Date: 20040917
Docket: IMM-8046-03
Citation: 2004 FC 1260
OTTAWA, ONTARIO, THIS 17TH DAY OF SEPTEMBER, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
JASVINDER SINGH MUNDI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] In March 2000, the Applicant, a Canadian citizen and father of two young sons, adopted Gurdeep Kaur Mundi, a young girl from India who was thirteen years old at the time of adoption. Gurdeep is also the Applicant's cousin. Gurdeep applied for permanent residence in Canada.
[2] By decision dated May 31, 2002, a visa officer refused Gurdeep's application for landing on the basis that she was not a _member of the family class_ as set out in section 2(1) of the Immigration Regulations, 1978 (the _Regulations_). The visa officer found that:
· the adoption was not valid under Hindu Adoptions and Maintenance Act, 1956 (the _Adoption Act_) in that there was no intent to transfer Gurdeep from the family of her birth to her adoptive parents; and
· the application was made for the sole purpose of facilitating Gurdeep's admission to Canada.
[1] The Applicant appealed this decision to the Immigration and Refugee Board, Immigration Appeal Division (_IAD_). After a hearing of the appeal, in its decision dated September 29, 2003, the IAD dismissed the appeal for lack of jurisdiction. In other words, the IAD determined that Gurdeep was not a _member of the family class_, stating as follows:
The panel finds on a balance of probabilities that the adoption is not valid under [the Adoption Act] because there was no intention to transfer Gurdeep from her family of birth to her adoptive family. The concerns identified by the visa officer are credibility problems that go to the genuineness of the adoption. The evidence establishes that Gurdeep was adopted for the purpose [of] gaining her admission to Canada.
[2] The Applicant seeks judicial review of the decision of the IAD.
Issues
[3] This application raises the following issues:
1. Did the IAD make a perverse or capricious finding without regard to the totality of the evidence?
2. Did the IAD breach the principles of natural justice?
Analysis
Issue #1: Did the IAD make a perverse or capricious finding without regard to the totality of the evidence?
[4] To successfully sponsor his adoptive daughter for landing, the Applicant had to prove that her adoption met the requirements of section 2(1) of the Regulations and that, therefore, she is a member of the family class. Section 2(1) requires that an adoption be legal, but also that it create a _genuine relationship of parent and child_ and not be arranged for the purpose of facilitating the adoptive child or their relatives' admission to Canada.
[5] The Applicant argues that the IAD ignored the wealth of documentary evidence of a parent-child relationship that was before it. This evidence consisted of such things as letters, telephone bills, financial evidence and plane tickets.
[6] The Applicant rightly states that this evidence was dealt with by the IAD in a cursory manner. However, this is not sufficient, in and of itself, to overturn the decision of the IAD. The question that this Court must ask is whether the IAD overlooked relevant or material pieces of evidence in arriving at a finding of fact and then based its decision on this erroneous finding of fact (Owusu-Ansah v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 442 (F.C.A.) (QL). In my view, the IAD did not.
[7] It is apparent from reading the full hearing transcript, and the decision itself, that what troubled the IAD the most was the lack of a plausible explanation for the adoption. More specifically, the IAD had difficulty with two aspects of the Applicant's explanation: (a) why he would adopt his 13 year old cousin, and (b) why his uncle and aunt would give up one of their three children for this adoption. The absence of such explanations led to the conclusion that the adoption, however genuine it appeared on paper, was at heart not genuine, and, in fact, occurred for the purpose of gaining Gurdeep's admission to Canada. Both during the interview with the visa officer, and in testimony before the IAD, neither the Applicant, nor his wife, were able to provide a plausible explanation for the adoption.
[8] Throughout the hearing, before the IAD and the visa officer, the explanation that was provided for the adoption remained the same. The Applicant and his wife stated that they liked Gurdeep. They wanted a daughter but had two sons. Gurdeep's natural parents had two daughters, so they did not mind giving one of them to the Applicant and his wife. It did not matter that Gurdeep was in a loving home, or that it is not customary in India to adopt a child that is not a newborn.
[9] The IAD, a tribunal with considerable expertise in making findings of fact, had the benefit of hearing oral testimony. It was entitled to find the explanation of the Applicant and his wife for the adoption implausible. The IAD's obvious and understandable discomfort with the Applicant's explanation for the adoption, could not be overcome by the documentary evidence.
[10] Once the existence of a parent-child relationship was cast in doubt by the Applicant's, and his wife's, testimony at the hearing, the documentary evidence was found to have been fabricated for the purpose of demonstrating that the adoption is genuine. It was not material or relevant given the IAD's overarching concern, and therefore, did not need to be dealt with at length in the decision (Owusu-Ansah,supra).
[11] While the IAD is not required to make reference to every piece of evidence that was before it (Piel v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 859 (F.C.T.D.) (QL)), the failure of a board or tribunal to consider directly contradictory evidence in the record constitutes a reviewable error (Zheng v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 140 (F.C.T.D.) (QL)); Owusu-Ansah, supra; Polgari v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 957 (F.C.T.D.) (QL)). However, I disagree with the Applicant that the documentary evidence directly contradicted the Board's central findings that no plausible explanation was provided for the adoption. The documentary evidence was not relevant to the Board's critical finding (Piel, supra). Therefore, unlike in Orgona v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 574 (F.C.T.D.) (QL), this is not a case where the IAD relied selectively on relevant evidence. Just as a decision-maker is entitled to rely on documentary evidence in preference to that of the claimant (Polgari, supra), so too should the IAD, on the facts of this case, be entitled to rely on the oral evidence of the Applicant and his wife, in preference to the documentary evidence. The latter did not pertain to its plausibility concerns.
[12] The Applicant submits that the IAD ignored the Applicant's explanation for placing Gurdeep in Punjabi school. I do not think that the IAD did this. The Applicant provided similar explanations to the visa officer, and the IAD. Both rejected the explanation, which is allowed. Even if the IAD failed to consider a more nuanced explanation in this regard, the IAD's finding on this point was not a material issue. It was one of many factors that were considered. The IAD's main concern, as already discussed, was the lack of an adequate explanation for the adoption. In the case before this Court, unlike in Elezi v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 275 (F.C.T.D.) (QL), there was sufficient evidence to support the IAD's implausibility findings. Where a decision is properly founded on evidence, does not ignore material evidence and is supported by the evidence, this Court should not interfere (Zheng, supra).
[13] Finally, the Applicant's objection that the IAD did not examine the genuineness of the adoption through the lens of his culture is not persuasive. As noted by the visa officer, the adoption of a child who is not a newborn, by a couple that is able to have children is rare according to Indian customs and traditions. The IAD considered and adopted these reasons, demonstrating an awareness of Indian cultural norms.
Issue #2: Did the IAD breach the principles of natural justice?
[14] The Applicant submits that he was denied procedural fairness for the following reasons:
1. the IAD's reasons were not set out in clear and unmistakable terms (Singh v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1724) (F.C.T.D.) (QL); and
2. the IAD did not conduct a de novo hearing (Alam v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1751 (F.C.T.D.) (QL)).
[15] I disagree with the Applicant's submissions. I would adopt the words of Justice Martineau in Singh,supra at para. 26:
There is no doubt that the Board's analysis is somewhat sparse and its reasons could have been better articulated. However, the essential ingredients for following the Board's reasoning are present. Moreover, where the Board has reason to question the plausibility of central elements of a claim, it is entitled to give no credit to the rest of the applicant's [evidence]...
[16] The IAD's reasons were sufficiently intelligible to enable the Applicant to understand why his claim was rejected. The Board provided clear reasons for its implausibility and credibility findings (Alam, supra).
[17] With respect to whether the Applicant was denied a de novo hearing, the issue is less clear. On the one hand, the IAD's reasons heavily canvass the visa officer's findings, and little mention is made of evidence adduced at the IAD hearing. On the other hand, the visa officer's decision was properly before the IAD as evidence, for the IAD to accept, and a careful reading of the IAD hearing transcript reveals that extremely little, if any, of the testimony contained information that was not also before the visa officer. Upon reading the IAD's decision, and noting the comments in Singh, supra that apply to this case, I am satisfied that the IAD did provide the Applicant with a de novo hearing.
[18] The IAD's decision made independent findings of fact, in addition to endorsing many of the visa officer's findings. One such finding pertained to the Applicant's Will, which was evidence that was put before the IAD, but not the visa officer. There were also other references in the decision that indicate that the oral testimony of the Applicant and his wife was heard and appreciated.
[19] Once again, much of the testimony at the IAD hearing focused on matters that were not central to the IAD's primary concern. Given that the IAD expressed, in clear terms, why the testimony, on that central issue, was not accepted, there was no need to go further and address every aspect of the balance of the testimony (Piel, supra).
Conclusion
[20] For these reasons, the application will be dismissed. Neither party proposed that I certify a question. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application is dismissed.
2. No question of general importance is certified.
_Judith A. Snider_
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8046-03
STYLE OF CAUSE: JASVINDER SINGH MUNDI v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 13, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
APPEARANCES:
Mr. Mendel Green FOR APPLICANT
Ms. Marianne Zoric FOR RESPONDENT
SOLICITORS OF RECORD:
Green & Spiegel FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada