Judgments

[2013] 4 F.C.R. 507

IMM-5521-11

2012 FC 512

Surinder Singh Jhajj (Applicant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Jhajj v. Canada (Citizenship and Immigration)

Federal Court, Barnes J.—Calgary, March 20; Ottawa May 3, 2012.

Citizenship and Immigration — Status in Canada — Permanent Residents — Judicial review of decision by Immigration and Refugee Board, Immigration Appeal Division (Board) refusing sponsorship application for permanent residence — Applicant adopting niece, citizen of India — Home study not completed — Visa officer receiving letter of no-involvement from provincial adoption authority — Refusing application pursuant to Immigration and Refugee Protection Regulations (IRPR), s. 117(3) — Board rejecting letter on basis not letter of no-objection pursuant to IRPR, s. 117(7) — Whether Board erring in interpretation of s. 117(7) — Board decision neither incorrect nor unreasonable — While s. 117(7) stating that where provincial adoption authority not objecting to adoption, “conclusive evidence” that best interests of the child requirements met, not all “best interests” considerations under s. 117(7) amenable to provincial determination — Applicant failing to present evidence that letter from provincial adoption authority displacing requirement for home study — Application dismissed.

This was an application for judicial review of a decision by the Immigration Appeal Division of the Immigration and Refugee Board (Board) refusing a sponsorship application for permanent residence.

The applicant and his wife adopted their niece, a citizen of India, and applied to sponsor her for landing as their adopted daughter. A home study requested by a visa officer was later authorized by the provincial adoption authority. However, counsel for the applicant advised the visa office that the home study could not be completed because the daughter had attained the age of majority. A letter of no-involvement written by the provincial adoption authority stated, inter alia, that a decision concerning the granting of Canadian citizenship to the applicant’s daughter rested with Citizenship and Immigration Canada (CIC). The visa officer rejected the sponsorship application on the basis that a home study had not been conducted as required by subsection 117(3) of the Immigration and Refugee Protection Regulations (IRPR). The Board held that the failure to obtain a home study was fatal to the sponsorship application and it rejected the letter of no-involvement on the basis that it was not a letter of no-objection as stipulated in subsection 117(7) of the IRPR.

The applicant argued, inter alia, that the letter was sufficient to satisfy subsection 117(7) because CIC’s operational manual Overseas Processing (OP), Chapter OP 3 on adoptions (Chapter OP 3) states that a letter of no-involvement and a letter of no-objection are equivalent and that the requirements for a home study were conclusively evidenced in the letter.

At issue was whether the Board erred in its interpretation of subsection 117(7), having regard to Sections 5.4 and 5.5 of Chapter OP 3.

Held, the application should be dismissed.

The Board’s decision was neither incorrect nor unreasonable. While subsection 117(7) states that there is “conclusive evidence” that the best interests of the child requirements have been met where the provincial adoption authority does not object to an adoption, the interpretative problem that arises is that not all of the “best interests” considerations that are said to be conclusively resolved by a provincial letter of no-objection are amenable to provincial determination. For instance, the provincial adoption authority has no obvious mechanism to determine if valid consents have been obtained from the natural parents or if the adoption is lawful and genuine in the foreign jurisdiction where it took place. In the present case, the provincial adoption authority found it necessary to ask the visa officer if the adoption was valid under Indian law. There was some question as to whether a home study would have been required if the provincial adoption authority had written in its letter that it did not have concerns for the best interests of the applicant’s adopted daughter and was not involved in the assessment of the placement because she was an adult. Here, the fundamental problem was that the applicant failed to present evidence that the letter from the provincial adoption authority was sufficient to displace the requirement for a home study.

STATUTES AND REGULATIONS CITED

Immigration and Refugee Protection Regulations, SOR/2002-227, s. 117 (as am. by SOR/2004-167, s. 41; 2005-61, s. 3; 2010-195, s. 11; 2010-208, s. 2).

AUTHORS CITED

Citizenship and Immigration Canada. Overseas Processing (OP). Chapter OP 3: Adoptions, online:  <http://www.cic.gc.ca/english/resources/manuals/op/op03-eng.pdf>.

Application for judicial review of a decision by the Immigration Appeal Division of the Immigration and Refugee Board (2011 CanLII 63827) refusing a sponsorship application for permanent residence. Application dismissed.

APPEARANCES

Dalwinder Hayer for applicant.

Rick Garvin for respondent.

SOLICITORS OF RECORD

Dalwinder S. Hayer, Calgary, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment and judgment rendered in English by

[1]        Barnes J.: This is an application for judicial review of a decision by the Immigration Appeal Division of the Immigration and Refugee Board (Board) [2011 CanLII 63827] which refused the applicant’s application to sponsor his adopted daughter as a permanent resident.

Background

[2]        On July 3, 2001, the applicant Surinder Singh Jhajj and his wife adopted their 13-year-old niece, Rajwinder Kaur Jhajj, in India. Shortly after, they applied to sponsor Rajwinder for landing in Canada as their adopted daughter. It is not entirely clear from the certified tribunal record what became of the sponsorship application but the visa office did not convene an interview of Rajwinder and her natural father until April 18, 2006. At that point, Rajwinder was 17 years of age. It appears from the CAIPS [Computer Assisted Immigration Processing System] notes that on April 27, 2006, the visa officer in New Delhi sent a fax to Alberta Children [and Youth] Services requesting a home study. This was followed up on June 5, 2006 and November 23, 2006, with letters from the visa officer to Mr. Jhajj asking that arrangements for an Alberta home study be completed. When the visa officer received no response, he sent further letters to Mr. Jhajj in February and April 2007.

[3]        On June 8, 2007, Mr. Jhajj’s legal counsel, Dalwinder Hayer, advised the visa post that a home study request had been submitted through Alberta Children [and Youth] Services. The record includes an authorization for a home study issued by Alberta Children [and Youth] Services on May 11, 2007, but it contains nothing further until March 22, 2008 when Mr. Hayer advised the visa post that a home study could not be completed because Rajwinder was over the age of 18—that being the age of majority in Alberta.

[4]        In the absence of a home study, the Program Manager for International Adoptions at Alberta Children [and Youth] Services, Anne Scully, wrote to the visa post on March 16, 2009 by way of a “Letter of No Involvement”. That letter stated:

Alberta Children and Youth Services has been asked to provide a Letter of No Involvement on behalf of the above-named child. Alberta Children and Youth Services has agreed to provide this letter upon receipt of an adoption order granted in the child’s country of origin.

For all purposes, when an adoption order is made in Alberta, the adopted child is the child of the adopting parent and the adopting parent is the parent and guardian of the adopted child as if the child had been born to that parent in lawful wedlock. Section 73 of the Alberta Child, Youth and Family Enhancement Act states “An adoption effected according to the law of any jurisdiction outside Alberta has the effect in Alberta of an adoption made under this Act, if the effect of the adoption order in the other jurisdiction is to create a permanent parent-child relationship”.

The attached Deed of Adoption was obtained with respect to Rajwinder Kaur, by Mr. and Mrs. Jhajj. An adoption ceremony was performed on July 2, 2001 in the presence of friends and relatives according to the adoption custom of India. The Adoption Deed was registered in the District Registrar Office, in Newanshahr, Punjab, India on August 21, 2001.

Alberta Children and Youth Services had no role in arranging this adoptive placement. A home assessment report was not completed on Mr. and Mrs. Jhajj in Alberta.

The decision concerning the granting of Canadian citizenship to Rajwinder Kaur, rests with Citizenship and Immigration Canada.^[1]

[5]        The visa officer then rejected the sponsorship application on the following basis:

Copy of request for home study on file, received by Alberta Children Services on 09MAY2007.

As per information provided on file, the applicant was adopted in India prior to the age of 18. As per R117(3), the adoption is considered to be in the best interests of a child if it took place under the following circumstances:

a)  a competent authority has conducted or approved a home study of the adoptive parents.

This was not complied with at the time of the adoption. Although the sponsors have explained that no home study [can] be provided as the applicant is over 18, I note that they had 5 years to ensure that the appropriate requirements for this adoption were met. I further note that at the time of our last request, the applicant was under 18 years of age and that no request for a home study was made until such time as the applicant had already turned 18 years old. As a result, I am not satisfied by the explanation provided for the lack of home study. The fact that the sponsors did not go through the appropriate steps to effect the adoption of their relative at the time of the adoption (and in the 5 years after the adoption) undermines the bona fides of the case, in addition to ensuring that the application does not meet the requirements of R117(3).

Application refused.

[6]        Mr. Jhajj appealed from this decision and argued the matter before the Board on June 8, 2011. This was almost 10 years after the Indian adoption and Rajwinder was then 22 years old. The respondent again raised the absence of an Alberta home study before the Board. The Board held that the failure to obtain a home study was fatal to the sponsorship application and it rejected Alberta’s letter of no-involvement on the basis that it was not a letter of no-objection as stipulated in subsection 117(7) [as am. by SOR/2010-195, s. 11] of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRP Regulations). The Board’s analysis of this issue is set out below (at paragraphs 6-9):

   At the beginning of the hearing, the Minister of Citizenship and Immigration (the “Respondent”) argued that the Applicant cannot be considered a “member of the family class” because there is no evidence that a home study was conducted or approved by a competent authority in the best interests of the child, pursuant to subsection 117(3) of the Regulations. The Appellant’s counsel conceded that a home study by a competent authority was not conducted or approved. The Appellant’s counsel argued that the letter provided by Anne Scully, who represents the competent authority in Alberta, the Alberta Children and Youth Services, fulfills that which is required under paragraph 117(3)(e) or paragraph 117(3)(f) of the Regulations. He further argued that the letter provided is conclusive evidence that the Applicant meets the requirements to be considered a member of the family class, as per subsection 117(7) of the Regulations. He argued that because the requirements of paragraph 117(3)(e) or paragraph 117(3)(f) have been satisfied, it was not necessary to conduct or approve a home study.

   Subsection 117(7) of the Regulations provides as follows:

(7)   If a statement referred to in clause (1)(g)(iii)(B) or paragraph (3)(e) or (f) has been provided to an officer by the competent authority of the foreign national’s province of intended destination, that statement is, except in the case of an adoption that was entered into primarily for the purpose of acquiring any status or privilege under the Act, conclusive evidence that the foreign national meets the following applicable requirements:

…

(c) in the case of a person referred to in paragraph (1)(b) who is an adopted child described in subsection (2), the requirements set out in paragraphs (3)(a) to (e) and (g).

   I do not agree with the Appellant’s counsel. The best interest of the child is defined in the Regulations. All of subsection 117(3) must be satisfied, including subsection 3(a), which requires that a home study by a competent authority be conducted or approved. Furthermore, paragraph 117(3)(e) requires that the competent authority state in writing that it does not object to the adoption and paragraph 117(3)(f) requires that the competent authority approve the adoption as conforming to the Hague Convention on Adoption, if the international adoption took place in a country that is a signatory of the Convention. I find that the competent authority in this particular case did not approve or provide a letter of no objection in writing. The letters in which the Appellant’s counsel refers from Anne Scully states in part, “At the request of the adoptive parents, enclosed please find a “Letter of No Involvement” with respect to sponsorship of a child that they obtained a Deed of Adoption for in 2001.” and “Alberta Children and Youth Services has been asked to provide a Letter of No Involvement [on] behalf of the above-named child…Alberta Children and Youth Services had no role in arranging this adoptive placement. A home assessment report was not completed on Mr. and Mrs. Jhajj in Alberta. The decision concerning the granting of Canadian citizenship to Rajwinder Kaur, rests with Citizenship and Immigration Canada.” This letter clearly indicates that the competent authority in this particular circumstance is not involved, which cannot be equated to their approval or not objecting.

