Dockets: T-1389-14
T-1390-14
Citation:
2015 FC 756
Ottawa, Ontario, June 16, 2015
PRESENT: The
Honourable Mr. Justice Russell
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Docket: T-1389-14
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BETWEEN:
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JOGINDER SINGH SAHOTA
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GURMEET KAUR
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Applicants
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and
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THE MINISTER OF CITIZENSHP AND IMMIGRATION
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Respondent
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Docket:
T-1390-14
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AND
BETWEEN:
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JOGINDER SINGH SAHOTA
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JAGMOHAN SINGH SAHOTA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
There are two applications for judicial review
under s. 18.1 of the Federal Courts Act, RSC 1985, c F-7 before the
Court. The Applicants seek judicial review of two decisions of a visa officer
[Officer], dated May 12, 2014, which refused to grant citizenship to Gurmeet
Kaur Sahota and Jagmohan Singh Sahota, the adopted children of Joginder Singh
Sahota [Parent Applicant], under s. 5.1(1) of the Citizenship Act, RSC
1985, c C-29. Due to the similarities in the factual background, the decisions
and the legal arguments, one set of reasons will be provided and filed in both
T-1389-14 and T-1390-14.
II.
BACKGROUND
[2]
Gurmeet was born in India on July 26, 1991.
Gurmeet’s biological father is her adoptive mother’s brother. The Parent
Applicant says that he and his wife adopted Gurmeet through an informal, verbal
agreement with her biological parents when she was one year old.
[3]
Jagmohan was born in India on February 16, 1993.
Jagmohan’s biological father is the Parent Applicant’s brother. The Parent
Applicant says that he and his wife adopted Jagmohan through an informal,
verbal agreement with his birth parents when he was two years old.
[4]
The Parent Applicant, his wife and biological
daughter moved to Canada as permanent residents on January 19, 2002.
[5]
The Parent Applicant and his wife formally
adopted Gurmeet and Jagmohan in India with deeds of adoption dated January 7,
2008. A corrected deed of adoption was registered for Gurmeet on January 11,
2008.
[6]
The Applicants applied for Canadian citizenship
for Gurmeet and Jagmohan in late 2010.
III.
DECISIONS UNDER REVIEW
[7]
The applications for citizenship were denied on
May 12, 2014.
A.
Gurmeet
[8]
The Officer stated that under s. 5.1 of the Citizenship
Act, an adoption must create a genuine relationship of parent and child and
be in accordance with the laws where the adoption took place. The Officer found
that the Hindu Adoptions and Maintenance Act, 1956 [HAMA] governed
adoptions in India. It applied to the adoption of Gurmeet by virtue of s.
2(1)(b) which brings Sikhs under HAMA’s application. Section 5(2) provides
that an adoption is void if made in contravention of any of HAMA’s provisions.
[9]
The Officer said that s. 10(iv) of HAMA provides
that no person over the age of fifteen years old can be adopted unless a custom
or usage applies as an exception. The Officer found that Gurmeet’s adoption did
not comply with s. 10(iv) of HAMA because she was sixteen years old at
the time of her adoption.
[10]
The Officer also said that s. 11(ii) provides
that an adoptive father or mother cannot adopt a Hindu daughter if they have a
living daughter. The Officer found that Gurmeet’s adoption was not in
accordance with s. 11(ii) of HAMA because “Hindu” is to be read as
including Sikhs and the Parent Applicant and his wife had a living daughter at
the time of the adoption.
[11]
The Officer was also not satisfied that a
“giving and taking” ceremony, as required by Indian law, had taken place. She
noted (Certified Tribunal Record [CTR] at 3):
During the interview, Gurmeet Kaur called
her biological parents as “mom” and “dad”. Even after the adoption, all her
school documents are listed the name of her biological parents. At interview,
none of you were able to remember much about the adoption ceremony and were not
able to tell the date the ceremony. This implies that it was not a significant
ceremony reflecting the creation of a new relationship between you and Gurmeet
Kaur and cutting of relationships with biological parents. [sic]
As a result, the Officer found that the
adoption did not comply with s. 12 of HAMA which provides that an
adopted child is deemed to be the child of his or her adoptive parents and that
all ties to the biological parents are severed.
[12]
As a result of her findings under ss. 10(iv),
11(ii) and 12, the Officer concluded that the adoption was void under s. 5(2)
of HAMA. The Officer concluded that the adoption did not meet the requirements
of ss. 5.1(1)(b) and (c) of the Citizenship Act.
B.
Jagmohan
[13]
In considering Jagmohan’s application, the
Officer outlined the same considerations under s. 5.1 of the Citizenship Act
and ss. 2 and 5 of HAMA. The Officer was also not satisfied that a “giving and
taking” ceremony had taken place that created a new relationship between
Jagmohan and his adoptive parents while severing the relationship with his
biological parents. The Officer noted (CTR at 2-3):
During the interview, Jagmohan Singh called
you as “uncle” & “aunty” and to his biological parents as “mom” &
“dad”. Even after the adoption, all her [sic] school documents are
listed the name of his biological parents, even the 2012 school documents state
the name of biological parents. At interview, neither Jagmohan Singh, nor you,
nor biological parents can remember much about the adoption ceremony and none
of you were able to tell the date of adoption ceremony. In extended family
settings in India it is very common for a more well off brother to pay for his
nieces and nephews [sic] education and living costs. This does not
create a parental relationship in and of itself. In addition, Jagmohan Singh’s
biological parents stated at interview that they still held a strong ties to
him, despite the verbal agreement to give him in adoption. This implies that it
was not a significant ceremony reflecting the creation of a new relationship
between you and Jagmohan Singh and cutting of relationship with biological
parents.
