Punia v. Canada (Minister of Citizenship and Immigration), docket IMM-4627-98

Date: 19990525

Docket: IMM-4627-98

BETWEEN:

     JAGDEEP SINGH PUNIA

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER AND ORDER

CAMPBELL J.

[1]      The applicant challenges by way of judicial review the decision of the Immigration and Refugee Board (Appeal Division) ("IAD"), dated 19 August 1998, in which the IAD dismissed the applicant"s appeal from a visa officer"s refusal to approve the application for landing made by his adopted son.

Background

[2]      The applicant, Jagdeep Singh Punia, is a permanent resident of Canada, having been granted landing on 10 December 1986. He and his wife have three young daughters, born in 1990, 1991, and 1996. The applicant works as a delivery driver for a dry cleaner.

[3]      The couple adopted a son, Jagtar, whose biological father is a distant cousin of the applicant, in India in January 1994, when Jagtar was 12 years old. After the adoption, the applicant arranged for his son to live with Hardam Singh Khatra, who was later given power of attorney to act as the child"s guardian. The applicant sends money for the child"s support and maintenance to the guardian. On 5 September 1995, Jagtar submitted an application for permanent residence in Canada to the Canadian Embassy in New Delhi. A visa officer interviewed Jagtar, his biological parents, his guardian, and the applicant on 25 January 1996 in India.

[4]      The child"s application was subsequently refused, and the applicant appealed that decision and a hearing was held before the IAD on 2 June 1998.

The IAD"s Decision

[5]      The IAD stated that the issues before it were whether a genuine parent-child relationship had been created, and whether the adoption was for the improper purpose of gaining Jagtar"s admission into Canada. Its negative decision is based on several inconsistencies and contradictions it found in three areas of the evidence: the reasons for the adoption, the nature and frequency of contact between the applicant and Jagtar, and the applicant"s second visit to India in early 1996.

[6]      The IAD noted that the applicant stated at the interview with the visa officer that he had developed an attachment to Jagtar before he immigrated to Canada, and that he wanted to adopt after his wife had complications during the delivery of her first two children. At the hearing, however, the applicant testified that the attachment to Jagtar formed when he and his family visited India from 16 October 1993 to 14 February 1994, and it was at that time that the applicant decided to adopt Jagtar.

[7]      The IAD stated that the applicant should have been more consistent in his reasons for the adoption, and that his failure to allude to the reasons he gave the visa officer indicate that his motives are "suspect."

[8]      With regard to the second area, the nature and frequency of contact between the applicant and Jagtar, the IAD concluded that the discrepancies in the evidence indicate that contact has not been regular, which is inconsistent with a genuine parent-child relationship. The applicant testified that the guardian, with whom Jagtar resides, has had a telephone in his house since 1995. Connections are sometimes difficult, so the guardian often uses a public telephone or his neighbour"s telephones. During the interview with the visa officer, however, the guardian stated that he does not have his own telephone.

[9]      The applicant also testified that he had written four or five letters to his son before deciding to rely mainly on telephone contact, in late 1994 or early 1995. At the interview, however, the guardian stated that the applicant writes letters every month.

[10]      The third area of the applicant"s evidence which the IAD had difficulties with concerns the applicant"s second trip to India from 31 December 1995 to 26 January 1996 (the applicant"s first visit encompassed the adoption). The applicant went alone on this trip, and part of the purpose was to attend the visa interview on 25 January 1996. The applicant testified that he spent two nights at the guardian"s house, and the other nights at various relatives" homes. He testified that he would spend the mornings and evenings with Jagtar, when the boy was not in school. At the visa interview, the guardian told the visa officer essentially the same story.

[11]      The IAD took issue not with any inconsistencies or contradictions in this portion of the evidence, but rather with its plausibility. The IAD simply did not believe the applicant would return to the guardian"s house in the manner he says he did. The IAD stated:

The panel cannot accept that a genuine father would not take the opportunity to spend more time with his adopted son during a visit that totalled more than three weeks. The panel would expect that the appellant would have made arrangements to visit the applicant when he was not in school in order to spend more time with him. Furthermore, there has been only one visit by the appellant to see the applicant in almost four years since the adoption. The panel finds that the appellant has not attached sufficient importance to visiting the applicant which is not consistent with a parent and child relationship. 1

Analysis

[12]      In Canada (MCI) v. Erada ² the Court stated that there are two hurdles for the applicant to cross in order to be successful before the IAD in a case such as this one. First, the foreign legal requirements of adoption must be satisfied. Second, a genuine parent-child relationship must be established, pursuant to section 2(1) of the Immigration Regulations.

[13]      The first hurdle is not in issue in this case. This case turns on the second hurdle, which involves the nature of the parent and child relationship.

[14]      As noted, the IAD expressed concerns about the evidence in three subject areas. Each of these concerns require examination.

