Date: 20001212
Docket: IMM-1210-00
BETWEEN:
DIAL PABLA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review pursuant to section 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "Board") dated February 21, 2000. The Board held that it had no jurisdiction to hear the applicant's appeal of a visa officer's decision denying the applicant's adopted daughter permanent residence status, because she is not a member of the family class.
FACTS
[2] In 1981, the applicant, Dial Pabla, immigrated to Canada. In 1988, the applicant's wife immigrated to Canada. They have three biological children.
[3] The applicant sponsored the application for permanent residence of his adopted daughter, Ramandeep Kaur Pabla, who was born in 1985 in India. The visa officer refused the child's application for permanent residence because her adoption did not conform to the requirements of the Hindu Adoption and Maintenance Act.
[4] By letter dated June 17, 1999, the Minister advised the applicant that they wished to add a ground to the Board hearing, namely, parent-child relationship. The Board added this ground at the hearing. The Board dismissed the appeal holding that there is no genuine parent-child relationship between the applicant or the applicant's wife and the child.
[5] The applicant and his wife contend they have been close to the child since her birth in 1985. Although the actual adoption of the child did not occur until 1994, the applicant and his wife state that they intended to adopt her years earlier.
[6] The applicant testified to the Board that the child was taken to live with his wife in India two years after the child's birth. He later changed this to three years. This means that the child was brought to live with the applicant's wife in 1988, the year she immigrated to Canada.
[7] The applicant's wife testified to the Board that the child lived with her for six months to one year after the child's birth before immigrating to Canada in 1988. The applicant's natural father told the Board that the child was informally adopted by the applicant one year after the child's birth. The child's permanent residence application indicated that she lived with her natural parents until age nine.
[8] Because of the inconsistency in the dates (among other factors), the Board held the testimony of the applicant and his wife was not credible, and that there is no genuine parent-child relationship.
[9] According to the applicant there is a parent-child relationship. The applicant contends that he supported the child financially since the adoption, he sent gifts to India, he visited the child twice yearly, and his wife maintains close contact with the child.
ISSUES
| [10] 1. Did the Board err in law in adding the issue of parent child relationship to the Board hearing? |
| 2. Was the Board's assessment of the parent-child relationship reasonable? |
| ARGUMENTS OF THE APPLICANT |
1. Did the Board err in law in adding the issue of parent child relationship to the Board hearing?
[11] The applicant argues that the decision to add an issue at the Board hearing was beyond the jurisdiction of the Board. The applicant concedes that the Board hearing is considered a de novo proceeding, and therefore new evidence can be introduced. However, the applicant argues that the appeal is from the decision of a visa officer, and therefore it is not open to the Board to open up a new area of inquiry which was not before the visa officer. The applicant further argues that the Board breached the principles of fairness by not giving reasons for its decision to add the issue of parent-child relationship to the Board hearing.
2. Was the Board's assessment of the parent-child relationship reasonable?
[12] The applicant submits that the evidence of the parent-child relationship must be viewed within the context of the applicant's culture and in light of the fact that the applicant has been separated from the child for an extended period of time (Jeerh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No.741). The applicant argues the case at bar is analogous to Singh v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 876 where the Court quashed the Board's finding that the adopted child was not a member of the family class because the evidence was not credible. The Court held that it found no evidence to contradict the evidence of the applicant, and therefore the Board's finding is not reasonable.
[13] The applicant argues that the Board's emphasis on events that occurred before the adoption of the child is of little or no probative value. The Board should not have placed so much emphasis on the dates when the child came to live with his wife. The Board erred in viewing the matter microscopically rather than focussing on the uncontested evidence that the child came to live with his wife at an early age.
[14] The applicant also argues that the Board erred in drawing an adverse inference from the fact that the child indicated that her place of residence is with her natural parents. The applicant states that the Board ignored the fact that since the child's adoption, her address is consistent with her leaving her parents home to move to the home of the power of attorney. The applicant further submits that the Board overemphasized the fact that the applicant was not present at the adoption ceremony, since the applicant explained he needed to return to Canada to care for his business. The Board also drew an unreasonable conclusion from the fact that the applicant's wife did not visit the child in India, since the applicant went to India twice per year to see the child.
[15] The applicant also argues that the fact that the applicant did not know how often the child visited her natural parents, and the fact that the applicant did not receive school documents of the child, were overemphasized by the Board. The latter consideration does not take into account the distance between the child and the applicant.
[16] Finally, the applicant argues that the Board failed to take into account the following facts: the child has cut off most contact with her natural parents, the applicant supports the child financially, sends her gifts, and visits her twice yearly. Further, the Board ignored the numerous phone calls to India to speak to the child. These facts indicate the existence of a parent-child relationship, and therefore the decision of the Board is unreasonable.
ARGUMENTS OF THE RESPONDENT
1. Did the Board err in law in adding the issue of parent-child relationship to the Board hearing?
[17] The respondent submits that it was open to the Board to add the issue of the parent-child relationship given that the appeal is considered a de novo proceeding. As such, the Board is given scope to considered issues not before the visa officer. The respondent submits that the visa officer stated in his refusal letter that he was concerned about the genuineness of the parent-child relationship.
[18] Further, the respondent points to the definition of "adopted" in the Immigration Regulations which states in part "...where the adoption creates a genuine relationship of parent and child". The applicant ought to have known this issue would be raised, and was in fact told six months before the hearing that it could be raised.
[19] The requirement to give reasons to add this issue does not affect the Board's ability to hear the appeal as a hearing de novo. The lack of reasons does not prejudice the applicant since the applicant knew the case to meet before the hearing.
2. Was the Board's assessment of the parent-child relationship reasonable?
[20] The respondent argues that the evidence supports the conclusion that there is no genuine relationship between the child and the applicant. The child never lived with the applicant or his wife, different dates were given for when the child lived with the applicant's wife, the applicant did not attend the adoption ceremony, the applicant's wife has not seen the child for five years and the applicant did not exercise parental control over the child.
[21] The respondent argues the pre-adoption relationship is relevant to determining the existence of a genuine parent-child relationship. This evidence was used to determine the credibility of the applicant and his wife. Further, the Board made reference to the applicant's reasons for not attending the adoption ceremony in its decision, and also considered the fact that the applicant visited the child twice per year. This evidence was therefore not ignored by the Board.
[22] Further, the respondent argues it is reasonable for the Board to consider whether the applicant's wife was in contact with the child. It was also reasonable to consider whether the applicant knew how often the child visited her natural parents. Further, there is no evidence that the Board was not sensitive to the distance between the applicant and the child in making its decision.
ANALYSIS
1. Did the Board err in law in adding the issue of parent-child relationship to the Board hearing?
[23] Given that an appeal to the Board is considered a de novo proceeding, the Board is open to considering issues which were not before the visa officer. This position is confirmed by Rattan v. Canada (M.E.I.) (1995), 73 F.T.R. 195 where the Court states at paragraph 7:
An appeal under section 77 is not a judicial review where only the correctness of
the immigration officer's decision on the basis of the material before him or her is
under consideration. This is clear from subsection 77(3) which allows for appeals
| on questions of fact and from the procedure followed which allows the sponsor, in Canada, to call witnesses and other evidence...The Appeal Division's role is not to determine whether the immigration officer's decision was correctly taken, but to determine if the sponsoree is in fact a member of the class of persons excluded by s. 4(3) of the Regulations. |
[24] In my opinion, the applicant's argument that his duty of fairness has been breached is without merit. Given that the issue of a genuine parent-child relationship is inherent in the definition of "adopted" in theImmigration Regulations, and given that the applicant was told in writing by the Minister that this could be an issue, the applicant should have been prepared to address this issue at the Board hearing. The fact that the Board did not give reasons to justify its decision to include the issue at the hearing, in my opinion, does not change this analysis.
2. Was the Board's assessment of the parent-child relationship reasonable?
[25] The Board concluded that there was no genuine parent-child relationship based on the following facts:
| (a) The inconsistency in the testimony between the applicant and his wife as to when the child came to live with the applicant's wife; |
| (b) Three different dates were given by the applicant, his wife, and the child's natural father as to when the child went to live with the applicant's wife; |
| (c) The child's permanent residence application indicated that she lived with her natural parents until the age of nine; |
| (d) The applicant did not attend the adoption ceremony with no credible explanation; |
| (e) The applicant's wife has not visited the child since 1994; |
| (f) The applicant did not exercise parental control over the child. |
[26] Nevertheless, in my view, the Board failed to consider many other facts that were not contradicted and showed that a genuine parent-child relationship existed between the members of the family.