As a result, the Officer was not satisfied
that the adoption complied with s. 12 of HAMA. The Officer concluded that the
adoption did not meet the requirements of ss. 5.1(1)(b) and (c) of the Citizenship
Act.
IV.
ISSUES
[14]
The Applicants raise the following issues in these
applications:
1. Did the Officer err by failing to apply the presumption of validity
and accuracy of foreign documents?
2. Did the Officer err in law by requiring that the Applicants
establish that the parent-child relationship between the adopted child and his
or her biological parents was severed in fact?
3. Is an adoption in accordance with the laws of the place where the
adoption took place if the adoption is voidable but not void?
4. Did the Officer breach procedural fairness by failing to put her
concerns regarding the discrepancies in the dates of the adoption ceremonies to
the Applicants?
V.
STANDARD OF REVIEW
[15]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review
analysis need not be conducted in every instance. Instead, where the standard
of review applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that standard
of review. Only where this search proves fruitless, or where the relevant
precedents appear to be inconsistent with new developments in the common law
principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
A.
Respondent
[16]
The Respondent submits that decisions made under
s. 5.1 of the Citizenship Act are reviewed on a standard of reasonableness:
Satnarine v Canada (Citizenship and Immigration), 2012 FC 91 at para 9; Asad
v Canada (Citizenship and Immigration), 2014 FC 921 at para 8. An officer’s
determinations regarding the content of foreign law are findings of fact
reviewable on a standard of reasonableness: Cheshenchuk v Canada
(Citizenship and Immigration), 2014 FC 33 at paras 17-18 [Cheshenchuk].
B.
Applicants’ Post-Hearing Submissions
[17]
In post-hearing submissions, the Applicants
submit that the Officer’s determination of foreign law is reviewable on a
standard of correctness. They argue this despite their acknowledgement that the
content of foreign law is a finding of fact that must be established by
evidence. However, the Applicants say that the Federal Court’s legal
interpretive skills mean that the Court has expertise above that of visa
officers in interpreting foreign law. They further submit that questions of
foreign law are not questions of law that arise under a visa officer’s home
statute and that these questions are of general importance to the legal
system.
[18]
The Applicants further submit that the
Respondent’s reliance on Cheshenchuk, above, does not settle the
question of the applicable standard of review because Cheshenchuk relies
on cases which did not perform a full standard of review analysis. In contrast,
the Applicants submit that the Federal Court determined the standard of review
to be correctness in Kim v Canada (Citizenship and Immigration), 2010 FC
720. The Applicants acknowledge that Kim is somewhat confusing because
its finding that correctness applies is based upon a case which incorporated
appellate standards of review into a judicial review proceeding (para 5, citing
Williams v Canada (Minister of Citizenship and Immigration) v Williams,
2005 FCA 126 at paras 19-23).
[19]
The Applicants acknowledge that the Court
conducted a full standard of review analysis in Canada (Minister of
Citizenship and Immigration) v Choubak, 2006 FC 521 [Choubak] and
concluded that the applicable standard of review was reasonableness. However,
the Applicants submit that this cannot remain good law because it was decided
before the Ontario Court of Appeal decision in General Motors Acceptance
Corp of Canada, Ltd v Town and Country Chrysler Ltd (2007), 88 OR (3d) 666
[General Motors]. In General Motors, the Ontario Court of Appeal
held that a trial judge’s decision on foreign law was reviewable, on appeal, on
a standard of correctness.
[20]
Finally, the Applicants submit that if the Court
finds that Choubak was properly decided, then the decision is entitled
to a lesser level of deference: Dunmsuir, above, at paras 139-141; Vasquez
v Canada (Citizenship and Immigration), 2014 FC 782 at paras 21-27 [Vasquez].
C.
Respondent’s Post-Hearing Submissions
[21]
The Respondent further submits that none of the
issues in this proceeding turn on the Officer’s determination of the content of
Indian law. However, if the Court determines that the content of foreign law
underlies any issue before the Court, then the jurisprudence is well
established that the issue is reviewable on a standard of reasonableness.
[22]
The Federal Court has repeatedly relied upon the
Federal Court of Appeal decision in Canada (Minister of Citizenship and Immigration)
v Saini, 2001 FCA 311 at para 26 [Saini] to review officers’
determinations of foreign law on a standard of reasonableness. While that
decision concerned appellate standards of review, the Federal Court has relied
on the case for its holding that the content of foreign law is a question of
fact: see Canada (Minister of Citizenship and Immigration) v Sharma,
2004 FC 1069 [Sharma]; Sicuro v Canada (Minister of Citizenship and
Immigration), 2004 FC 461; Magtibay v Canada (Minister of Citizenship
and Immigration), 2005 FC 397. Questions of fact are reviewable on a
standard of reasonableness.
[23]
The Respondent points out that the Federal Court
has also held that findings of foreign law are reviewable on a standard of
reasonableness even when not relying on Saini, above: see Nur v
Canada (Minister of Citizenship and Immigration), 2005 FC 636; Aung v
Canada (Minister of Citizenship and Immigration), 2006 FC 82; Buttar v
Canada (Minister of Citizenship and Immigration), 2006 FC 1281 [Buttar].
In addition, the Federal Court has repeatedly held that immigration and
citizenship decision-makers are entitled to deference in determining whether a
foreign adoption complies with the laws of the place where it took place: Sharma,
above; Dhindsa v Canada (Minister of Citizenship and Immigration), 2006
FC 1362 [Dhindsa]; Kisimba v Canada (Citizenship and Immigration),
2008 FC 252.
[24]
The Respondent acknowledges that the Applicants
have been able to point to one case where the Court has applied a correctness
review. The Respondent also points to Dufour v Canada (Citizenship and
Immigration), 2013 FC 340 where the Court also conducted correctness
review. The Respondent submits, however, that the Court should not rely on
either case because they both cite cases which have either no application to
the issue or, in fact, applied reasonableness review.
[25]
The Respondent says that the Ontario Court of
Appeal decision in General Motors has no application to immigration and
citizenship decisions. First, there is a long line of jurisprudence that
establishes that determinations of foreign law are reviewable on a standard of reasonableness.
Second, the Federal Court has continued to apply reasonableness in the seven
years since the General Motors decision. Third, General Motors
discusses appellate standards of review, not standards of judicial review.
Notwithstanding this, the Federal Court considered General Motors in Vasquez,
above. The Court held that General Motors did not change the standard
for judicial review in light of the long line of jurisprudence which has
applied reasonableness.
D.
Analysis
[26]
I agree with the Respondent that the
jurisprudence is clear that an officer’s determination of foreign law is
reviewable on a standard of reasonableness: Cheshenchuk, above, at para
18; Bhagria v Canada (Citizenship and Immigration), 2012 FC 1015 at para
39. Courts have been advised that established standards of review can be
re-evaluated “if the relevant precedents appear to be
inconsistent with recent developments in the common law principles of judicial
review” (Agraira, above, at para 48). I see no reason to
re-evaluate this jurisprudence. Parliament has given citizenship officers the
authority and duty to determine whether foreign adoptions comply with the law
of the jurisdiction where they occurred: Citizenship Act, s. 5.1(1)(c).
This is a finding of fact that the Applicants have the burden of proving, and
it arises under the Officer’s home statute.
[27]
I reiterate what I said in Vasquez,
above, about the limitations of the Court’s ability to make a “correct”
determination of the content of foreign law (at para 24):
…A standard of correctness implies that I am
to make a definitive finding on the proper interpretation of foreign law, but
the Court faces the same constraints as the tribunal in that its ability to
interpret the foreign law at issue (here the criminal law of the State of
Florida) is affected by the quality of the evidence before it. Under these
circumstances, it would be disingenuous for the Court to imply that it was
offering a “correct” interpretation. The Court must look at the evidence and
determine whether the Board reasonably interpreted the foreign law and
reasonably applied it to the facts of the case.
[28]
In my view, the same applies to the present
proceeding. The Court cannot offer a “correct” interpretation as to the content
of Indian adoption laws. The Court is limited to determining whether the
Officer’s interpretation of Indian adoption laws are supported by the record,
i.e. justified, transparent and intelligible.
[29]
The procedural fairness issue remains reviewable
on a standard of correctness: Mission Institution v Khela, 2014 SCC 24
at para 79; Exeter v Canada (Attorney General), 2014 FCA 251 at para 31.
[30]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: see Dunsmuir, above, at para 47; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another
way, the Court should intervene only if the Decision was unreasonable in the
sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
VI.
LEGISLATIVE PROVISIONS
[31]
The following provisions of the Citizenship Act
are applicable in these proceedings:
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Adoptees —
minors
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Cas de
personnes adoptées — mineurs
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5.1 (1)
Subject to subsections (3) and (4), 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
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5.1 (1) Sous
réserve des paragraphes (3) et (4), 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 :
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[…]
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[…]
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(b) created a
genuine relationship of parent and child;
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b) elle a
créé un véritable lien affectif parent-enfant entre l’adoptant et l’adopté;
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(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
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c) elle a été
faite conformément au droit du lieu de l’adoption et du pays de résidence de
l’adoptant;
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[…]
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[…]
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[32]
The following provisions of HAMA are applicable
in these proceedings:
2. Application of Act – (1) This Act
applies-
[…]
(b) to any person who is a Buddhist, Jaina
or Sikh by religion, and
[…]
(3) The expression “Hindu” in any portion of
this Act shall be construed as if it included a person who, though not a Hindu
by religion, is nevertheless, a person to whom this Act applies by virtue of
the provisions contained in this section.
5. Adoptions to be regulated by this
Chapter- (1) No adoption shall be made after the commencement of this Act by or
to a Hindu except in accordance with the provisions contained in this Chapter,
and any adoption made in contravention of the said provisions shall be void.
[…]
10. Persons who may be adopted- No person
shall be capable of being taken in adoption unless the following conditions are
fulfilled, namely-
[…]
(iv) he or she has not completed the age of
fifteen years, unless there is a custom or usage applicable to the parties which
permits persons who have completed the age of fifteen years being taken in
adoption.
[…]
11. Other conditions for a valid adoption-
In every adoption, the following conditions must be complied with:
[…]
(ii) if the adoption is of a daughter the
adoptive father or mother by whom the adoption is made must not have a Hindu
daughter or son’s daughter (whether by legitimate blood relationship or by
adoption) living at the time of adoption;
[…]
(vi) the child to be adopted must be
actually given and taken in adoption by the parents or guardian concerned or
under their authority with intent to transfer the child from the family of its
birth or in the case of an abandoned child or a child whose parentage is not
known, from the place or family where it has been brought up to the family of
its adoption;
[…]
12. Effect of adoptions- An adopted child
shall be deemed to be the child or his or her adoptive father or mother for all
purposes with effect from the date of the adoption and from such date all the
ties of the child in the family of his or her birth shall be deemed to be
severed and replaced by those created by the adoption in the adoptive family.
[…]
16. Presumption as to registered documents
relating to adoption- Whenever any document registered under any law for the
time being in force is produced before any court purporting to record an
adoption made and is signed by the person giving and the person taking the
child in adoption, the court shall presume that the adoption has been made in
compliance with the provisions of this Act and until it is disproved.
VII.
ARGUMENT
A.
Applicants
(1)
Gurmeet
[33]
The Applicants submit that a presumption of
validity attaches to foreign documents and the accuracy of their contents: Rasheed
v Canada (Minister of Citizenship and Immigration), 2004 FC 587 at paras
19-20 [Rasheed]; Bouyaya v Canada (Minister of Citizenship and
Immigration), 2005 FC 1042 at para 11. This presumption obliged the Officer
to accept the adoption deeds as proof of the adoptions unless there was good
reason to doubt their validity. The presumption also leads to a further
rebuttable presumption that the “giving and taking” ceremony occurred. The
Officer improperly shifted the burden on the Applicants to establish the
“giving and taking.” The Officer also failed to provide reasons regarding why
she was not satisfied that a “giving and taking” ceremony occurred.
[34]
The Applicants also complain about the Officer’s
assumption that there was only one adoption ceremony for Gurmeet and Jagmohan.
They acknowledge that the evidence was contradictory but submit that the
evidence indicates that there were two adoption ceremonies. The Applicants
acknowledge that the Gurdwara letter states that the adoption ceremonies took
place two months later than the dates the parents provided in the interview. However,
the presumption of the validity of foreign documents cannot apply to the letter
because it is not “issued by a competent foreign public
officer.” The Applicants also say it is unfair that the Officer did not
put the letter to the Applicants and provide them with an opportunity to
explain the inconsistency.
[35]
The Officer also erred in finding that Gurmeet
could not be adopted because she was sixteen years old at the time of the
adoption. HAMA provides for an exception if a custom or usage permits a
child over the age of fifteen years to be adopted. The presumption of the validity
of foreign documents leads to a presumption that a custom or usage applies to
this adoption. The Officer erred in failing to consider whether there was an
applicable usage or custom.
[36]
The Officer also erred in finding that the
adoption was not in accordance with s. 12 of HAMA. The section merely deems
certain facts to exist in law when a child is adopted. It is irrelevant whether
the Officer was satisfied that Gurmeet’s ties with her biological parents were
not severed and that a parent-child relationship had not been established with her
adoptive parents. The Officer’s misinterpretation vitiates her conclusion that
because the adoption did not meet the requirements of the HAMA, it did not
create a parent-child relationship under s. 5.1 of the Citizenship Act.
The Court cannot assume that because the Officer made an erroneous factual
finding under HAMA, the Officer would have made the same factual finding under
the Citizenship Act. The legal tests are different: see Citizenship
Regulations, SOR/93-246, s. 5.1(3). Under the Citizenship Act, an
adopted child is not required to cut ties with his or her biological parents: Martinez
Garcia Rubio v Canada (Citizenship and Immigration), 2011 FC 272 at para 7;
Adejumo v Canada (Citizenship and Immigration), 2011 FC 1485 at para 12-14
[Adejumo]. This is particularly true when the adopted child is related
to the adoptive family. Further, the Officer failed to explain why she did not
rely on the Government of Canada, Operational Bulletin 183- February 8, 2010:
Supplementary policy guidance on assessing the severing of a pre-existing legal
parent-child relationship for grants of citizenship under A5.1(1) or A5.1(2)
which provides that when an adopted child is related to the adoptive parents “an ongoing relationship and contact with the natural parent
and extended family may still occur”: see Adejumo, above, at para
14.
[37]
Finally, the Applicants submit that the Officer
has no ability to declare the adoption void under HAMA. The existence of facts
putting into question the validity of the adoption makes the adoption voidable,
not void: Sinniah v Canada (Minister of Citizenship and Immigration),
2002 FCT 822 at paras 8-12 [Sinniah]; Singh v Canada (Minister of
Employment and Immigration), [1990] 3 FC 37 (CA) [Singh 1990]. The
Officer’s concerns regarding whether Gurmeet could be adopted when the adoptive
parents already had a daughter does not void the adoption.
(2)
Jagmohan
[38]
In relation to Jagmohan, the Applicants adopt the
same arguments as for Gurmeet regarding: the presumption of the validity of
foreign documents; the Officer’s findings regarding the “giving and taking”
ceremony; the Officer’s interpretation of s. 12 of HAMA; and, the difference
between a void and voidable adoption.
B.
Respondent
(1)
Gurmeet
[39]
The presumption of validity attaches only to
identity documents issued by foreign governments. An adoption deed is not an
identity document, nor is it issued by a government; there is no presumption as
to its validity: Singh v Canada (Citizenship and Immigration), 2012 FC
1302 at para 12 [Singh 2012]. Any presumption of validity under HAMA is
applicable only in an Indian court: Shergill v Canada (Minister of
Citizenship and Immigration) (1998), 149 FTR 157 at para 9 [Shergill].
[40]
The Applicants had the onus of establishing that
they met the requirements of s. 5.1 of the Citizenship Act. This
required them to establish that a “giving and taking” ceremony had taken place
so that the child was adopted in accordance with the laws of India: Citizenship
Act, s. 5.1; Dhindsa, above, at para 22. The Officer’s assumption
that the adoption ceremonies took place on the same day is reasonable given
that the photos of the ceremonies identify both children as “adopted daughter” and “adopted
son.” Though they are inconsistent, both adoption deeds and both Gurdwara
letters bear the same dates as well. The Officer had no obligation to put the
inconsistencies regarding when the adoption ceremonies took place to the
Applicants. The discrepancies came from the various documents that the
Applicants submitted as proof of the adoption ceremony and the Applicants’
statements at the interviews. Fairness does not require an officer to put
discrepancies in an Applicant’s evidence to them: Chen v Canada (Citizenship
and Immigration), 2014 FC 240 at para 12; Singh v Canada (Citizenship
and Immigration), 2009 FC 620 at para 7. The Officer reasonably concluded
that the adoptions were not legally valid under Indian adoption laws because no
“giving and taking” had taken place. As a result, the adoption did not meet the
requirements of s. 5.1(1)(c) of the Citizenship Act.
[41]
The Applicants had the onus of establishing any
applicable custom or usage that created an exception to the requirements of HAMA:
Canada (Minister of Employment and Immigration) v Taggar, [1989] 3 FC 576
at 583 (CA) [Taggar]; Buttar, above, at para 19. There is no
evidence that any custom or usage applied to Gurmeet’s adoption.
[42]
The Officer also reasonably concluded that
Gurmeet’s adoption was not in accordance with the bar on a family adopting a
Hindu daughter if they have a living daughter. HAMA states that “Hindu” is to
be construed to include any person to whom HAMA applies, which includes Sikhs.
[43]
The Officer reasonably found that she was not
satisfied a genuine parent-child relationship had been created. The Respondent
concedes that the Officer misinterpreted s. 12 of HAMA. However, this error was
immaterial to the Decision: Panossian v Canada (Citizenship and Immigration),
2008 FC 255; Tahiyeva v Canada (Minister of Citizenship and Immigration),
2005 FC 651. The Officer’s conclusion regarding the genuineness of the
parent-child relationship was also based on her conclusions under ss. 10(iv)
and 11(ii) and her factual findings regarding the relationship between Gurmeet
and her biological parents and her adoptive parents.
(2)
Jagmohan
[44]
Regarding Jagmohan, the Respondent adopts the
same arguments as for Gurmeet regarding the presumption of the validity of
foreign documents; the Officer’s interpretation of s. 12 of HAMA; the Officer’s
findings regarding “giving and taking” ceremony; and the difference between a
voidable and void adoption. The Officer’s factual findings are sufficient for a
finding that a genuine parent-child relationship was not created.
VIII.
ANALYSIS
A.
Presumption of Validity of the Adoption Deeds
[45]
The Applicants say there is “a presumption in favour of the validity of foreign documents
and accuracy of their contents” so that the “onus
did not lie on the applicants to demonstrate the validity of the adoption. The Officer
had to accept the adoption as valid and accurate unless there was good reason
to doubt its validity and accuracy.”
[46]
The cases relied upon by the Applicants for this
broad proposition all involved documents that were “issued
by a competent foreign public officer” that amounted to “an act of state” such as a passport, a birth
certificate, or a foreign court order of adoption.
[47]
The adoption deeds at issue in the present case
are not such documents. There is no evidence before the Court, nor was there
before the Officer, as to their origin. They appear to be contracts that were
registered with a sub-registrar of Bhopal, Madhya Pradesh. There is nothing to
suggest that the act of registration created a state endorsement of the
contents of the documents or turned them into government-issued documents that attract
a legal presumption of validity. The registration explicitly says “NON JUDICIAL” which suggests that this was an
administrative act and not the result of a legal or judicial determination.
[48]
A similar deed appears to have been before the
Court in Singh 2012, above, where, at paragraph 17, the Court described
the origins and nature of the “Deed of Adoption”
and found that it could not be said to be a validly issued foreign legal
judgment because the court registration process did not involve “any independent decision-making” and was “merely an administrative process for which the court charges
a nominal fee.”
[49]
In any event, even if the adoption deeds were
sufficient evidence of the proof of their contents, the jurisprudence provides
that the presumption is rebutted if an officer has reason to doubt the validity
of the foreign document: Rasheed, above, at para 19; Berhane v Canada
(Citizenship and Immigration), 2011 FC 510 at para 32; Ru v Canada
(Citizenship and Immigration), 2011 FC 935 at para 42. The Decisions
provide several reasons as to why the validity and accuracy of the adoption
deeds in this case could not be relied upon to create a valid adoption. For
example, the Officer said that the bona fides of the deeds was called
into question because they provided that the adoption took place from that day
forward, but the Gurdwara letter indicated that the adoption ceremonies had not
taken place until two months later.
[50]
The Applicants also point to s. 16 of HAMA which
contains a presumption that the Applicants say is applicable in this case:
16. Presumption as to registered
documents relating to adoption- Whenever any
document registered under any law for the time being in force is produced
before any court purporting to record an adoption made and is signed by the
person giving and the person taking the child in adoption, the court shall
presume that the adoption has been made in compliance with the provisions of
this Act unless and until it is disproved.
[51]
Based upon these provisions, the Applicants
argue as follows (Applicant's Record T-1390-14 at 123-126):
61. The court for the purposes of The Hindu
Adoptions and Maintenance Act is an Indian court. Canadian courts have no
jurisdiction to determine the merits of Indian adoptions.
62. The adoption deed in this case was
registered. It purporting to record an adoption made [sic]. It is signed by the
person giving and the person taking the child in adoption.
