
Charanindra Singh and daughter Jotindra Walia Singh, as accompanying family
members. The applicant’s wife and children are British nationals and also
reside in Hong Kong.
[4]
The
applicant’s daughter was born in Hong Kong and educated in India. In 2000, the
applicant’s wife signed an adoption deed which purported to authorize the
adoption of her twelve year-old daughter by her sister and her sister’s
husband. The applicant was not in India when the adoption deed was signed and did not
sign the document.
[5]
On
September 29, 2005, the applicant, his daughter and his spouse, were called in
for an interview with an immigration officer. The officer had received information
indicating that the applicant’s daughter had been adopted by a third party in
2000, and the applicant was asked to respond to this allegation. During the
interview, the applicant’s daughter and spouse confirmed that adoption
proceedings took place in 2000. The applicant indicated that he was not in India at the time and was not
involved in the adoption process. He indicated that he was advised of the
adoption in 2002, but was told that nothing had been finalized yet. The officer
asked the applicant to submit any adoption papers with respect to his
daughter.
[6]
In
February 2006, the officer obtained information regarding the legality of the
adoption from the High Commission of Canada in New Delhi, India. The officer was informed that the
adoption papers did not require the signature of the biological father and that
the document should explain the circumstances by which the mother became the
sole parent. The officer noted that the adoption papers explained the
circumstances of the mother and why the daughter had been given up for
adoption.
[7]
By
decision dated May 3, 2006, the applicant’s application for permanent residence
was refused on the basis that he had included fraudulent family composition information
in his application. This is the judicial review of the officer’s decision to
refuse the applicant’s application for permanent residence.
Officer’s Reasons
[8]
By
letter dated May 3, 2006, the applicant was advised that his application for
permanent residence had been refused. The letter stated:
You
were found to have included fraudulent family composition information in your
immigration application by way of the inclusion of Jotindra Walia Singh as an
accompanying family member. These concerns were discussed with you during your
interview on 29 September 2006. You then admitted that Jotindra Walia Singh has
been adopted by another family member in 2000. You subsequently submitted proof
of this adoption.
…
Following
an examination of the material that was available on file, I am not satisfied
that you are not inadmissible and that you meet the requirements of the
Immigration and Refugee Protection Act. I am therefore refusing your
application pursuant to subsection 11(1) of this Act.
[9]
The
officer’s notes constituted reasons for the decision:
Memorandum
to Operations Manager: It would appear that the applicant included Jotindra
Walia Singh in his application as an accompanying family member. However,
further examination has revealed that Jotindra W. Singh was adopted by another
family member in 2000. The applicant was aware of this adoption in 2002 but
nevertheless submitted an application in 2004 claiming Ms Singh as an
accompanying family member.
…
I
am not totally satisfied that the issue of the adopted daughter who, I
understand is the natural daughter of the applicant, does induce the
possibility that an error would have been made in the administration of the
Act. The “giving” of offsprings to other family members is not uncommon in
Indian Culture. It appears the daughter has remained with the nature parents.
…
File
reviewed. Application refused under A16(1)/A11(1). The legal relationship
between the principal applicant Jotindra W. Singh is material. The applicant
failed to disclose the fact that this relationship was legally extinguished in
2000. His attempt to include a person in his application who is not defined
under the IRPA as a family member could have induced the issuance of a visa to
a person not authorized to receive one.
CC:
Please send refusal letter.
Issues
[10]
The
applicant submitted the following issues for consideration:
1. Was the adoption deed
dated October 31, 2000 valid under foreign law?
2. Did the adoption deed
extinguish the pre-existing parent-child relationship between the principal
applicant and his daughter?
3. Did the principal
applicant misrepresent the legal relationship between himself and his daughter?
4. Did the visa officer fail
to apply subsections 3(2) and 117(2) and (3) of the Regulations?
[11]
I
would rephrase the issue as follows:
Did the officer err in refusing the
applicant’s application for permanent residence on the basis that he had
provided fraudulent family composition information in his application?
Applicant’s Submissions
[12]
The
applicant submitted that he had provided truthful information regarding his
daughter to the immigration officer. It was submitted that he had informed the
officer that the adoption deed with respect to his daughter was invalid. The
officer was advised that the applicant had never authorized his wife to give up
their daughter for adoption. It was submitted that the officer erred in finding
that the applicant had admitted that his daughter had been adopted in 2000.
[13]
The
applicant noted an affidavit from Satindar Pannu, his sister-in-law, who had
allegedly adopted his daughter, wherein she acknowledged that the adoption had
never been acted upon. The applicant noted that during cross-examination, his
daughter indicated that no adoption ceremony took place, that she always lived
with her parents and been supported financially by them. She also stated that
she thought the adoption was invalid.
[14]
The
applicant noted that his daughter lived in India during her studies, and that he had supported
her financially. It was submitted that during her time in Hong Kong, the
applicant’s daughter lived with her parents. The applicant noted that during a
visit to India, Satinder Pannu and her
husband Parmjit Pannu, with the consent of his wife, created the adoption deed.
