Date: 20020725
Docket: IMM-5954-00
Neutral citation: 2002 FCT 822
Toronto, Ontario, Thursday the 25th day of July 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
SINNATHAMBY SINNIAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] At issue in this application for judicial review is whether a visa officer erred in her conclusions that Mr. Sinniah did not validly adopt his wife's niece, Rajakumari Rasaratnam, and that there was no existing relationship of parent and child between Mr. Sinniah and his wife on the one hand and Ms. Rasaratnam on the other.
BACKGROUND
[2] Mr. Sinniah is a citizen of Sri Lanka. When he applied for permanent residence in Canada he included as a dependent his wife's niece, Ms. Rasaratnam, claiming her as his adopted daughter. On October 26, 1999, Mr. Sinniah and his wife were interviewed by a visa officer at the Canadian High Commission in Colombo, Sri Lanka. By letter dated May 30, 2000, the visa officer determined that Ms. Rasaratnam was not eligible for admission to Canada as an accompanying adopted dependent daughter.
THE VISA OFFICER'S DECISION
[3] The visa officer was not satisfied as to the legality of the adoption. In the refusal letter, she expressed her reasons for that conclusion as follows:
You have sworn under an oath in courts that you do not have children of your marriage whereas you stated at the interview and on your application form that you have seven children of your marriage. You stated at the interview that you are a resident of Negombo and have never resided in Chilaw whereas you have sworn under oath to the court that you are a resident of Chilaw.
Considering the certain facts have been misrepresented in the application for adoption, I am not satisfied that your adoption was made in accordance with the laws of Sri Lanka.
[4] Alternatively, the visa officer concluded that even if the adoption was in accordance with the laws of Sri Lanka, the application would still be refused as the visa officer was not satisfied that the adoption created a genuine relationship of parent/child for the following reason as expressed in the refusal letter:
You claimed to have raised the adoptee since the adoptee's father left home in 1990. However, it was revealed at the interview that you left behind the claimed adopted daughter in the village in North of Sri Lanka and came to Colombo in 1997 with your spouse and natural son. This is evidence that you did not consider the adopted daughter as part of your family.
I am not satisfied that a genuine parent and child relationship has been created between you and your niece. Furthermore, I believe that the adoption was performed in order for your niece to gain admission to Canada as a member of the family class.
RELEVANT LEGISLATION
[5] In order for Rajakumari Rasaratnam to be included in Mr. Sinniah's application for permanent residence as his adopted daughter it is necessary for her to fall within the definition of "adopted" found in subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172 which provides:
| "adopted" means a person who is adopted in accordance with the laws of a province or of a country other than 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 person's relatives.
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« adopté » Personne adoptée conformément aux lois d'une province ou d'un pays étranger ou de toute subdivision politique de celui-ci, don't l'adoption crée avec l'adoptant un véritable lien de filiation. La présente définition exclut la personne adoptée dans le but d'obtenir son admission au Canada ou celle d'une personne apparentée. |
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[6] In Gill v. Canada (Minister of Citizenship and Immigration) (1998), 229 N.R. 267 the Federal Court of Appeal confirmed the two-step process required by the definition, as that process was described by Justice MacKay in Canada (Minister of Citizenship and Immigration) v. Edrada (1996), 108 F.T.R. 60 (T.D.). Justice MacKay had there written, at paragraphs 18 and 19, that:
[...] The definition of "adopted" in s-s. 2(1) contemplates a two step process in which a determination must be made, first whether foreign adoption laws have been complied with, and second whether a relationship of parent and child is created.
[...]
In order to establish an adoption for the purposes of that definition, it is necessary to demonstrate the existence of a relationship of parent and child, in addition to compliance with applicable adoption laws.
ANALYSIS
(i) Did the visa officer err in her conclusion that the adoption laws of Sri Lanka were not complied with?
[7] The issue before the visa officer was not strictly whether Ms. Rasaratnam had the status in law in Sri Lanka of being adopted, but rather whether there had been an adoption "in accordance with the laws of" Sri Lanka. See: Singh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 37 (F.C.A.) at paragraph 17.
[8] The best evidence of an adoption in accordance with the laws of a country is a final order or judgment to that effect, because subject to appeal or being set aside, a judgment is conclusive between the parties and their privies, and is conclusive evidence against the world of the existence of the judgment, its date and its legal consequences. See: Halsbury's Laws of England (4th) volume 37 at paragraph 1224.