[15]      The first area is with regard to the applicant"s reasons for adopting. When asked by the visa officer why he wanted to adopt, the applicant stated that his wife does not want any more babies and is scared because she had complications during her first two deliveries; the couple also wished to have a son of their own. The couple chose Jagtar because the applicant is distantly related to him, and he states that he used to visit Jagtar"s family and grew attached to the child. ³ At the hearing before the IAD, the applicant stated that he already had two daughters and was worried that his wife would give birth to another. Having a son was very important to him for cultural reasons where sons are more highly prized than daughters, and he was also aware of his increasing age. He testified that during the family"s visit to India, they all grew attached to Jagtar, whom they encountered when they visited the applicant"s rather large extended family. ⁴

[16]      It is difficult to see how these answers can be described as inconsistent with each other. If anything, they are complementary and the applicant"s testimony merely elaborates on what must have been much more than a simple decision capable of being explained by a simple reason.

[17]      With regard to the second area of difficulty for the IAD, the nature and frequency of contact, the applicant stated at the interview that the guardian has a telephone. He further stated that he gives a message to someone and the message is then conveyed to the guardian, and that they speak twice a week if there is an "emergency" and other times after a couple of weeks. The guardian, however, stated that he did not have a telephone, but that he and the child call the applicant who then calls back. The frequency is every month or two. The guardian also produced three letters to show the visa officer. ⁵ At the hearing, the applicant testified that he and his son speak at least once a month, and that sometimes his son will phone him from a public telephone when he is sad. ⁶ He testified that the guardian had a telephone installed after 1995, although he was not entirely sure. He also testified that if he cannot get through to the guardian"s house, he calls neighbours. ⁷

[18]      The applicant testified that he initially wrote a couple of letters to his son, but then became too busy and so they relied on the telephone for contact. He also indicated that they sent birthday and Christmas cards. When the IAD attempted to get the applicant to give a specific number of letters, he replied that he wrote four or five, but that he was not sure and he could have written more. ⁸

[19]      The only real discrepancy in this area of the evidence relates to the matter of whether the guardian has a telephone. The applicant testified he did, but the guardian told the visa officer he did not. Aside from this, however, the applicant and the guardian indicated that telephone calls were made from India using public telephones and neighbours" telephones. The applicant also testified that he sometimes telephoned the neighbours in order to get in touch with his son. In my opinion, this minor discrepancy is insufficient evidence upon which to base a finding that the applicant is not credible.

[20]      Finally, with regard to the applicant"s second trip to India, there are no inconsistencies between the applicant"s testimony and the guardian"s statements to the visa officer. Nothing in the IAD's decision supports its finding that there is nothing credible to support the applicant"s contention that he visited with his son before and after school. And while the IAD expects that the applicant should have scheduled his visit when the child was not in school, the IAD appears to overlook or discount the applicant"s strategy during his visit, viz. spending time with Jagtar in the mornings and evenings. Moreover, the applicant was also in India at that time for the purpose of attending at an interview with the visa officer. The IAD's conclusions in this area are unsupportable.

[21]      In the result, the IAD appears to have made findings regarding the plausibility of the applicant"s evidence that are not supported by valid reasons. The evidence indicates that the applicant and his wife wanted to adopt Jagtar because he was a distant relative of the applicant, he was a boy, and the entire family had formed an attachment to him. The adoption ceremony took place, and thereafter the applicant removed Jagtar from his biological parents" custody, chose a guardian, and placed Jagtar in that person"s care. The applicant provided money for his son"s support and maintenance, kept in contact with him at first by letter, and then later by telephone, and visited him once in India.

[22]      I find that the IAD's conclusions respecting the evidence were reached in reviewable error under s. 18.1 (4) (d) of the Federal Court Act in that they were reached without regard to the evidence.

[23]      Accordingly, the decision is set aside and the matter is referred back for reconsideration before a differently constituted panel.

     "Douglas R. Campbell"

     JUDGE

Calgary, Alberta

May 25, 1999

[24]     

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS ON THE RECORD

COURT FILE NO.:      IMM-4627-98

STYLE OF CAUSE:      JAGDEEP SINGH PUNIA v. MCI     

PLACE OF HEARING:      CALGARY, Alberta

DATE OF HEARING:      May 21, 1999

REASONS FOR ORDER AND ORDER OF CAMPBELL, J.

DATED:      May 25, 1999

APPEARANCES:

Mr. Charles Darwent      for the Applicant

Mr. B. Hardstaff      for the Respondent

SOLICITORS OF RECORD:

Darwent Law Office

Calgary, Alberta      for the Applicant

George Thomson

Deputy Attorney General of Canada

Ottawa, Ontario      for the Respondent

__________________

¹      Applicant"s application record ["AR"], p.17.

²      (1996), 108 F.T.R. 60 (T.D.).

³      See AR, visa officer"s notes, p. 12.

⁴      See hearing transcript, pp. 7, 11-12, 15, 22-24.

⁵      AR, visa officer"s notes, p. 12.

⁶      Hearing transcript, pp. 10-11, 25, 26.

⁷      Ibid. pp.25, 26.

⁸      Hearing transcript, pp. 10, 20, 25-26.