[27] I concur with counsel for the applicant that in reaching the conclusion that the adoption did not create a parent-child relationship, the Tribunal ignored the evidence that:
| - The child has cutoff virtually all contact with its natural parents and had since the adoption lived with the power of attorney of the Applicant. Given this it is doubtful that the child could have maintained a relationship with her parents and as such if the Applicant is not to be considered the parent the child would be left with no parent. This result is of course absurd. |
| - The Applicant testified that he has supported the child financially since the adoption. |
| - The Applicant testified in addition that he sent gifts to India. |
| - The Applicant further testified that he visited twice yearly and stayed with the children during his visits. This is highly unusual and indicates a strong interest on the part of the applicant to maintain a close relationship with the child despite the distance. |
| - The Applicant testified that, while he was in India, he spent the entire time with his child. |
| - He testified that his wife maintained contact with the child after the marriage and that the child lived with the applicant's wife during the first years of her life so that a close relationship was established. |
| - He testified that the natural parents have not assisted in the financial support for the children [sic] since the adoption. |
| - The documentary evidence included proof of numerous phone calls to the children [sic] consistent with his evidence on this point together with affidavits attesting to the genuineness of the relationship.1 |
[28] Justice Sharlow in Jeerh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 741, Court File No. IMM-4625-98, May 17, 1999, held:
| As stated above, the tribunal concluded that there was no genuine relationship of parent and child. The factual foundation for this conclusion is what the tribunal describes as "significant inconsistencies and contradictions in the applicant's evidence relating to his understanding of Gurnek's scholastic achievements. |
| In the circumstances of this case, it was inevitable that there would be a separation between the applicant and Gurnek that was long in distance. It has also become long in duration, in part because of the time required by the sponsorship proceedings and this application. It cannot be surprising that the applicant is not as familiar with Gurnek and his every day life as he would be if they were living together. The tribunal itself drew inferences about Gurnek's scholastic achievements that cannot be justified without evidence of the significance of the marks assigned to him. |
| When the evidence of the applicant is reviewed in its totality in light of the circumstances, nothing that he said is logically inconsistent with the conclusion that the relationship between the applicant and Gurnek is a genuine relationship of parent and child. In the absence of any indication as to the tribunal's view of the remainder of the evidence, I cannot conclude that its decision was reasonably open to it. |
| I would add that I find it difficult to reconcile the undisputed legal validity of the adoption with the tribunal's conclusion that there is no genuine relationship of parent and child. |
| The record includes an extensive description of the applicable Indian adoption law which says, among other things, that the legal validity of the adoption depends upon certain formal requirements, described as a ceremony of giving and taking, as well as proof of an intention on the part of the natural parents to give up the child, and an intention on the part of the adoptive parents to take the child. This evidentiary requirement in Indian law reflects the importance of the adoption as an event with substantial legal consequences. The material includes this quotation from Kishori Lal v. Chaltibai; 1959 Supp. 1 SCR 698: |
| As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring the property to comparative strangers, or more remote relations, it is necessary that the evidence to support it should be such that it is free from all suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth. |
| It seems to me arguable, if the material in the record describing Indi adoption law is correct, that a genuine relationship of parent and child is an essential characteristic of a valid Indian adoption. If that argument is accepted, it would be impossible for an adoption to meet the first condition and not the second condition of the definition in the Regulations. However, in the circumstances it is not necessary for me to reach a conclusion on that point. |
[29] After reviewing carefully the decision of the Board in light of Justice Sharlow's decision, I am convinced that the Board in failing to consider the context, the distance and the separation, and particularly the way the applicant made efforts to create and sustain the parent-child relationship, made a reviewable error.
[30] For these reasons, this application for judicial review is granted. The decision of the Appeal Division of the Immigration and Refugee Board, dated February 21, 2000, is quashed and the matter is remitted for reconsideration by a differently constituted panel.
[31] Counsel for the applicant suggested a question for certification:
| In an appeal from a decision of a visa officer made pursuant to section 77 of the Immigration Act, can the Appeal Division consider a ground for refusal not raised by the visa officer, and for which reasons were not provided, where counsel for the appellant objects to the addition of the ground? |
[32] The Court received oral submissions by both parties on that question.
[33] The Court considers that the Board's decision was dismissed because it made an error of facts. In my view, this suggested question does not raise a question of general importance. Therefore, the question will not be certified.
Pierre Blais Judge
OTTAWA, ONTARIO
December 12, 2000
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