It was submitted that the deed was not valid because:
1. The applicant was not a
party to the deed;
2. He did not authorize his
wife to give up their daughter for adoption;
3. His daughter had always
lived with her parents, and not the alleged adoptive parents;
4. His wife did not have
legal custody of his daughter and could not give her up for adoption on her
own;
5. The adoption deed was not
signed by the applicant and was void.
[15]
The
applicant submitted that there was no evidence that was a genuine parent-child
relationship between the adoptive parents and his daughter (see subsection
117(3) of IRPA). It was submitted that there was no evidence of an intent to
transfer his daughter to her adoptive parents. The applicant noted that Sanjeev
Walia, a lawyer from India, reviewed the adoption
deed and found that it was void.
[16]
The
applicant noted that the officer sent an email to the Canadian High Commission
in New Delhi, India, in order to
inquire about the validity of the adoption under Indian law. During
cross-examination, the officer indicated that the legality of the adoption was
not within his jurisdiction. The applicant submitted that the officer was not
familiar with foreign law and acted upon erroneous advice obtained from the
Canadian High Commission in New Delhi. It was submitted that the officer was confused on the
adoption issue and provided contradictory evidence in his CAIPS notes, emails
and upon cross-examination.
[17]
The
applicant submitted that the officer had the legal duty to assure himself that
a foreign adoption had taken place in accordance with the foreign law. Further,
it was submitted that the officer had a duty to consider the best interests of
the child when determining whether a parent-child relationship had been created
or severed. The applicant submitted that the officer erred in law by refusing
his application for permanent residence because he had included fraudulent
family composition information in his application.
Respondent’s Submissions
[18]
The
respondent noted that the applicant had submitted certain documents into the
record that were not before the officer, including:
1. The affidavit of lawyer
Sanjeev Walia;
2. The Hindu Adoptions and
Maintenance Act 1956
3. The affidavit of Satindar
Jawanda (the adoptive mother); and
4. School papers from
Jotindra Singh.
[19]
The
respondent submitted that the documents should not be considered by the Court,
since barring exceptional circumstances, evidence that was not before the
decision-maker is inadmissible in a judicial review proceeding (see Bekker
v. Canada, 2004 FCA 186). It was submitted that there were no circumstances
in this case warranting the consideration of this evidence by the Court.
[20]
The
respondent submitted that the standard of review applicable to a visa officer’s
decision with respect to a skilled worker application was patent
unreasonableness (see Kniazeva v. Canada (Minister of
Citizenship and Immigration) (2006), 288 F.T.R. 282, 2006 FC 268).
[21]
The
respondent submitted that the record showed that the applicant had never
asserted that the adoption of his daughter was invalid. The CAIPS notes revealed
that during the interview, the applicant never stated that the adoption deed
was invalid or ineffective. During the interview, the applicant’s daughter and
wife both admitted that there had been an adoption. The applicant indicated
that the adoption was something his wife and her sister had “cooked up”, and that he did
not find out about it until 2002. The respondent noted that although the
applicant knew that his daughter had been adopted in 2002, he submitted an
application for permanent residence in 2004 which included her as a dependent.
[22]
The
respondent noted that in response to the officer’s request for information
about the adoption, the applicant submitted two letters and the adoption deed.
It was submitted that the letters did not assert that the adoption was invalid.
The respondent noted that while the applicant’s daughter admitted that she was
adopted during the interview, her affidavit indicated that she was never
informed that she was adopted. During cross-examination, she again indicated that
she had been adopted. As a result, it was submitted that her evidence was not
reliable.
[23]
The
respondent noted that the applicant was also inconsistent with respect to
evidence regarding the adoption. He admitted that he had knowledge of the
adoption during the interview, but swore an affidavit that no party had adopted
his daughter. It was submitted that his evidence under cross-examination was
also unreliable. The respondent submitted that the applicant was given the
opportunity to present his case, but misrepresented the facts.
[24]
The
respondent submitted that the applicant incorrectly argued that it was the
officer’s responsibility to conduct research into whether the adoption was
valid under Indian law. The respondent reiterated that the applicant had never
told the officer that the adoption was invalid. It was submitted that under the
circumstances, the officer was not required to research the law of India. It was submitted that
the applicant had the onus to establish his claim, and that he had omitted
pertinent information at his own peril (see Owusu v. Canada (Minister of
Citizenship and Immigration), [2004] 2 F.C.R. 635, 2004 FCA 38).
[25]
The
respondent noted the applicant’s admission that he was not of the opinion that
the adoption was invalid until after his application was refused. Further, it
was submitted that the adoption deed did not appear to be invalid under the Hindu
Adoptions and Maintenance Act, since the Act did not require that both
parents sign the papers, or that the father be in India at the time of the
adoption.
[26]
Pursuant
to subsection 16(1) of IRPA, a person who makes an application must answer
truthfully all questions put to them for the purpose of examination. The
respondent noted that the applicant did not reveal that his biological daughter
had been adopted until he was confronted with this fact. As a result, pursuant
to subsection 11(1) of IRPA, the applicant did not meet all of the requirements
of IRPA. It was submitted that the officer was therefore entitled to refuse the
application. The respondent submitted that the officer’s conduct did not
warrant costs being awarded to the applicant.
Analysis and Decision
Standard of Review
[27]
The
standard of review applicable to the officer’s finding with respect to an
application for permanent residence within the skilled worker category is
patent unreasonableness (see Kniazeva above). I would note that the
officer’s decision turned upon a factual finding, namely, whether the applicant
was aware that his daughter was subject to adoption proceedings when he
included her as a dependent on his application.
[28]
Issue
Did the officer err in refusing
the applicant’s application for permanent residence on the basis that he had
provided fraudulent family composition information in his application?
When the officer was
considering the applicant’s application for permanent residence, the officer
became concerned that the applicant’s daughter may have been adopted by others.
The officer believed that the applicant may have included fraudulent information
about the composition of his family as he included his daughter as a family
member. The officer held an interview with the applicant to provide him with an
opportunity to address the officer’s concerns about an adoption.
[29]
The
following is a more or less verbatim record of the interview and is taken from
the officer’s notes:
I have received information that your
daughter has been adopted by a third party. Is this correct?
(Spouse intervenes: Yes, she was adopted
by my sister in Canada.)
PI: I was not in India at that time. The adoption papers are in
Canada.
When did the adoption take place?
PI: Hesitation.
(Daughter intervenes: I think in 2000 or
2001. Yes, 2001.)
PI: I didn’t know; I was in India at the time. It’s something my wife
cooked up with my sister.
Why was your daughter included in your
application as your dependent?
PI: I didn’t have the information at the
time it happened.
(Spouse intervenes: It was me who did
this.)
Sir, when did you find out your daughter
had been adopted by your sister-in-law in Canada?
PI: In 2002; I returned to India and they told me. But they told me
nothing was finalized yet. I didn’t take it very seriously because I was still
bearing all the expenses.
(Spouse intervenes: My sister never gave
anything to my daughter. They never called her after that. I can send you the
adoption papers. I have a copy myself. I will send you the adoption papers.
Can we just exclude our daughter from the application?
No.
…
I am also requesting the adoption papers
to which you made reference at this interview. Do you understand?
PI: Yes.
…
Note that PI was handed a standard
document request form at interview requesting CGC from India and documents related to the adoption
his daughter, Jotindra Walia, by her aunt in Canada.
[30]
In
response to the request for documentation regarding the adoption, the applicant
provided the officer with a copy of the adoption deed signed by his wife, and a
letter which stated:
Regarding adoption of my daughter, I was
not in India and I was not aware of this
development. I am present the photocopy of the adoption papers, duly attested
by the issuing authority and I have asked her adopting parents to, either
arrange her upkeep or cancel her adoption. Having adopted her five years back
on 3rd 11, 2000, they never bothered about her upbringing in any
way, I will submit the information soon, as they agreed to comply with my
request and requirement and they have informed us that they are active in this
direction.
[31]
I
have reviewed all of the evidence on the file and I cannot conclude that the
officer’s decision was patently unreasonable. There is information that the
applicant knew in 2002 that adoption proceedings were taking place but were not
yet finalized. The officer was not advised that the adoption was invalid and
the applicant included his daughter in his application. The officer had a
sufficient basis to deny the application because of incorrect information on
the composition of the applicant’s family. I have not considered information that
was not before the officer.
[32]
The
application for judicial review is therefore dismissed.
[33]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[34]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27.:
|
11.(1)
A foreign national must, before entering Canada,
apply to an officer for a visa or for any other document required by the
regulations. The visa or document shall be issued if, following an
examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
. . .
16.(1) A
person who makes an application must answer truthfully all questions put to
them for the purpose of the examination and must produce a visa and all
relevant evidence and documents that the officer reasonably requires.
(2) In the
case of a foreign national,
(a) the
relevant evidence referred to in subsection (1) includes photographic and
fingerprint evidence; and
(b) the
foreign national must submit to a medical examination on request.
(3) An officer
may require or obtain from a permanent resident or a foreign national who is
arrested, detained or subject to a removal order, any evidence —
photographic, fingerprint or otherwise — that may be used to establish their
identity or compliance with this Act.
|
11.(1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement, lesquels sont délivrés sur
preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et
se conforme à la présente loi.
. .
.
16.(1) L’auteur d’une demande
au titre de la présente loi doit répondre véridiquement aux questions qui lui
sont posées lors du contrôle, donner les renseignements et tous éléments de
preuve pertinents et présenter les visa et documents requis.
(2) S’agissant de
l’étranger, les éléments de preuve pertinents visent notamment la
photographie et la dactyloscopie et il est tenu de se soumettre, sur demande,
à une visite médicale.
(3)
L’agent peut exiger ou obtenir du résident permanent ou de l’étranger qui
fait l’objet d’une arrestation, d’une mise en détention, d’un contrôle ou
d’une mesure de renvoi tous éléments, dont la photographie et la
dactyloscopie, en vue d’établir son identité et vérifier s’il se conforme à
la présente loi.
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