[9] While a judgment obtained by fraud or irregularity may be set aside, it is not every irregularity which warrants the setting aside of an order. Again as written in Halsbury's Laws of England (4th) volume 37 at paragraph 1210:
A judgment which has been obtained by fraud either in the court or of one or more of the parties may be set aside if challenged in fresh proceedings alleging and proving the fraud. In such proceedings it is not sufficient merely to allege fraud without giving any particulars, and the fraud must relate to matters which prima facie would be a reason for setting the judgment aside if they were established by proof, and not to matters which are merely collateral. The court requires a strong case to be established before it will set aside a judgment on this ground and the proceedings will be stayed or dismissed as vexatious unless the fraud alleged raises a reasonable prospect of success and was discovered since the judgment. [footnotes omitted]
[10] Before the visa officer at the interview was the formal adoption order issued by a court in Sri Lanka together with the declaration under oath made by Mr. Sinniah and his wife in support of their petition for an adoption order. The visa officer formed the opinion, as recorded in her Computer Assisted Immigration Processing System notes, that:
IN MY OPINION THE ADOPTION IN NOT LEGAL AS THE APPLICANTS SUBMITTED FALSE INFORMATION CLAIMING TO HAVE NO CHILDREN ON THIS MARRIAGE AND SUBMITTED FALSE ADDRESS OF RESIDENCE UNDER OATH TO THE COURTS.
[11] The visa officer admitted in cross-examination that she was not a lawyer, she had not consulted a lawyer about this particular case and she was not familiar with the distinction between an order being void and voidable.
[12] In these circumstances, I conclude that it was patently unreasonable for the visa officer to ignore the effect at law of a final Court order and to decide in the absence of cogent evidence that an order pronounced by a court in Sri Lanka was insufficient to establish the fact of an adoption made in accordance with the laws of Sri Lanka.
[13] The visa officer could not simply speculate on the effect of apparent irregularities which were collateral to the facts put before the Sri Lankan court in support of the petition.
[14] It next is necessary to consider whether the visa officer erred in her second conclusion because in order to succeed on this application Mr. Sinniah must establish that both conclusions were in error.
(ii) Did the visa officer err in her conclusion that Mr. Sinniah had not established a genuine relationship of parent and child?
[15] The issue of the bona fides of an adoption is a question of fact. The Immigration Appeal Division has written that it is necessary to consider a number of factors when considering the bona fides of an adoption, including the motivation for the adoption, the extent to which adoptive parents have maintained care and control over the child since the adoption, the knowledge and understanding the adoptive parents have of the adopted child and vice versa, and the plans and arrangements made for the child's future. See: Ly v. Canada (Minister of Citizenship and Immigration), [2000] I.A.D.D. No. 1261.
[16] In the present case, the visa officer considered only one fact, that Ms. Rasaratnam was initially left behind with a neighbour in Jaffna when the balance of the family left for Colombo. The reason given to the visa officer at the interview for this was that Ms. Rasaratnam had been left to complete her classroom studies. Subsequently she did join Mr. and Mrs. Sinniah in Colombo.
[17] The other relevant evidence before the visa officer, which was unchallenged, was that Mr. Sinniah and his wife had taken care and control over Ms. Rasaratnam for the past nine years since she was six years old when her natural mother died. Ms. Rasaratnam had been abandoned by her father when her mother died.
[18] The explanation that Ms. Rasaratnam was left to complete her schooling was an explanation for the family's conduct other than that they had simply abandoned Ms. Rasaratnam which the visa officer seemed to imply.
[19] The visa officer's conclusion that there was no genuine parent-child relationship was, in my view, unreasonable in that it was not supported by the preponderance of the evidence, but rather was based solely upon an inference of abandonment, which inference was made in circumstances where the conduct of Mr. and Mrs. Sinniah was equally consistent with a conclusion other than abandonment.
[20] In ignoring another equally plausible explanation for the conduct and in ignoring the preponderance of the evidence as to the existence of a genuine relationship the visa officer committed a reviewable error.
[21] For these reasons, the application for judicial review will be allowed and the decision of the visa officer set aside. Counsel posed no question for certification and no question is certified.
ORDER
IT IS HEREBY ORDERED THAT:
1. The decision of the visa officer made on May 30, 2000 whereby the applicant's adopted daughter was deemed not to be eligible for admission to Canada is set aside, and the matter is remitted to a different officer for redetermination.
"Eleanor R. Dawson"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5954-00
STYLE OF CAUSE: SINNATHAMBY SINNIAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, JUNE 19, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: DAWSON J.
DATED: THURSDAY, JULY 25, 2002
APPEARANCES: Ms. Helen P. Luzius
For the Applicant
Mr. Brad Gotkin
For the Respondent
SOLICITORS OF RECORD: Helen P. Luzius
Barrister & Solicitor
3080 Yonge Street
Suite 5030
Toronto, Ontario
M4N 3N1
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020725
Docket:IMM-5954-00
Between:
SINNATHAMBY SINNIAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER