Date: 20000707
Docket: IMM-4738-99
BETWEEN:
GURSEWAK SINGH GILL
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] These reasons relate to the judicial review of a decision of the Appeal Division of the Immigration and Refugee Board ("IAD"), which decision found that Kuldeep Kaur Gill was not a member of the applicant's family class and, therefore, could not be sponsored by the applicant for admission to Canada as a permanent resident. The applicant asserts that Kuldeep is his and his wife's adopted daughter.
[2] A visa officer, in India, interviewed Kuldeep, her natural parents, and the applicant's brother who had been given power of attorney to act for the applicant in caring for Kuldeep, in India, until her immigration status is resolved. The visa officer reviewed the documentary evidence that was placed before him and, in the light of this evidence and the interviews, determined that there had not been a valid adoption. In summary, the visa officer refused the application because of his finding that there was no adoption ceremony, there was no intent to transfer Kuldeep to the family of her adoptive parents, no genuine parent-child relationship, and that the adoption was entered into for the purpose of facilitating Kuldeep's admission into Canada.
[3] The visa officer held that the claimed adoption did not comply with the Hindu Adoptions and Maintenance Act, 1956, of India, and was therefore void. For an adoption to be valid, a giving and taking is required in circumstances that ensure that due publicity is given to the adoption. The visa officer concluded that the giving and taking had not occurred.
[4] In the refusal letter, the visa officer stated:
| ... Publicity is paramount to ensure enforceability of those rights especially in the matter of inheritance. Your adoption seems to have been performed in secrecy. Due publicity was neither sought nor achieved in your case. I must, therefore, conclude that these [sic] was no intention of transferring you from the family of your birth to that of your adoptive parents. |
| Asked how you adoption was performed, your natural father stated that you, your natural parents and your sponsor's power of attorney gathered at the gurdwara where a ceremony of giving and taking in connection with your adoption was completed. Your natural father stated that between 15 and 20 persons witnessed the actual ceremony. Photographs of the ceremony were presented in support of your application show approximately two people, apart from the participants present to witness the ceremony. Although these two guests come from the same village as your sponsor's power of attorney, he was unable to identify them. No credible explanation was offered for the fact that none of the guests are visible in any of the photographs. |
| Photographs of the adoption ceremony were presented in support of your application; five photographs were identified has having been taken in the gurdwara where the adoption ceremony took place. In my opinion, the photographs appear staged as in almost every photograph, only the participants are visible. Everyone is staring directly into the camera. In none of the photographs does anyone appear to be observing a solemn ceremony. This conclusion is supported by the fact that in the only photograph of the actual giving and taking, the priest is not visible. |
[5] This refusal led to an appeal by the applicant to the IAD. For that purpose he provided an affidavit of Kulwant Singh, priest of the Gurdawara Singh Sabha, who conducted the ceremony, and who attested to the fact that from 16 to 20 people attended. The applicant provided an affidavit of Nirmal Singh Sarpanch who attested that he had attended the adoption ceremony and the giving and taking. The IAD did not focus on the validity of the adoption, but instead on whether or not a parent-child relationship had been created as a result of the adoption. While the visa officer stated that no parent-child relationship had been created, there is little evidence recounted by him to support that conclusion, except that relating to the alleged invalidity of the adoption.
[6] The IAD found that it did not need to address the issue of the validity of the adoption, if it concluded that no parent-child relationship had been created. It found that no such relationship existed because: (1) the adoptive parents' motivation for the adoption was ambiguous; (2) little funds had been spent for the adoptive daughter's upkeep in India, and little direction given by the adopting parents to the power of attorney in India concerning the daughter's upbringing (care and guidance); (3) there had been a minimal amount of communication between the daughter and the adoptive parents since the adoption.
[7] Counsel for the applicant argues that the IAD's decision with respect to ambiguous motivation was grounded on one phrase, in one letter the adoptive parents sent to her. ("We really want that you should get visa as soon as possible so that you can help your mother doing domestic work.")
[8] Counsel argues that the IAD did not give sufficient weight to the fact that the power of attorney, in India, was the applicant's brother, and that the adopted daughter had been integrated into his family there, pending resolution of her immigration status. Counsel also states that it was unreasonable to conclude that little money had been spent for her upkeep without the IAD having had some evidence before it of how much it costs to keep a child for a year, in India.
[9] Counsel further argues that it was unreasonable to expect more communication between the parents and the child, when the relationship was still a long distance one, and there had as yet been little opportunity for bonding between them.
