Date: 20160215
Docket: IMM-2429-15
Citation:
2016 FC 193
Ottawa, Ontario, February 15, 2016
PRESENT: The
Honourable Mr. Justice Manson
|
BETWEEN:
|
|
SURINDER KAUR
GILL
JASKARAN SINGH
GILL
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of
the decision of an Immigration Officer at the High Commission of Canada in New
Delhi, India, dated June 12, 2015, concluding that the Applicant was not a
“dependent child” of the principal Applicant as defined in section 2 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [the Regulations], and was
therefore not a member of the Family Class.
II.
Background
[2]
Surinder Kaur Gill [the principal Applicant] and
her adopted son, Jaskaran, the second named Applicant in this judicial review
(collectively, “the Applicants”) are citizens of India. The principal
Applicant, with her late husband, Nirmal, has four daughters who currently
reside in the United Kingdom, Canada, India and the United States.
[3]
Jaskaran was born September 15, 1993, and was allegedly
adopted into the Gill family around October 20, 1995. Jaskaran is the son of
the principal Applicant’s sister, Manjeet, who died in 1995, shortly after the
birth of her second son. Prior to her death, Manjeet and her husband Nishan
agreed to give Jaskaran in adoption to the principal Applicant and her husband,
since they had no sons of their own.
[4]
The principal Applicant states that Jaskaran was
two at the time of his adoption and grew up with the principal Applicant and
her husband as his parents.
[5]
The principal Applicant’s affidavit sets out
that a small ceremony of adoption was held in the village where Manjeet and
Nishan had been living in 1995, shortly following Manjeet’s death. At that
time, the principal Applicant and her husband did not formalize the adoption
legally with an Adoption Deed, as she claims they did not understand the
necessity of doing so. Despite the lack of legal adoptive documents, Jaskaran
was treated as a son and as a brother to the principal Applicant’s four
daughters: he lived as part of the Gill family, was included on the family
Ration Card, was known in the community to be their son, and lit the funeral
pyre at his adoptive father’s funeral.
[6]
In November 2004, the principal Applicant and
her husband obtained an Adoption Deed, upon learning from village elders that
Jaskaran would not be eligible to inherit his adoptive father’s property
without a formal deed. Jaskaran’s name change to Jaskaran Singh Gill was also
published in a local newspaper at that time.
[7]
Until the Adoption Deed was executed in 2004,
Jaskaran’s school documents listed his biological parents as his parents, which
the principal Applicant explains is simply because they were indicated on his
birth certificate. Post-2004, the principal Applicant and her husband were
indicated as Jaskaran’s parents.
[8]
In May 2008, the principal Applicant’s daughter
filed an application to sponsor the principal Applicant, her husband, and
Jaskaran for permanent residence in Canada as members of the Family Class.
[9]
By letter dated January 6, 2015, the Applicants
were asked to attend an interview on February 24, 2015, at the High Commission
of Canada in New Delhi, India. The letter requested that the principal
Applicant bring a number of documents, including evidence establishing a
relationship to her dependents and power of attorney or guardianship documents
for adoptive children. The principal Applicant brought the original Adoption
Deed, the Ration Card, Jaskaran’s school documents, the newspaper article
noting Jaskaran’s name change, and many family photos showing the Gill family,
Jaskaran included, over the years. According to the principal Applicant, the
Officer did not look at any of these supporting documents in the interview.
[10]
During the interview the principal Applicant was
asked three times whether the “giving and taking
ceremony” – as required under section 11 of the Hindu Adoptions and
Maintenance Act, 1956 [HAMA] – had taken place, to which she replied
“we didn’t [have] any ceremony… no we never did a
giving and taking ceremony”, as there was no such tradition. The
principal Applicant claims she did not understand the legal requirements of
adoption in India, and thus to what the Officer was referring. The Adoption
Deed conveys a small ceremony was held at the time of the adoption, and the
principal Applicant claims everyone in her family and community knew that
Jaskaran lived with them as their son since 1995. She does not recall details
of the ceremony.
[11]
Jaskaran was also separately interviewed by the
Officer on February 24, 2015. Although the principal Applicant had claimed
Jaskaran was adopted and had lived with her since 1995, Jaskaran informed the
Officer he had only begun living with the principal Applicant in 2004.
[12]
A decision letter from the Officer, dated April
25, 2015, and the Global Case Management System [GCMS] notes taken in relation
to the interviews of the Applicants constitute the Officer's reasons for his
decision.
A.
Decision Letter
[13]
In the decision letter, the Officer began by
setting out the definition of “dependent child” in section 2 of the
Regulations. The Officer indicated that HAMA governs Hindu adoptions in
India and applied to Jaskaran’s adoption by virtue of subsection 2(1)(b) which
brings Sikhs under its application. Subsection 5(2) stipulates that adoptions
not made in accordance with HAMA are void and do not create rights in
the adoptive family.
[14]
Section 11 of HAMA sets out conditions
for a valid adoption, stating that in every adoption “the
child to be adopted must be actually given and taken in adoption by the parents
… with intent to transfer the child from the family of its birth …to the family
of its adoption” (subsection 11(vi)).
[15]
The Officer noted that the Adoption Deed, executed
November 22, 2004, indicated that the physical giving and taking for Jaskaran’s
adoption had occurred October 20, 1995, which was inconsistent with the
principal Applicant’s statements at the interview that no such ceremony had
taken place and was also inconsistent with Jaskaran’s position during his
interview.
[16]
The Officer also referenced the Supreme Court of
India’s decision in Lakshman Singh v Rup Kanwar (AIR 1961 SC 1378) [Lakshman
Singh], wherein it found there cannot be a valid adoption without the
giving and taking ceremony. Although it is essential to have a formal ceremony,
no particular form is prescribed and the nature of the ceremony may vary
depending upon the circumstances of each case.
[17]
The Officer was not satisfied a physical giving
and taking for Jaskaran’s adoption had taken place as required under HAMA,
and thus the adoption was void. Furthermore, execution of the Adoption Deed did
not, per se, validate the adoption. Accordingly, the Officer concluded
that Jaskaran is not a dependent child according to the Regulations.
[18]
The Officer also considered the application and
surrounding circumstances according to subsection 25(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 [Act], concluding that
humanitarian and compassionate [H&C] considerations did not justify
granting permanent residence or exemption from criteria under the Act.
B.
GCMS Notes
[19]
The Officer’s GCMS notes detail the interview
questions and Applicants’ responses. Of particular importance are the principal
Applicant’s following answers:
Q: Do you have photos of the “giving and
taking” ceremony? We didn’t (sic) any such ceremony Q: Why not? We don’t have
any such tradition.
Q: On what basis did Jaskaran’s biological
parents give him up to you for adoption? They gave him to us because we had no
sons. My sister died shortly after giving birth to her second son. They gave
Jaskaran to us after Gurkeert was born. My sister had said that if she had
another boy, they would have given Jaskaran to us …
[20]
In his separate interview with Jaskaran, the
Officer’s notes indicate that Jaskaran stated he had resided with the principal
Applicant since 2004. Jaskaran had not severed ties with his biological
siblings or father, although he does not see them on a regular basis.
[21]
The Officer noted his concerns as follows:
Adoption is said to have occurred when
Jaskaran Singh was one to two years of age, however adoption deed was created
in 2004 when he would have been approximately 11 years of age. SPR [Sponsor –
one of the principal Applicant’s daughters] immigrated to Canada in 2005. It
appears highly coincidental that adoption deed was made in 2004, shortly before
SPR immigrated to Canada. – No official adoption “giving and taking” ceremony
is said to have taken place. This seems highly unusual and is contrary to
established traditions and norms. – There is very limited evidence to confirm
that [the principal Applicant] took Jaskaran Singh in adoption at the age of
one or two… I am satisfied that the adoption of Jaskaran Singh Gill is not genuine
[22]
Regarding H&C considerations, the Officer
noted that Jaskaran is now 21 years old and is actively pursuing studies. He
appears to have good living arrangements in India and there is no reason why
they cannot continue. His biological family resides near to him and they
maintain some contact. Furthermore, the Officer noted Jaskaran has not
indicated any apparent threat to his life.
III.
Issues
[23]
The issues are as follows:
A. Was there a breach of procedural fairness?
B.
Was the Officer’s decision reasonable?
IV.
Standard of Review
[24]
The parties agree that the standard of reasonableness
governs discretionary decisions and questions of mixed fact and law, including
an Officer’s determination of whether someone is a “dependent child” pursuant
to the Regulations and an Officer’s assessment of a foreign adoption’s validity
in accordance with foreign law (Boachie v Canada (Minister of Citizenship
and Immigration), 2010 FC 672 at para 21; Singh Dhadda v Canada (Minister
of Citizenship and Immigration), 2011 FC 206 at para 4).
[25]
The issues of natural justice and procedural
fairness are reviewable on a correctness standard (Canada (Minister of Citizenship
and Immigration) v Khosa, 2009 SCC 12 at para 43).
V.
Analysis
A.
Was there a breach of procedural fairness?
[26]
The Applicants submit the Officer breached the
duty of fairness by failing to properly inform them that the February 24, 2015
interview was exclusively related to Jaskaran’s adoption. The letter inviting
them to the interview was a form letter that requested they bring along numerous
documents, some completely unrelated to their case. It in no way informed them
of the nature of the interview or of the Officer’s concerns with their
application.
[27]
As well, the Applicants were not given an
opportunity to address the Officer’s concerns that there was insufficient
evidence demonstrating that Jaskaran was adopted at age two, as outlined in the
decision letter. The Applicants concede in their Reply Memorandum that the
Officer alerted them to his concerns at the interview, however, they argue that
the lack of advance warning was procedurally unfair because it denied them of
the opportunity to adequately prepare, and once appraised of the Officer’s
concerns, to respond or provide further documentation, as his decision was
final.
[28]
The Applicants rely on Justice Richard Mosley’s
decision in Rukmangathan v Canada (Minister of Citizenship and Immigration),
2004 FC 284, to stand for the principle that visa officers may be required to
alert applicants to their particular concerns in applications “so that an applicant may have a chance to “disabuse” an
officer of such concerns, even where such concerns arise from evidence tendered
by the applicant” in order to comply with the duty of fairness (para
22).
[29]
Alternatively, the Applicants assert that the Officer
breached the duty of fairness by concluding that they provided “limited
evidence” that Jaskaran had been living with his adoptive parents since he was
two. The Officer did not examine any of the original documents the principal
Applicant had been specifically instructed to bring to the interview, which
include the Gill family Ration Card listing Jaskaran as “son”, and many family
photographs evincing the parent-child relationship that had been ongoing for
many years.
[30]
Instead, the Officer simply determined that
Jaskaran’s adoption did not comply with HAMA, that there was a lack of
evidence he was adopted at the time claimed, and that accordingly he was not a
“dependent child”.
[31]
In my opinion, it was not a breach of procedural
fairness that the letter scheduling the interview did not explicitly state
Jaskaran’s adoption was a central issue.
[32]
While I disagree with the Respondent that the
adoption was plainly at issue, as simply requesting in a standard form letter
that various documents be brought and that adopted children accompany at the
time of the interview does not convey that the validity of the adoption was of
concern to the Officer, the purported lack of advance warning was not
procedurally unfair. The Applicants were not denied any opportunity to adequately
prepare: they were instructed to bring pertinent documents to the interview, including
documents relating to adoption, which they did.
[33]
Nor do I find merit in the Applicants’ arguments
that the Officer did not alert them to his concerns, as the GCMS notes clearly
indicate that the Officer did convey his concerns surrounding the adoption, at
least to the principal Applicant, during the interview.
