Docket:
T-1270-13
Citation: 2014 FC 77
Vancouver, British Columbia, January 22, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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NAVJIT KAUR RAI
AND SURINDER SINGH RAI
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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
I. Overview
[1]
The Hague Convention on Adoption of Children
and Canadian domestic legislation, both federal and provincial, are in place to
ensure that the vulnerability of children is protected with respect to
safeguards in their regard, as well, both are in place to ensure that those
whose interests are to protect such children are also protected.
[2]
Without submission of letters from competent
authorities from the countries of origin and the province in Canada in
question, confirming that adoption requirements have been met under the Hague
Convention on Adoption, adoption requirements are considered not to have
been met by Canadian authorities as per the Canadian Citizenship Act (Dufour
v Canada (Minister of Citizenship and Immigration), 2013 FC 340; Adejumo
v Canada (Minister of Citizenship and Immigration), 2011 FC 1485, 402 FTR
282 [Adejumo].
II. Introduction
[3]
This is an application for judicial review of
the decision of a Visa Officer, dated May 28, 2013, refusing the Applicants’
citizenship application for their adopted daughter. The Officer was not
satisfied that the adoption met the requirements under paragraphs 5.1(1)(a),
5.1(1)(b) or 5.1(1)(c) of the Citizenship Act, RSC, 1985,
c C-29.
III. Background
[4]
The Applicants, Mrs. Navjit Kaur Rai and Mr.
Surinder Singh Rai, are Canadian citizens who are originally from India. They have three Canadian-born children: Keerat Singh Rai, Ravjat Singh Rai and
Kultaj Singh Rai.
[5]
On December 31, 2009, the Applicants adopted
Mrs. Rai’s deceased brother’s daughter, Kamaljeet Kaur. Kamaljeet’s natural
mother, Manjit Kaur, still resides in India. She still has a relationship with
her daughter and sees her regularly.
[6]
On May 18, 2012, the Applicants submitted an
Application for Canadian Citizenship for a Person Adopted by a Canadian Citizen
for Kamaljeet.
[7]
As part of the application process, in a letter dated
July 24, 2012 from the Immigration Section of the High Commission of Canada in New Delhi, the Applicants were asked to provide a number of documents to Citizenship and
Immigration Canada [CIC] in order to confirm that the adoption was made in
accordance with the laws of India and Canada. This included the following
documents:
a)
Home study of the adoptive parents completed by
an accredited agency in Canada;
b)
Notice of Agreement from the province of
destination in Canada;
c)
No Objection Certificate from the Central
Adoption Resource Authority (CARA); and
d) Photos of the adoption ceremony.
(Certified
Tribunal Record at p 109)
[8]
The Applicants provided a home study and photos
of the ceremony, however, they did not provide a Notice of Agreement from the Province of British Columbia or a No Objection Certificate from the CARA.
[9]
On May 28, 2013, the Visa Officer rejected the
Applicants’ citizenship application for their adopted daughter, which is the
underlying application before this Court.
IV. Decision under Review
[10]
In her decision, the Officer concluded that the
Applicants had failed to establish that the adoption was in the adoptee’s best
interest, that there existed a genuine parent-child relationship and that
the adoption was performed in accordance with the laws of India and Canada respectively. As such, the Officer found that the Applicants had failed to meet the
requirements of paragraphs 5.1(1)(a), 5.1(1)(b) and 5.1(1)(c)
of the Citizenship Act.
[11]
On the first issue, the Officer concluded that
the Applicants had not sufficiently demonstrated that the adoption was in the
best interest of the child as they could not provide the basic required
documents to confirm that the adoption was performed in accordance with the
Hindu Adoption and Maintenance Act (HAMA) of India or the Hague
Convention on adoption.
[12]
The Officer noted that there was a significant discrepancy
in the five interviews she conducted in regard to the location of the
adoption ceremony, making it unclear as to whether an actual ceremony had even
taken place. She also noted that the pictures submitted by the Applicants did
not clearly demonstrate that the ceremony was an adoption.
[13]
On the second issue, in regard to the
genuineness of the parent-child relationship, the Officer noted that there was
minimal evidence on the record of any ongoing communication between the
Applicants and Kamaljeet. There was also no evidence of any transfer of funds
from the Applicants to support Kamaljeet in India. The Officer also found that
Kamaljeet showed limited knowledge of Canada and her adoptive parents’ living
situation.
[14]
On the last issue, the Officer indicated that
the Applicants had not complied with the laws in Canada as they failed
to provide a Notice of Agreement from the Province of British Columbia and a No
Objection Certificate from the CARA. Without these documents, the Officer
concluded that she could not be satisfied that the Applicants met the
requirements of the Citizenship Act.
V. Issue
[15]
Did the Officer err in her assessment of the
evidence before her?
VI. Relevant Legislative Provisions
[16]
The following legislative provision of the Citizenship
Act is relevant:
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5.1 (1) Subject to subsection (3),
the Minister shall on application grant citizenship to a person who was
adopted by a citizen on or after January 1, 1947 while the person was a minor
child if the adoption
(a)
was in the best interests of the child;
(b)
created a genuine relationship of parent and child;
(c)
was in accordance with the laws of the place where the adoption took place
and the laws of the country of residence of the adopting citizen; and
…
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5.1 (1) Sous réserve du paragraphe
(3), le ministre attribue, sur demande, la citoyenneté à la personne adoptée
par un citoyen le 1er janvier 1947 ou subséquemment lorsqu’elle était un
enfant mineur. L’adoption doit par ailleurs satisfaire aux conditions
suivantes :
a) elle a été faite dans l’intérêt supérieur de l’enfant;
b) elle a créé un véritable lien affectif parent-enfant entre
l’adoptant et l’adopté;
c) elle a été faite conformément au droit du lieu de l’adoption et
du pays de résidence de l’adoptant;
[…]
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In addition to section 117(1)(g)(i)
and (ii) of the Immigration and Refugee Protection Regulations.
VII. Standard of Review
[17]
The Visa Officer’s assessment of evidence required by
section 5.1 of the Citizenship Act attracts the standard of reasonableness
(Kaur v Canada (Minister of Citizenship and Immigration), 2013 FC 1177; Satnarine
v Canada (Minister Citizenship and Immigration), 2012 FC 91, 404 FTR 135).
Consequently, this Court will not intervene if the decision is justified,
transparent and intelligible, and if it falls “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
VIII. Analysis
[18]
The Applicants dispute several of the Officer’s factual
findings. They insist that the evidence on file contradicts those findings.
[19]
Having carefully reviewed the record, the Court cannot
agree with the Applicants. The Court is of the view that the Officer had more
than sufficient grounds to justify her conclusions.
[20]
In their submissions, the Applicants provided few
details regarding the adoption or the circumstances leading up to it. The
little information that was provided to the Officer is confusing and
contradictory. For instance, in their interview, the Applicants and Kamaljeet
provided different locations of where the adoption took place. No reasonable
justification was provided to explain this discrepancy. It thus remains
unclear as to where the ceremony actually took place, if at all. As established
in Dhadda v Canada (Minister of Citizenship and Immigration), 2011 FC
206, the ceremony is a key factor in determining the validity of an adoption in
India; there is a requirement for a physical “giving and taking” of the
child. This was not reasonably established in the present case.
[21]
Likewise, the Applicants provided little evidence to
demonstrate that a genuine parent-child relationship existed. While an ongoing
relationship and contact with a natural parent may still occur in cases of
adoption, the Applicants had the burden to establish that they had, not only
legally, but practically, taken on the role of parent in Kamaljeet’s
life (Adejumo, supra).
[22]
There was little evidence that the Applicants provided
emotional support to Kamaljeet since the adoption (minimal communication), and
no evidence of any financial support. It would appear rather, that her aunt
(and Power of Attorney), Mrs. Ranjit Kaur, and her husband, Mr. Davinder Singh,
have emotionally and financially supported Kamaljeet since her adoption by the
Applicants in 2009. While the Court acknowledges that Mr. Singh earns money by
cultivating lands owned by Mr. Rai, which he then uses to support his wife and
Kamaljeet, the Court does not consider this to be financial support by the
Applicants for their adoptive daughter.
[23]
On this issue, the Court finds that the Officer
reasonably concluded that there was no genuine parent-child relationship
between Kamaljeet and her adoptive parents.
[24]
In his affidavit, Mr. Rai alleges that he and his wife
provided the Officer with proof of communication with their adoptive daughter
through telephone statements and birthday cards they had sent to Kamaljeet;
however, as correctly pointed out by the Respondent, most of the documents to
which they refer postdate the interview process. Moreover, the Officer
confirmed in a sworn statement that these documents were not in the record
before her (Affidavit of Stella Sweetman Griffin, Applicant’s Record at p 128).
Based on these facts, the Court cannot consider this evidence in the judicial
review of the Officer’s decision. The scope of evidence in an application for
judicial review is restricted to the material that was before the
decision-maker (Dezameau v Canada (Minister of Citizenship and Immigration),
2010 FC 559, 369 FTR 151).
[25]
In addition to the above, the Applicants also failed to
provide the Officer the required documentation to establish that the adoption
met the requirements of the Hague Convention on adoption, whose object
is to establish safeguards to ensure that inter-country adoptions take place in
the best interests of children, and the requirements of the laws in Canada. The
Applicants received clear notice in the Officer’s letter of July 24, 2012 that
the application could not succeed without these key documents.
[26]
The Court finds that the Officer was open to determine
that it was not in Kamaljeet’s best interest to permit her immigration to Canada in light of these missing documents.
[27]
The Applicants explained that they are continuing their
efforts to obtain the relevant documentation required to make Kamaljeet
eligible for Canadian citizenship. Unfortunately, such efforts are not
sufficient to impugn the Officer’s decision.
IX. Conclusion
[28]
For all of the above reasons, the Applicants’
application for judicial review is dismissed.
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