   The Appellant’s counsel submitted that because the Applicant is now over the age of 18 years, a home study is not necessary and the panel should take into consideration that the failure to conduct a home study prior to her eighteenth birthday was beyond the Appellant’s control. The Immigration and Refugee Protection Regulations are very clear. This adoption took place when the adopted child was 13 years old; therefore, the best interests of the child as stipulated in paragraph 117(3) must be adhered to. Secondly, section 65 of the Act states, “In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations.” The Applicant is not a member of the family class because a home study was not conducted or approved in the best interests of the child; therefore I cannot reach beyond the purview of the Act and consider whether or not the Appellant’s actions or inactions give rise to sympathy. [Footnotes omitted.]

Issues

[7]        Did the Board err in its interpretation of subsection 117(7) of the IRP Regulations having regard to the Sections 5.4 and 5.5 of operational manual Chapter OP 3: Adoptions [Citizenship and Immigration Canada. Overseas Processing (OP)]?

Analysis

[8]        At the center of the disagreement between the parties, is the interpretation of subsection 117(7) of the IRP Regulations and the departmental interpretation of that provision as outlined in Sections 5.4 and 5.5 of operational manual Chapter OP 3: Adoptions (OP 3). The regulatory provisions state:

117. …

Provincial statement

(7) If a statement referred to in clause (1)(g)(iii)(B) or paragraph (3)(e) or (f) [no objection letter] has been provided to an officer by the competent authority of the foreign national’s province of intended destination, that statement is, except in the case of an adoption that was entered into primarily for the purpose of acquiring any status or privilege under the Act, conclusive evidence that the foreign national meets the following applicable requirements: (a) [Repealed, SOR/2005-61, s. 3] … (c) in the case of a person referred to in paragraph (1)(b) who is an adopted child described in subsection (2), the requirements set out in paragraphs (3)(a) to (e) and (g) [e.g. a home study]. [Emphasis added.]

The OP 3 offers the following additional guidance to the decision maker with respect to provincial letters of no-objection or no-involvement:

5.4.   Home study conducted by a competent authority

An assessment of prospective parents with respect to their suitability to adopt is undertaken by provincial and territorial authorities as a pre-condition to an adoption.

For immigration purposes, the Regulations require that in the case of an adoption a home study be conducted. Therefore, officers must ensure that a favourable home study conducted by a competent authority is available. In Canada, a competent authority includes provincial or territorial authorities and individuals authorized by those authorities, such as an accredited social worker.

A private adoption may take place outside Canada without a proper home study being done, even when the child is destined to Canada. This usually results in a letter of no-involvement by the provincial or territorial authorities.

See Section 7.4 for procedures if a home study has not been provided.

5.5.   Provincial notification letters

The following table describes the types of provincial notification letters.

Type of Letter	Description
Letter of no-objection	The province or territory where the child will live must state in writing that it does not object to the adoption. This letter is commonly called a "no- objection letter." R117(1)(g)(iii)(B) and R117(3)(e) require that authorities in the province of destination state in writing that they have no objection to the adoption. With respect to adopted children, the requirement for a letter of no-objection applies only to children adopted abroad by sponsors residing in Canada. If a sponsor resides abroad and an adoption takes place abroad, provincial authorities will not provide a letter of no objection.
Letter of no-involvement	Some provinces and territories issue a letter of no-involvement (“no-involvement letter”) if an adoption is finalised abroad prior to the adopted child’s arrival in Canada. The purpose of the letter of no-involvement is to inform the visa office abroad that an adoption order, which is in accordance with the laws of the place where the adoption took place, will be recognised by the adopting parents’ province or territory of residence. Letters of “no-objection” or “no involvement” satisfy the requirement that adoption is recognised in the place of residence of the adopting parents and fulfil the requirements of R117(1)(g) (iii)(B) and R117(3)(e). Information about responsible authorities in the provinces and territories can be found in Appendix B. Province specific information can be found in Appendix A. [Emphasis added.]