[10] I will quote the IAD decision in its entirety:
| Gursewak Singh GILL (the "appellant") appeals the refusal of the sponsored application of Kuldeep Kaur GILL (the "applicant"), from India. The sponsored application was refused because in the opinion of a visa officer the applicant is not "adopted"1 as defined in the Immigration Regulations, 1978 (the "Regulations") and so is not a member of the family class. |
| 1. "Adopted" means a person who is adopted in accordance with the laws of a province or of a country other then Canada or any political subdivision thereof, where the adoption creates a genuine relationship of parent and child, but does not include a person who is adopted for the purpose of gaining admission to Canada or gaining the admission to Canada of any of the persons relatives; |
| The determinative issue in this appeal is whether or not, as a result of the adoption, the appellant and the applicant created a genuine relationship of parent and child as outlined in the definition of "adopted" in subsection 2(I) of the Regulations. |
| The applicant was born on January 11, 1985. She is the appellant's nephew's daughter and has two younger sisters, Karamjit Kaur born on December 25, 1988 and Sukhwinder Kaur born on May 18, 1991. She also has a younger brother, Baltej Singh who was born on June 19, 1993. |
| The 36 year-old male appellant was granted landing on November 19, 1988 as the spouse of his wife Paramjit Kaur Gill. The couple married on December 24, 1988 and had one son, Gurjit Singh who was born on January 12, 1991. The appellant has become a successful real estate businessman with assets which include a $350,000 home, two rental properties, and over 106 acres of land in and around the Calgary area. He also owns 10 acres of farmland. 2 plots of land in the city of Moga and two houses. |
| The appellant's wife works for the Calgary City Planning Department. She developed rheumatoid arthritis in 1983 and takes Methotrexate and Indocid to control the disease. Mrs. Gill testified that when their son was conceived, she stopped taking these drugs during the term of her pregnancy. Her arthritis worsened as a result and her doctor advised against conceiving another child. The arthritis worsened in 1995 and the couple gave up hope of having more children. The appellant testified his wife first raised the idea of adopting another child in 1996. They chose not to investigate the Alberta Adoption Services but instead chose the applicant and made the arrangements for the adoption over the phone before travelling to India. |
| The appellant testified that he and his wife and son travelled to India during January 1997 and spent one month with the applicant. This was done to determine if the four individuals got along together. The appellant testified that he knew her before immigrating to Canada but his wife had not met her prior to the trip. |
| The adoption ceremony was performed on February 23, 1997. The appellant testified that fifteen to twenty people attended the adoption including the appellant and his wife and the biological parents of the applicant. The family returned to Canada together on March 2, 1997. The appellant and his wife appointed Jaswant Singh Gill to be their attorney on April 15, 1997. |
| The appellant testified he financially supports the applicant. He stated he sent for [sic] cheques to the applicant. One cheque was sent on October 23,1997 for 12,658 rupees and a second for 13,092 rupees was sent on January 7,1998. A third cheque is not legible but would appear to be the amount of 13,237 rupees recorded on February 9, 1999 in the applicant's bankbook. The appellant's wife testified that she took 20,000 rupees with her when she visited the applicant on February 1999. |
| The appellant has not visited the appellant since the adoption although the appellant's wife did visit the applicant in February 1999. |
| The appellant placed copies of correspondence and phone bills into evidence. |
| The appellant and his wife were the only witnesses. |
| The relationship of parent and child is characterized by a number of factors which, when examined, can provide evidence of the nature of the relationship. Some of these factors include the motivation for the adoption, the communication between the adoptive parents and the child, the financial and emotional support provided to the child by the adoptive parents and the suasion the adoptive parents have over the adopted child. This is not an exhaustive list. |
| The panel finds that the adoption has not created a genuine relationship of parent and child. The reasons for this finding follow. |
| First the motivation for the adoption is not clear to the panel. Although the panel accepts the evidence that the couple are not able to have any more children, there is also evidence that the applicant was adopted to help take care of the applicant's family. The appellant and his wife both testified that Mrs. Gill's arthritis worsened in 1995. Their decision to adopt was reached soon after. The applicant's letter of October 21, 1997 sent to the applicant states: "Our Mom has a lot of pain in the knees and other joints of the body. W e really want that you should get visa as soon as possible so that you can help your mother doing domestic work." |
| Second, the panel finds that the appellant provides no direction to his attorney in the care of the child. The appellant testified that the applicant has lived with his attorney since the adoption. The special power of attorney agreement "authorise(s) [sic] our said attorney to care, control and provide guardianship to our adopted daughter Kuldeep Kaur Gill and arrange for her schooling and apply for her passport and other immigration documents for our daughter's immigration to Canada." The appellant's testimony confirms that the day to day care of the applicant is provided for by his attorney. He stated he gave blanket instructions for her care. His attorney has never called to ask for direction from the appellant or his wife. |
| Third, the appellant's evidence shows he provides very little financial support for the applicant. The appellant placed into evidence a photocopy of the applicant's bankbook. He testified that he has sent funds four times. He provided photocopies of bank [sic] three bank drafts. It looks as if there are three deposits totalling 38,837 rupees in the bankbook but only one withdrawal around January of 1998 of what appears to be 12,000 rupees. The account balance of 27,654 rupees attests to the fact that although the appellant sent funds to the applicant no moneys have been spent on the applicant's care in the past 18 months. The appellant's wife testified that she had taken 20,000 rupees with her when she visited the applicant for two weeks in February 1999. No documentary evidence was provided to confirm this testimony. The panel concludes that the appellant provides, on a balance of probabilities, has not shown that he financially supported the applicant through the funds he has sent to India. |
| Fourth, the appellant requires no accounting of the expenditure of the few funds he provides for the care of the applicant. He stated he expects his attorney to make reasonable purchases and expenditures. He provided no evidence to show that he knows any of the expenditures made for her care. |
| The appellant's counsel submitted that a relationship of parent and child is difficult to establish when the parents and the adopted child are so far apart. The panel agrees but would expect, in a genuine relationship of parent and child, the parent to keep abreast of the child's development through the social and financial events in the child's life. The panel would expect to hear that the appellant had stepped in periodically to provide direction in the child's development by providing instructions to his attorney. A child's development can be effected through both financial and social decisions. In this case, it would appear that very little money was spent on the applicant so the appellant did not make financial decisions which would show he was involved in the applicant's care and development. |
| The appellant's counsel submitted that there had significant changes in the applicant's life which were created by the adoption. He submitted and the evidence shows that the applicant moved from a poor environment to a much more affluent one. The applicant has a television set to watch and good clothes to wear. The panel agrees that such changes have taken place. However, such environmental changes are only one part of a parent child relationship and, in the panel's opinion, not as important as providing direction to the appellant's attorney for the development of the child. |
| Finally, the panel finds that the appellant has not established on a balance of probabilities that there is communication between the appellant and the applicant. Although the appellant provided copies of phone bills with a variety of calls to the India, he provided no way for the panel to identify which calls were made to the applicant. In addition, the appellant provided photocopies of letters with translations. Over the 30 months since the adoption, seven letters have been sent by the appellant to the applicant and two letters were sent by the applicant. The letters have no accompanying envelopes. The letters are brief and have little content. Although it is unlikely that the applicant would write long letters,the panel would expect the appellant to have written more about day to day life in his family or of life in Canada. The appellant stated that he is a busy man. If this is the case and the panel does not doubt this, why has the appellant's wife not written? It was she, after all, who visited the applicant in February 1999. |
| After considering all of the evidence placed before me, the appellant has not shown, on a balance of probabilities, that the appellant has formed a relationship of parent and child with the applicant. The applicant is not a member of the family class as outlined in subsection 2(1) of the Regulations. |
| Having found that the appellant has not shown that a genuine relationship of parent and child has been created I need not make a determination on the legal validity of the adoption or whether the applicant is a person who is adopted for the purpose of gaining admission to Canada. |
[11] I accept counsel for the applicant's argument that the failure of the IAD to note that the power of attorney was the applicant's brother, leads to a conclusion that it ignored highly relevant evidence. It may be that the IAD would still have found that there should have been more direction given concerning the daughter's upbringing. On the other hand, the fact that the daughter was being looked after by a brother and integrated into that family, with the brother's own children, is a factor that should be expressly considered. In addition, the Board's rhetorical question "why has the appellant's wife not written" is explained in the record. She did not write Punjabi, the daughter's language, and the daughter does not read English.
[12] In the circumstances, the application will be allowed and the decision under review set aside. The appeal will be referred back for reconsideration by a different panel of the IAD.
Judge
OTTAWA, ONTARIO
July 7, 2000