63. The effect of this presumption is to
give this adoption a presumptive validity in India unless and until it is
disproved in an Indian court, which to date it has not been. The applicant
submits that this presumptive validity is sufficient to meet the requirements
the adoption was in accordance with the laws of the place where the adoption
took place.
[…]
70. In this case also, in light of the fact
that there is a registered adoption deed and The Hindu Adoptions and
Maintenance Act gives a presumptive validity to the adoption in light of that
deed, the adoption is "in accordance with the laws of" India. The
existence of facts putting into question the validity of the adoption makes the
adoption voidable but not void.
71. The inability to provide evidence to
satisfy the visa officer that the underlying facts necessary to establish an
adoption, in this case the giving and taking, can not [sic] possibly invalidate
the adoption. To suggest otherwise would be to assign to the visa office a
legal role which is reserved only to Indian courts.
72. This presumptive validity of the
adoption as in accordance with the laws of India because of the registration of
the deed is true both for the existence of a daughter living at the time of the
adoption and the giving and taking. Unless and until the adoption is voided,
that is to say declared invalid in an Indian court, the adoption is "in
accordance with the laws of" India.
[52]
The Applicants rely heavily upon Sinniah,
above, but it has to be remembered that, in that case, there was an Indian
court order of adoption. It may have been “patently
unreasonable” in Sinniah to find no valid adoption in accordance
with the laws of Sri Lanka when there was a valid court order in place. In the
present case, there is no such order, which is why the Applicants fall back on
the presumption contained in s. 16 of HAMA. That presumption is not binding
upon the Officer and it is not binding on this Court: Singh 1990, above;
Shergill, above. The Applicants argue, however, that until a registered
adoption is declared void in India, it remains a valid adoption for the
purposes of s. 5.1(1)(c) of Canada’s Citizenship Act.
[53]
It seems to me, however, that s. 5.1(1)(c) of
the Citizenship Act required the Officer to consider whether, in this
case, the adoptions were in accordance with the applicable Indian law. The
logic of the Applicants’ argument would require Canada to accept every phony
adoption that has not been challenged in India on the sole basis that an
adoption deed has been registered with the Court but has not been subjected to
government or judicial scrutiny. In my view, this cannot be the intent of the Citizenship
Act which requires officers to determine whether an adoption has taken
place in accordance with, in this case, Indian law. In contrast to Sinniah,
it cannot be unreasonable for the Officer in this case to question and explore
the legal validity of an adoption deed that has simply been registered with a
sub-registrar.
[54]
The Applicants argue that the Officer is bound
by the presumption because she has no authority to declare an Indian adoption
void. I agree. The Officer cannot declare an Indian adoption void. Her task is
merely to determine whether the adoption is valid for the purposes of Canadian
law. Her determination that an adoption is invalid for the purposes of the Citizenship
Act has no effect on the adoption’s status in India.
[55]
It seems to me, then, that the Officer did not
have to acknowledge and apply any presumption of validity for the adoption deeds
and their contents at issue in these applications and that she was required to
examine the validity of the adoptions in their full context. The onus remained
with the Applicants to demonstrate the validity of the adoptions.
B.
Giving and Taking
[56]
The Applicants argue that a “rejection based on a finding that the officer is not
satisfied that a giving and taking was performed ignores the presumption of
validity and accuracy of the adoption deed.”
[57]
As set out above, the adoption deeds were not
presumptive proof of the truth of their contents. The Officer’s determination
that Indian law requires a giving and taking ceremony to constitute a valid
adoption is reviewable on a standard of reasonableness. There is no evidence in
the record to rebut the Officer’s determination that Indian law requires a
giving and taking ceremony. Section 11(iv) of HAMA provides that “the child to be adopted must be actually given and taken in
adoption by the parents or guardian concerned or under their authority with
intent to transfer the child from the family of its birth.” The Officer
also cited the following case law, Laksmahn Singh v Rup Kanwar, AIR 1961
SC 1378, which also provides that the requirement is essential (CTR at 3):
…there cannot be a valid adoption unless the
adoptive boy 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 boy and the adoptive parent shall receive him. 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 a part of it.
[58]
In the absence of any other evidence, the
Officer’s determination that the Applicants were required to establish a valid
giving and taking ceremony had taken place is reasonable. The onus remained
with the Applicants to establish that a valid giving and taking had taken place
in accordance with Indian law. The Applicants seem to have been of the same
opinion because they submitted photographs of the giving and taking ceremony
for the Officer’s consideration.
[59]
The Officer was not satisfied that a valid
giving and taking ceremony had occurred. The Applicants ask the Court to
re-examine the evidence regarding the giving and taking ceremony and to find
the Officer’s conclusions unreasonable. In my view, the Applicants are simply
asking the Court to review the evidence relevant to this ceremony and to reach
a conclusion that favours them. The Court cannot substitute its own assessment
in this way. See Khosa, above, at paras 59, 61; League for Human Rights
of B’Nai Brith Canada v Odynsky, 2010 FCA 307 at paras 85, 91. The
Officer’s findings and reasoning set out in the GCMS notes are intelligible and
transparent and her conclusions do not fall outside the range of possible,
acceptable outcomes which are defensible in respect of the facts and the law.
For example, in relation to Jagmohan, the Officer noted that nobody could date
the ceremony in their interviews. In addition, the date in the Gurdwara letter
was inconsistent with the adoption deed.
