Date: 19990512
Docket: IMM-3147-98
BETWEEN:
BALJINDER SINGH DEOL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
Background
[1] The applicant challenges by way of judicial review the decision of the Immigration and Refugee Board, Appeal Division (the "AIAD"), dated May 26, 1998, in which the IAD dismissed the applicant"s appeal from a refusal to approve the application for landing made by his adopted son.
[2] The applicant, Baljinder Singh Deol, is 44 years old, and is a permanent resident of Canada, having been granted landing on June 16, 1986; his wife, Bhupinder Kaur Singh, is also a permanent resident and was landed on September 5, 1993.
[3] The couple were married in India on June 12, 1992, and the following year the applicant"s wife became pregnant. However, she miscarried in August 1993, shortly before coming to Canada. For the next few months the applicant"s wife tried to get pregnant again, but to no avail. Consequently, about December 1993, the couple discussed the possibility of adoption, in part because the applicant was leery of becoming too old to be a father to a newborn.
[4] The applicant"s wife travelled to India in March 1994. The couple had decided to ask the applicant"s sister if they could adopt her eldest son, Gurjot, who was the second of five children. The applicant"s sister agreed, and an adoption ceremony was conducted in accordance with India"s Hindu Adoption Act on May 7, 1994. The applicant was unable to attend, but his wife stayed in India with the boy until August 1994; they moved in with the applicant"s wife"s cousin, Gurmit Singh, who was granted power of attorney on September 13, 1995 in order to act as Gurjot"s guardian. On November 14, 1994, the applicant filed a sponsorship application, and in May 1995, Gurjot filed for permanent residence.
[5] The applicant and his wife made several trips to India to visit Gurjot; they went together in March 1996 and October 1996. Although the applicant stayed for only one month each visit, his wife stayed for a longer time. The applicant"s wife made another visit in May 1997 for two months, and the applicant visited India from December 1997 until February 1998.
[6] The applicant and his wife maintained contact with Gurjot through monthly letters written, for the most part, by the applicant"s wife. There were also two phone calls in 1996, but none in 1994, 1995, 1997, or 1998 (until the date of the hearing).
[7] An interview was conducted with Gurjot"s biological parents by Ms. Nicole Brunet, the second secretary at the Canadian High Commission in New Delhi on April 24, 1996. By letter dated June 14, 1996, Ms. Brunet refused Gurjot"s application on the basis that there was no intent to transfer Gurjot from his biological parents to his adoptive family and, thus, a genuine parent-child relationship had not been created.
[8] The applicant appealed this decision and a hearing was held before the IAD on March 26, 1998.
The IAD"s Decision
[9] The IAD stated that there were several "significant inconsistencies and contradictions" in the applicant"s evidence as compared to his wife"s evidence, and said as follows:
| |
The panel notes that there was inconsistent evidence from the appellant and his wife regarding the applicant"s education. The appellant noted that the applicant is completing exams for class eight at an English medium school and will be starting class nine in April. The school is located three kilometres from the attorney"s home. The appellant testified that the applicant is a mediocre student who needs a tutor to help him study for his exams with a particular emphasis on Math and Science. The appellant"s evidence was inconsistent with his wife"s testimony. She stated that the applicant is a "B" student who has a tutor to help him with Math and English. The lack of consistency by the appellant and his wife regarding the applicant"s schooling indicates that they have not taken a level of interest that is consistent with a parent and child relationship. |
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[Applicant"s Record, p. 11] |
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[10] The IAD also found that the applicant"s conduct toward his son was not consistent with a parent-child relationship, and based this finding on the lack of telephone communication between them. The IAD noted the applicant"s explanation that there was no phone at the house where Gurjot was staying and it was difficult to coordinate phone calls because of the applicant"s long hours of work. However, the IAD found that the applicant could not explain to its satisfaction why his wife, who only started to work in October 1997, did not maintain regular telephone contact with Gurjot. The IAD stated it could not accept that "a genuine father and mother would not make the effort and take the opportunity to at least maintain regular contact with their adopted son." [Applicant"s Record, p.10]
Applicant"s Position
[11] The applicant submits that the IAD"s conclusion that he and his wife had failed to maintain regular contact with Gurjot is unreasonable, and that it disregarded his explanation that the nature of his work often prevented him from telephoning the boy on a regular basis. The applicant states that maintenance of regular telephone contact with his son cannot be determinative of whether he established a genuine parent-child relationship, and argues that in focussing on this point, the IAD failed to take into account the following other factors which established a genuine parent-child relationship:
| " Gurjot was living with the applicant"s wife"s cousin, and had severed all ties with his biological family; |
| " the applicant and his wife sent money and provided all the necessaries of life, as well as luxuries, and had improved Gurjot"s standard of living; |
| " they communicated by letters, and Gurjot referred to the applicant and his wife as "Mummy" and "Daddy"; |
| " the applicant"s wife spent a total of 18 months with Gurjot in India between March 1994 and July 1997; and |
| " the applicant went to India twice in 1996, and again from December 1997 to February 1998, for a total of 6 months. |
[1] With regard to the inconsistencies the IAD found concerning each parent"s knowledge of Gurjot"s education, the applicant submits that their characterizations of Gurjot as a B student and a mediocre student are nothing more than a difference of opinion. The applicant also submits that since his wife has spent almost half of each year with her son, it follows that she is more aware of her son"s performance in school.