[9]        Counsel for the applicant argues that once an adoptee reaches the age of majority and the provincial adoption authority expresses no concern about a foreign adoption, there is no requirement for a provincial home study. The applicant further argues that the letter of March 16, 2009, from Alberta Children [and Youth] Services was sufficient to satisfy subsection 117(7) of the IRP Regulations because OP 3 states that a letter of no-involvement and a letter of no-objection are equivalent. In other words, the requirements for a home study, valid parental consent, a genuine adoption in India and Alberta, and no evidence of child trafficking were conclusively evidenced by Alberta’s letter.

[10]      Counsel for the respondent contends that the subsection 117(7) characterization of a provincial letter of no-objection as “conclusive evidence” does not mean that the best interests requirements identified in paragraphs 117(3)(a) to (e) and (g) are waived. Notwithstanding a statement by the provincial adoption authority that it does not object to a foreign adoption, the visa officer and the Board must still be satisfied that the competent provincial authority has carried out a home study. The fact that Alberta did not carry out a home study in this case was, therefore, properly found to be fatal to the sponsorship application.

[11]      The IRP Regulations at the centre of this disagreement are unnecessarily obtuse and the applicable ministerial guidelines offer little useful guidance to anyone trying to identify a regulatory intent.

[12]      It appears to be the case that the visa officer is expected to pay considerable deference to the provincial adoption authority with respect to some matters concerning the adoption of foreign children into Canadian families. This is not surprising because provincial child welfare authorities have the necessary expertise to assess when an adoption is in the best interests of a child. In the usual case of the adoption of a foreign dependent child, a home study would be completed and the provincial adoption authority would pass judgment on the appropriateness of the placement. I doubt that the Minister ever intended that a visa officer could reinterpret a home assessment that satisfied the provincial authority. Presumably, this was the rationale for the statement in subsection 117(7) that where the provincial adoption authority does not object to the proposed adoption of a foreign child, this is “conclusive evidence” that the best interests of the child requirements have been met.

[13]      The interpretative problem that arises from subsection 117(7) is that not all of the “best interests” considerations that are said to be conclusively resolved by a provincial letter of no-objection are amenable to provincial determination. For instance, the provincial authority has no obvious mechanism to determine if valid consents have been obtained from the natural parents of the child or if the adoption is lawful and genuine in the foreign jurisdiction where it took place. Indeed, in this case, Alberta Children [and Youth] Services found it necessary to ask the visa officer if the adoption was valid under Indian law.

[14]      I have reservations about whether a home study would still be required pursuant to section 117 [as am. by SOR/2004-167, s. 41; 2005-61, s. 3; 2010-195, s. 11; 2010-208, s. 2] if Alberta Children [and Youth] Services had said in its letter that it did not have concerns for the best interests of Rajwinder and was not involved in the assessment of the placement because she was an adult. In such a situation, I also doubt that either the visa officer or the Board would have demanded a home study. Here, the fundamental problem was the applicant’s failure to present sufficient clarifying evidence from Alberta Children [and Youth] Services to establish a foundation for the interpretive point he advanced to the Board and to this Court. Specifically, he did not put forward evidence from Alberta Children [and Youth] Services as to what it intended by its letter of March 16, 2009 or to verify that it no longer considered a home study to be necessary. The applicant did not satisfy the Board on the evidence presented that the letter from Alberta Children [and Youth] Services was sufficient to displace the requirement for a home study.

[15]      While I have some difficulty with the interpretation of section 117 adopted by the Board, I am not in a position to say that the decision was either incorrect or unreasonable.

[16]      In the result, this application is dismissed.

[17]      At the conclusion of the hearing in this matter, counsel requested an opportunity to propose a certified question. Should he choose to do so, the applicant will have five days from the date of this decision to submit a question for certification. The respondent will then have five days to reply.

JUDGMENT

THIS COURT’S JUDGMENT is that this application is dismissed.

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