[60]
The Applicants say that the “officer assumes that there was one ceremony for both
adoptions on the same day. However, this need not have been the case.” The Applicants appear to be saying that the Officer “may”
have made a mistake and there may have been two ceremonies, which took place at
different times. It would appear from the evidence that the family members
interviewed did not say there were different ceremonies at different times, but
the Applicants now invite the Court to speculate that there may have been, so
that the Officer may have made a mistake over this issue. However, the evidence
before the Officer fully supports her conclusions that the ceremonies took
place on the same day. The photographs show both adoptions together and the
ceremony and the adoption deeds bear the same dates (January 7, 2008) and
indicate that they take effect “from today’s date.”
Also, the Gurdwara letter indicates that both adoptions were performed at the
same Gurdwara on the same date (March 27, 2008). I do not think there is any
room here for an allegation that the Officer’s assumptions about the ceremony
were unreasonable.
C.
Procedural Fairness
[61]
The Applicants argue that “the Gurdwara letter was not put to either the natural mother
or adoptive parents” and it is “unfair to all concerned that they were given no
opportunity to explain this discrepancy.”
[62]
This is a strange assertion because the
documentation in question was provided by the Applicants so that they had every
opportunity to explain any discrepancy in dates that it might contain. In any
event, the Officer interviewed the parties involved and asked them about the
date of the ceremony. They had every opportunity to identify the accurate date
in their oral evidence, but they failed to do so consistently.
[63]
The Applicants may now realize that they made
mistakes when they provided their evidence, but this does not mean that they
were treated unfairly or that the Officer reached unreasonable conclusions
based upon the evidence that they provided.
D.
HAMA, s. 10(iv) – The Exception
[64]
The Applicants say that the Officer committed a
reviewable error by failing to consider whether an applicable exception for
custom or usage applied to exempt Gurmeet from the application of s. 10(iv) of HAMA.
Gurmeet was sixteen years old at the time of her adoption and s. 10(iv) of HAMA
provides that she could not be adopted “unless
there is a custom or usage applicable to the parties which permits persons who
have completed the age of 15 years being taken into adoption.”
[65]
The Applicants did not suggest in their
submissions to the Officer that there was any such custom or usage that would
permit Gurmeet’s adoption, and they have not suggested before me that there is
such a custom or usage that the Officer could have explored.
[66]
Their argument appears to be that the “presumption of validity and accuracy of foreign documents
is, in context, a presumption that there is custom or usage applicable to the
parties to this adoption which permits persons who have completed the age of
fifteen years being taken in adoption.”
[67]
No such presumption exists on the facts of the
case. If any such custom existed, then the onus was on the Applicants to adduce
evidence to establish it before the Officer. They failed to do so and cannot
now claim reviewable error because the Officer failed to consider something
they did not raise and, for all the Court knows, may not even exist. See Taggar,
above, at 583, and Buttar, above, at para 19.
E.
The Reasonableness of the Decisions
(1)
Gurmeet
[68]
The Applicants’ arguments regarding the Officer’s
interpretation of s. 12 of HAMA will be discussed in relation to Jagmohan.
However, the Officer made two additional findings in relation to Gurmeet that
will be addressed first. First, as discussed above, the Officer reasonably
found that Gurmeet’s adoption was not in compliance with s. 10(iv) of HAMA
because she had completed the age of fifteen at the time of the claimed
adoption. Second, the Officer found that Gurmeet’s adoption did not comply with
s. 11(ii) because the Applicants already had a living daughter at the time of
the adoption. I can find no reviewable error with this finding. These findings
are independent of the interpretation issues and are dispositive of the
Decision concerning Gurmeet’s adoption.
(2)
Jagmohan
[69]
Section 5.1(1)(b) of the Citizenship Act
requires the adoption to have “created a genuine
relationship of parent and child.” The Officer explores this issue in some
detail and concludes that the Applicants have not established such a genuine
relationship. However, in the Decision, the Officer connects this issue to s. 12
of HAMA which is a deeming provision and does not require factual severance.
The Applicants point out that the Officer misapplies s. 12 of HAMA by confusing
the legal consequences of an adoption in India with the factual requirements of
the Citizenship Act. In other words, neither s. 12 of HAMA nor s. 5.1 of
the Citizenship Act requires that the adopted child in fact cut
ties with his or her biological parents to establish a parental relationship
with the adoptive parents. They argue as follows (Applicants’ Record T-1390-14
at 92-93):
48. The fact that an adoptive child might
maintain a parent child relationship with his or her biological parents may be
evidence relevant to whether the relationship with the adoptive parents is
genuine. However, in this case, the visa office [sic] did not consider
the relationship between the adopted child and her biological parents from that
perspective.
49. Rather, the visa officer turned what
may be relevant evidence into a legal test. This adoption was refused because
the officer was not satisfied that ties were cut with the biological parents.
50. The visa officer, in other words, put
an onus on the applicants to show severance in fact, an onus in law legally
they do not have. Their onus is to show genuineness of the adoption only.
51. The visa office could legitimately
refuse an application where the applicants failed to meet the onus imposed upon
them to establish genuineness. However, the visa office can not [sic]
legitimately refuse an application where the applicant failed to establish one
amongst many potentially relevant facts.
52. The adoptive parents do not have to
establish severance in fact from the biological parents in order to show
genuineness. Rather, they have to show genuineness on all facts of the case.
Turning one potentially relevant evidentiary factor into a rigid legal test
amounts to an error of law.
[70]
The Respondent concedes that the Officer
misinterpreted s. 12 of HAMA but argues that this mistake does not invalidate
the decision (Respondent’s Record T-1390-14 at 31-32):
51. The Respondent concedes that the
officer misinterpreted HAMA s.12 as creating an adoption requirement. Rather
than creating a requirement, that section deems certain things to be true once
an adoption takes place under HAMA. To the extent then that the officer found
that HAMA requirements were not met due to a failure to meet s.12, she erred.