Analysis
[1] Mr. Justice MacKay"s decision in Canada (MCI) v. Erada (1996), 108 F.T.R. 60sets out two hurdles for the applicant to surmount in order to be successful before the IAD. The first hurdle is whether the foreign adoption laws were satisfied, and the second hurdle involves determining whether a genuine parent-child relationship has been created.
[1] In the present case, the first hurdle was not contested by the respondent Minister. Thus, the focus is on the second hurdle and whether a genuine parent-child relationship has been established. On this point, the IAD made the critical finding that the testimony of the applicant and his wife contained inconsistencies and contradictions which, combined with the lack of regular telephone communication, indicated that a genuine parent-child relationship had not been established.
[1] With regard to the applicant"s characterization of Gurjot as a mediocre student and the applicant"s wife"s characterization of him as a B student, the IAD"s labelling of the difference as a contradiction, upon which it placed significant weight, is not in accordance with the evidence. In fact, when she was asked to describe her son as a student, the applicant"s wife said: "He"s okay, but medium, you can say, B grade" [Hearing Transcript, p. 68]. This statement is not so very different than her husband"s opinion that Gurjot is a mediocre student.
[1] With regard to the inconsistency surrounding the subjects in which Gurjot received tutoring, reference to the hearing transcript shows that the applicant testified that Gurjot receives help in "mostly math and science" [Hearing Transcript, p. 56]. The applicant"s wife testified that Gurjot receives help from his tutor in math and English, as well as anything else he does not understand when she is not there [Hearing Transcript, p. 74]. Again, the IAD appears to have seized on these similar answers as being contradictory and determinative of the case.
[1] Finally, the IAD"s conclusion that a genuine parent-child relationship had not been established due to the lack of regular telephone contact is contrary to the evidence. The applicant testified that there was no telephone at the house where Gurjot was staying and that it was difficult to arrange for calls from the public phone booth given his work schedule. The applicant offered an explanation as to why he did not telephone Gurjot regularly, and indicated that they kept in touch by letters which his wife wrote. In dismissing the applicant"s explanation, the IAD appears to be placing a high premium on telephone conversations, which, given the evidence of the real life circumstances of the parties, I find to be an unreasonable and unfair assessment.
[2] Therefore, I find that, pursuant to s.18.1(4)(d) of the Federal Court Act, the IAD"s decision was made without regard to the material before it. Accordingly, the IAD"s decision is set aside and the matter is referred back for redetermination before a differently constituted panel.
CALGARY, Alberta
May 12, 1999
[3]
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19990512
Docket: IMM-3147-98
BETWEEN:
BALJINDER SINGH DEOL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
[4]
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3147-98
STYLE OF CAUSE: BALJINDER SINGH DEOL v.
MINISTER OF CITZENSHIP AND IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: May 11, 1999
REASONS FOR ORDER OF CAMPBELL, J.
DATED: May 12, 1999
APPEARANCES:
Mr. Peter Wong for the Applicant
Mr. W. Brad Hardstaff for the Respondent
SOLICITORS OF RECORD:
Major Caron
Calgary, Alberta for the Applicant
George W. Thomson
Deputy Attorney General
of Canada
Ottawa, Ontario for the Respondent
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