[34]
Whether the Officer considered the documentation
the Applicants brought to the interview is difficult to discern. The principal
Applicant states in her affidavit that at no point during the interview did the
Officer look at any of the documents she had been requested to bring, and which
evince the Applicants’ parent-child relationship since before 2004. However,
the GCMS notes indicate the Officer was at least aware that the principal
Applicant had not provided any photos of the “giving and taking” ceremony,
which he would not know without having reviewed the documents.
[35]
A review of the evidence demonstrates there are
several photographs of Jaskaran with the principal Applicant and her husband at
ages younger than 11 years old. While these evince a relationship between the
Applicants, the photos do not confirm the adoption occurred when Jaskaran was
one or two, as the Officer stated. I do not find that his conclusion
demonstrates documents were not reviewed, or that there was a breach of natural
justice.
B.
Was the Officer’s decision reasonable?
(1)
The Officer’s decision on the validity of the Adoption
[36]
The Applicants accept that HAMA governs
adoptions in India, but they reference section 16 (not referenced in the decision
letter), which indicates if there are registered legal documents relating to
adoption, the adoption is presumed to have been made in compliance with HAMA,
unless and until disproved.
[37]
In the present case, the Adoption Deed states
there was a “giving and taking” of Jaskaran in 1995. This is discounted by the
Officer because it contradicted the principal Applicant’s statements during the
interview that no such ceremony took place. However, the Applicants point out
that HAMA does not set out requirements for “giving and taking”, and
does not necessitate a formal ceremony. Instead, all that is required is that
the “child to be adopted must actually be given and
taken in adoption by the parents or guardian concerned” pursuant to
subsection 11(vi). The Applicants submit there is evidence this requirement has
been complied with; the principal Applicant specifically stated in the
interview that her sister “gave him to us because we
had no sons… They gave Jaskaran to us after Gurkeert was born”.
[38]
The Applicants argue that the Adoption Deed
provides presumptive prima facie evidence of the validity of the
adoption, and the Officer acted unreasonably by assigning this evidence little
weight. Although execution of a deed is not a substitute for the act, the
Applicants claim that section 16 of HAMA creates a presumption that the
adoption was compliant, which has not been rebutted. The principal Applicant
argues that her statement in the interview that no such ceremony had taken
place is insufficient to rebut the presumption. This is particularly
considering that the principal Applicant’s affidavit conveys she did not
understand what the Officer was referring to at the time.
[39]
The Applicants submit that the evidence before
the Officer established that Jaskaran’s biological father had given him to the
principal Applicant and her husband following her sister’s death in 1995. This
is confirmed in the Adoption Deed and by the principal Applicant in her
interview. Indian Law does not proscribe what kind of ceremony must take place,
simply that the child is given and taken in adoption – precisely what happened
in this case. Thus, the adoption complied with HAMA, and it was
unreasonable for the Officer to require a formal ceremony.
[40]
The Respondent cites Singh v Canada (Minister
of Citizenship and Immigration), 2012 FC 1302, in support of his argument
it was reasonable for the Officer to conclude the alleged adoption is not
valid. At paragraphs 11 and 12 of that decision, Justice Russell Zinn states:
11 I further agree with the respondent
that the facts at hand more closely parallel, in fact almost identically, those
in Dhadda v Canada (Minister of Citizenship & Immigration), 2011 FC
206 (FC), 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.
[41]
Other cases of this Court have confirmed an
adoption is not valid in accordance with the laws of India in the absence of
the “giving and taking ceremony” (Sahota v
Canada (Minister of Citizenship and Immigration), 2015 FC 756 at paras 56 –
60 [Sahota]; Dhindsa v Canada (Minister of Citizenship and
Immigration), 2006 FC 1362 at para 21, 34; Rai v Canada (Minister of Citizenship
and Immigration), 2014 FC 77 at para 20).
[42]
While I may disagree with the Officer’s weighing
of the evidence, I agree with the Respondent that the Officer’s decision was
reasonable.
[43]
The Officer placed more weight on the
Applicants’ answers in the interview than on the Adoption Deed, which he was
entitled to do so long as it fell within the range of reasonableness.
[44]
The Officer was aware of case law by the Supreme
Court of India commenting on the validity of adoptions. It is the Officer’s
role, not the Court’s upon judicial review, to assess and weigh the evidence.
The Court is not to intervene unless the Officer’s decision falls outside the
range of acceptable outcomes, defensible on the facts and law. There is
evidence supporting the Officer’s conclusion, and the reasons provided in the
refusal letter and GCMS notes are intelligible, justified and transparent.
[45]
While I am sympathetic for Applicants, as it
appears that an inadvertent legal technicality (giving and taking and proof
thereof) effectively precludes Jaskaran’s inclusion on the sponsorship
application, the adoption was not considered by the Officer to be legally valid
when it allegedly commenced (in 1995), and also was not properly carried out
upon legally formalizing it with the Adoption Deed (no giving and taking in
2004). Applying the deferential standard of review, and in the face of some
conflicting evidence, the Officer’s decision is reasonable and open to him on
the facts and evidence.
(2)
The Officer’s evaluation of relevant evidence
[46]
The Regulations define “adoption” as creating a
legal parent-child relationship and severing the pre-existing parent-child relationship.
[47]
The Applicants submits that the Officer erred by
ignoring relevant evidence that demonstrated the genuine nature of the
relationship between the Applicants, including the Adoption Deed and Jaskaran’s
school records listing the principal Applicant and her husband as his parents.
Although Jaskaran’s school documents pre-dating the Adoption Deed (prior to
November 2004) list his biological parents as his parents, this is simply
because they had not legally formalized the adoption.
[48]
The Applicants claim the Officer erred by
failing to engage in a thorough analysis of the genuineness of the relationship
between the Applicants. In assessing whether an adoption is genuine, the Applicants
submits that the Officer should have considered the non-exhaustive factors set
out by the Immigration Appeal Division in Guzman v Canada (Minister of
Citizenship and Immigration), [1995] IADD No 1248, to assist in assessing a
relationship of parent and child.
[49]
The Applicants also rely on Jeerh v Canada (Minister
of Citizenship and Immigration), [1999] FCJ No 741 [Jeerh], wherein
the Court confirmed the totality of the evidence must be considered when
determining the relationship between the adopted parent and adopted child. In
that case, Justice Karen Sharlow, as she then was, found the Officer’s
conclusion that a genuine parent-child relationship did not exist “difficult to
reconcile” with the undisputed legal validity of the adoption.
[50]
The Applicants also cites Sinniah v Canada (Minister
of Citizenship and Immigration), 2002 FCT 822 [Sinniah], where
Justice Eleanor Dawson, as she then was, stated:
15 The issue of the bona fides of an
adoption is a question of fact. The Immigration Appeal Division has written
that it is necessary to consider a number of factors when considering the bona
fides of an adoption, including the motivation for the adoption, the extent to
which adoptive parents have maintained care and control over the child since
the adoption, the knowledge and understanding the adoptive parents have of the
adopted child and vice versa, and the plans and arrangements made for the
child's future.
[51]
The Applicants’ submit the Officer did not
thoroughly analyze the genuineness of the Applicants’ parent-child
relationship, and erred by focussing solely on the issue of the adoption’s
legality under HAMA.
[52]
While it is true that in assessing the presence
of a genuine parent-child relationship, an Officer is required to thoroughly
review the evidence and take into account a variety of factors, the adoption
must also be valid in the country in which he or she was adopted. The Officer
in this case determined that Jaskaran’s adoption did not comply with the laws
of India governing adoptions, and thus, he was not required to consider whether
a genuine parent-child relationship existed. As a legal parent-child
relationship had not been established – this was not unreasonable, or in error.
Email this Content