This error, however, was immaterial to the decision, both because the officer
had another, reasonable basis for finding no genuine parent-child relationship
and also because her findings based on HAMA subsections 10(iv) and 11(ii)
(discussed above) independently support the refusal of the application.
[Footnote omitted]
[71]
The issue for the Court in the case of Jagmohan
is whether the finding of non-compliance with ss. 5.1(b) and (c) of the Citizenship
Act that his “adoption does not comply with section
12 of the Adoptions Act” and so “is void pursuant to section 5(1) of the said
Act,” is a reviewable error that requires Jagmohan’s application be
reconsidered.
[72]
Before the Officer turns to s. 12 of HAMA, the
Officer finds that she is “not satisfied that a
physical giving and taking in connection with your claimed adoption, was
performed at the time of writing up of the adoption deed” (CTR at 3).
This appears to be based upon the Officer’s earlier findings (CTR at 2-3):
During the interview, Jagmohan Singh called
you as “uncle” & “aunty” and to his biological parents as “mom” &
“dad”. Even after the adoption, all her [sic] school documents are
listed the name of his biological parents, even the 2012 school documents state
the name of biological parents. At interview, neither Jagmohan Singh, nor you,
nor biological parents can remember much about the adoption ceremony and none
of you were able to tell the date of adoption ceremony. In extended family
settings in India it is very common for a more well off brother to pay for his
nieces and nephews education and living costs. This does not create a parental
relationship in and of itself. In addition, Jagmohan Singh’s biological parents
stated at interview that they still held a strong ties to him, despite the
verbal agreement to give him in adoption. This implies that it was not a
significant ceremony reflecting the creation of a new relationship between you
and a significant ceremony reflecting the creation of a new relationship
between you and Jagmohan Singh and cutting of relationship with biological
parents.
[73]
Section 11(vi) clearly says that the giving and
taking ceremony is a necessary condition for a valid adoption:
11. Other conditions for a valid
adoption- In every adoption, the following conditions
must be complied with:
[…]
(vi) the child to be adopted must be
actually given and taken in adoption by the parents or guardian concerned or
under their authority with intent to transfer the child from the family of its
birth or in the case of an abandoned child or a child whose parentage is not
known, from the place or family where it has been brought up to the family of
its adoption…
[74]
The Officer also cites case law in the GCMS
notes which provides that an adoption deed is insufficient proof of an adoption
in the absence of an actual giving and taking: Raghunath Behera v Balaram
Behera, AIR 1996 Ori 38.
[75]
As a result, I think the Officer’s finding that
no giving and taking ceremony had taken place is determinative of Jagmohan’s application.
[76]
There is no question that the Officer made a
mistake in the Decision. She fails to link her finding that no giving and
taking ceremony occurred to her conclusion. She simply says “Since Jagmohan Singh’s adoption does not meet the
requirements of the Adoptions Act, it is void and does not create a
relationship of parent and child. Consequently Jagmohan Singh is not your
adopted child to section 5.1(1)(b) & (c) of the Citizenship Act.”
[77]
However, when I consider the GCMS notes as part
of the reasons for the Decision, I think it is clear that the Officer knew a
giving and taking ceremony was required for a valid adoption, and that she was
not satisfied that a valid adoption had occurred.
[78]
The GCMS notes also reveal an additional finding
that the Officer was not satisfied that a genuine parent-child relationship had
been created as required by s. 5.1(1)(b). The Applicants say that because the
Officer made her finding regarding the genuineness of the relationship in
relation to her s. 12 analysis, the Court cannot guess that she would have made
the same finding under s. 5.1(1)(b). I agree that the Court cannot guess at how
the Officer would have decided an issue she did not turn her mind to. However,
the Court does not need to guess. The Officer makes a very clear finding in the
GCMS notes that she is not satisfied that a genuine relationship has been
created and provides her reasons (CTR at 10):
Although the adoptions of both Gurmeet and
Jagmohan are stated to have happened verbally when each child was very young,
in 2002, when the adoptive parents went to Canada they did not choose to
legalize the adoptions. I am not satisfied that a genuine parent child
relationship was created before the adoptive parents left for Canada and I am
not satisfied that one was created after the adoption. Both children called
their biological parents ‘mom’ and ‘dad’ at interview and all school docs are
in the names of their biological parents, even after the adoption.
Additionally, the BCs of the children are i n [sic] the names of
biological parents.
[79]
This finding and its reasons seem intelligible,
justified and transparent to me. As s. 5.1(1) is a conjunctive test (Jardine
v Canada (Citizenship and Immigration), 2011 FC 565 at para 15), this
finding is also dispositive of the application.
[80]
The problem is that despite these two clear
dispositive findings, the Officer continued on for some reason and garbled her
analysis with an incorrect interpretation of HAMA. To my reading, her analysis of
HAMA is irrelevant as she had already decided that there was no genuine
parent-child relationship and that a giving and taking ceremony had not
occurred. As a result, the Applicants had failed to establish that the
adoptions satisfied both s. 5.1(1)(b) and (c). I think on reasonableness
review, the Decision can withstand scrutiny given the clear findings in the
GCMS notes. In my view, the misinterpretation under s. 12 of HAMA is immaterial
to the Decision because of the Officer’s other factual findings under s. 5.1(1)
of the Citizenship Act.
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