Docket:
T-1083-13
Citation: 2013 FC 1177
Ottawa,
Ontario, November 20, 2013
PRESENT: The Honourable Mr. Justice Phelan
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BETWEEN:
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KULWINDER KAUR
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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. INTRODUCTION
[1]
This is an appeal of a denial of the citizenship
application of Ms. Kulwinder Kaur. The application was grounded on her adoption
in India by Canadian citizens. The Citizenship Officer [Officer] dismissed the
application which was governed by s 5.1(1) of the Citizenship Act, RSC
1985, c C-29 [Act].
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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
(d) was not entered into primarily for the purpose of acquiring a
status or privilege in relation to immigration or citizenship.
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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;
d) elle ne visait pas principalement l’acquisition d’un statut ou
d’un privilège relatifs à l’immigration ou à la citoyenneté.
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II. BACKGROUND
[2]
The Appellant is a citizen of India. She was “adopted” by her Canadian aunt and uncle in 2002 when she was 13 years old. She is a
member of the Sikh faith.
[3]
The Appellant claimed that she was adopted in
accordance with the Hindu Adoption and Maintenance Act, 1956, an Indian
statute, as required pursuant to paragraph 5.1(1)(c) of the Act. A Deed
of Adoption was issued in September 2002. Despite the adoption allegedly having
taken place in 2002, it was not until 2010 that steps were taken to bring the
Appellant to Canada; the first step was an application for Canadian
citizenship.
[4]
It was accepted by the parties that Indian law
required a ceremony of the giving and taking of the child:
…there cannot be a
valid adoption unless the adoptive (child) is transferred from one family to
another and that can be done only by the ceremony of giving and taking. The
object of the corporeal giving and receiving in adoption is obviously to secure
due publicity. To achieve this object it is essential to have a formal
ceremony. No particular form is prescribed for the ceremony, but the law
requires that the natural parent shall hand over the adoptive (child) and the
adoptive parent shall receive (her). The nature of the ceremony may vary
depending upon the circumstances of each case. But a ceremony there shall be,
and giving and taking shall be part of it.
Lakshman Sigh v
Rup Kanwar, AIR 1961 SC 1378
[5]
The Officer was not satisfied that a physical giving
and taking was performed. The Appellant claimed that a small ceremony occurred
but the nature of the ceremony and its date was not clear. In particular, the
notes from the interview with the Appellant’s natural mother cast doubt on the
Appellant’s assertion that the ceremony had taken place as required.
[6]
The Officer relied on the test in Mayne’s
Treatise on Hindu Law and Usage (12 ed: 1986) to the effect that the mere
execution of a deed in connection with the giving and taking is not a
substitute for the physical act thereof. There was no dispute about this
finding.
[7]
In addition, the Officer concluded that the
Appellant had failed to establish that there was a genuine parent/child
relationship between the Appellant and her adopting parents. In this regard,
the Officer noted the following key facts:
•
The adopting parents did not establish a Power
of Attorney to care for the Appellant until 2010 when the Appellant was an
adult. The adopting parents left India in 2002 and only made periodic visits.
No Power of Attorney for the Appellant’s care was in place. The Power of
Attorney was established to assist with obtaining a passport so the Appellant
could leave India.
•
The Appellant had limited communication with her
adopting parents and she had limited knowledge of life in Canada.
•
There was no satisfactory explanation why the
adopting parents did not commence the process to bring the Appellant to Canada immediately after adoption. The excuse that these parents wished the Appellant to
obtain her education in India did not satisfy the Officer.
•
There was insufficient evidence that the
Appellant had severed ties permanently with the natural parents.
[8]
The Officer was not convinced that the adoption
was genuine and concluded that it was entered into primarily for the purpose of
acquiring Canadian citizenship.
III. ANALYSIS
[9]
The Officer’s decision on the merits of the
application is reviewable on a standard of reasonableness (Dufour v Canada (Minister of Citizenship and Immigration), 2013 FC 340). There is no issue on the
applicable laws of India.
[10]
The key issue in this appeal is a dispute about
the sufficiency of evidence to establish a genuine adopting parents/child
relationship. In this case the Officer had more than sufficient evidence to
justify the conclusion. To reach an opposite conclusion would have been
perverse.
[11]
This was a thorough and clear decision. Given
the lack of detail or the confusing details in the evidence submitted by the
Appellant, the Officer had good grounds to approach this application with care.
[12]
On the issue of the validity of the adoption,
the requirement for a physical giving and taking, as referred to in Dhadda v
Canada (Minister of Citizenship and Immigration), 2011 FC 206, was not
reasonably established.
[13]
On the issue of the creation of a genuine
parent/child relationship, there was an abundance of evidence to justify the
Officer’s conclusion. The overarching fact that the adopting parents did not
take steps to bring the Appellant to Canada at the first opportunity is so
inconsistent with adopting parents’ behaviour (whatever the cultural
background) such that it undermines the very fact of an adoption. It was open
to the Officer to reject the excuse of wanting the Appellant to study in India.
[14]
The reasonableness of the conclusion is reinforced
by the absence of a Power of Attorney when the Appellant was a young teenager
and likely in greater need; by the limited number of times the adopting parents
visited the Appellant; by the Appellant’s lack of knowledge about life in Canada. It was reasonable to see these deficiencies as more compelling than the vague
evidence of telephone calls and money transfers to the uncle in India who acted as attorney but also as agent for the adopting parents’ investments in India.
[15]
The Officer’s scepticism about the Power of
Attorney was justified. The fact that it was given when the Appellant was an
adult, when there was interest in coming to Canada and for purposes of
immigration requirements is suggestive of an adoption for immigration purposes
only.
[16]
I see no legal infirmity in the decision nor do
I accept that the Officer ignored the departmental Guidelines. Not only are
these Guidelines simply that, guidelines where not every factor must be
addressed, but the Officer fully addressed all the relevant points in those
Guidelines.
IV. CONCLUSION
[17]
I concluded that this decision looked at as a
whole and considered in respect of each important constituent part is
reasonable. Therefore, this appeal will be dismissed.
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