Docket:
IMM-4926-13
Citation: 2014 FC 134
Vancouver, British Columbia, February 6, 2014
PRESENT: The Honourable Mr. Justice Barnes
|
BETWEEN:
|
|
SURJIT SINGH AUJLA
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP & IMMIGRATION
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision made by the Immigration Appeal Division of the Immigration and Refugee
Board (the Board) on July 5, 2013. The Applicant, Surjit Singh Aujla,
challenges the Board’s finding that he failed to establish a genuine
parent-child relationship after completing the adoption of the 12-year-old
daughter of his cousin in India. This determination led to the refusal of Mr.
Aujla’s sponsorship application to bring his adopted daughter to Canada.
[2]
It is apparent from the Board’s decision that
the only issue of concern was the genuineness of the relationship and, in
particular, whether it was of sufficient strength that it would be
considered to be in the best interests of the child. All of the other
pre-requisites set out in ss 117(2) and (3) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the Regulations) appear to
have been met including the completion of a satisfactory home study, the proof
of parental consent and a valid Indian adoption.
[3]
The Board had a number of concerns about the
evidence presented by the Applicant. It noted the fact that, in the
preceding nine years, the Applicant’s wife visited the child only twice – once
at the time of the adoption in 2004 and once in 2012 on the occasion of her
son’s wedding. When asked why she did not accompany her husband on his regular
trips to India, she said that she was required to stay behind to prepare meals
for her two adult sons. The Board found that evidence not to be credible.
[4]
The Board found the daughter’s evidence to be
perfunctory and emotionally detached. She offered little detail about her
future plans in Canada and seemed almost neutral about the relationship.
Despite the Applicant’s evidence that he had plans for her marriage, she said
that the issue had never been discussed in over nine years of regular
communication.
[5]
The Board was also troubled by the stated
motives for the adoption. The Applicant and his wife claimed that, after having
two sons, they wanted a daughter. This was not possible because
the Applicant’s wife underwent a medically-necessary sterilization in
1981. The Board found this evidence to be inconsistent with what was reported
in the home study and in an earlier immigration interview. When the
inconsistency was raised during the hearing, the Applicant gave equivocal and
convoluted answers. The Board described this evidence as “a patchwork of
contradictions” and it was said to cast “substantial doubt on his credibility”.
The Board also noted that the decision to adopt was made when both parents were
over 50 years of age and more than 20 years after the wife’s sterilization.
[6]
The Board described the Applicant as “only
superficially conversant with respect to prospects for [his daughter’s] future”.
For example, the Applicant said he would “try” to have his daughter
continue with her education or, alternatively, she could work on the family
farm. This evidence was described as “devoid of any expression of the love
and affection that would reasonably be expected of a genuine parent-child
relationship”.
[7]
The Board did acknowledge the external trappings
of a parental relationship such as evidence of financial support and cards, but
it questioned the practice of sending only money on important occasions
like birthdays.
[8]
Finally, the Board expressed a concern about the
Applicant’s lack of detailed knowledge about his daughter’s activities and
interests. These discrepancies only added to the Board’s credibility concerns.
[9]
The Board concluded its assessment of the
evidence in the following way:
[36] The purpose
of the hearing of this appeal is to assess the evidence presented against the
precise tests that the Regulations state. The onus lies with the
appellant to demonstrate that the adoption created a genuine parent-child
relationship. To do so he must cross the threshold defined by the balance of
probabilities. I have examined the factors in this case accordingly, from
the perspective of the entire framework of evidence so as to assess equitably
their relative weight.
[37] There are,
as noted above, fundamental discrepancies and inconsistencies in the
evidence and in the testimony that the respondent counsel has properly
pointed to and that I have considered carefully. There are also some areas in
which the testimony is consistent, as the appellant counsel has noted and
there are some elements that are inconclusive because of the
natural tendencies of the witnesses towards a certain degree
of uncertainty in their respective recollections. The proposition advanced
by the appellant is that there exists a genuine parent-child relationship;
however, the evidence indicates a situation that is substantially
different. The nature of a genuine adoption is one of events,
interactions, and shared interests that develop more or less progressively
until they reach the threshold of a lasting bond. Above all, there must be
an abiding and mutual affection between the child and her adoptive
parents. I find that this is not the prevailing characteristic of the
relationship between the appellant and the applicant.
[38] The
inconsistencies and gaps in the witnesses’ testimonies outweigh the favourable
factors in this appeal. It is the sum of individual deductions, each determined
from the full context of the relevant circumstances and measured against the
scale of probability, that lead me to the conclusion that the adoption is not a
genuine one. I am led to the conclusion that the adoption did not create a
genuine parent-child relationship between the appellant couple and the
applicant and, therefore, that the adoption was not in the best interests of
the child within the meaning of the Hague Convention of Adoption. As a
consequence I find that the applicant is not a member of the family class by
virtue of the adoption, pursuant to Regulations 117(2).
[39] After
carefully considering all of the documentary and oral evidence, and the
submissions of both counsel I find that, on the balance of probabilities, the
appellant has not met the burden on him to prove that the adoption created a
genuine parent-child relationship pursuant to paragraph 117(3)(c) of the
Regulations. As a consequence the applicant is not a member of the
family class under subsection 117(2) of the Regulations.
[10]
The Applicant contends that the Board failed to
consider all of the factors identified in the Minister’s Guidelines. In
particular, it was argued that the Board failed to consider the validity
and the implications of the Indian adoption and much of the favourable
content of the home study report. It was also asserted that the Board paid
insufficient attention to documents such as the daughter’s passport, money
transfer receipts, police clearance reports, greeting cards and telephone
records. In oral argument, counsel for the Applicant asserted that the Board
focused only on minor or insignificant points to the exclusion of what was
truly important.
Issue
[11]
Was the Board’s decision reasonable?
Analysis
[12]
The parties agree that the standard of review
that applies is reasonableness and, specifically, whether the decision falls
within the range of acceptable and defensible outcomes based on the evidence
and the law.
[13]
In my view, the arguments advanced on behalf of
the Applicant amount to a plea to the Court to reweigh the evidence and to
substitute its judgment for that of the Board. That, of course, is not the
role of the Court on judicial review.
[14]
The Board had the benefit of hearing all of the
evidence. It was particularly troubled by the emotional detachment of the
parties and by the inconsistencies in their explanations for the timing and
motives for the adoption. Of additional concern was the Applicant’s wife’s
failure to regularly travel to India to visit her adopted daughter. The Board’s
negative characterization of her excuse for that failure was entirely
reasonable. In light of the wife’s clearly disingenuous answer, it was not unreasonable
for the Board to infer that she was substantially disinterested in her
daughter.
[15]
The criticism that the Board ought to have more
fully considered the validity of the Indian adoption and the corresponding
severance of the legal bonds with the birth parents is unwarranted. The
validity of the adoption was not in issue. The Board’s only concern was whether
there was sufficient evidence to establish a loving, caring and genuine
parent-child relationship. I accept that the outward trappings of such a
relationship (e.g. newspaper clippings, cards, phone records, money transfers),
the fitness of the parents and the general adequacy of the household are relevant
factors. They are, however, far less significant to the assessment than are the
expressions of awareness, affection and future hopes that one would expect to
hear and which, in this case, were found by the Board to be mostly lacking. It
was not unreasonable for the Board to base its conclusion on these important
considerations and to give less weight to the other evidence tendered by the
Applicant.
[16]
For the foregoing reasons, this application is
dismissed.
[17]
Counsel for the Applicant suggested the
following certified question:
Whether a valid
foreign adoption is pertinent to the assessment of the genuineness of a
parent-child relationship?
The answer to this
question is self-evident. A valid foreign adoption is a pre-requisite to an
adoption-based sponsorship. In some situations, it may also be relevant to the
assessment of the genuineness of the relationship. But in this case, the answer
to the question is not determinative and certification is not warranted.
Email this Content