Date: 20010925
Docket: IMM-6060-00
Neutral Citation: 2001 FCT 1047
BETWEEN:
VERNON SARATH PERERA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This application is for the judicial review of a decision of the Immigration and Refugee Board, Appeal Division ("the Appeal Division"), dated November 3, 2000, wherein the latter dismissed the appeal of the applicant respecting a decision of a visa officer who refused the sponsored application for permanent residence in Canada of Ramesh Probadaa Yahathugoda and Haritha Prasad Yahathugoda, the two adopted sons of the applicant.
Facts
[2] The applicant is a fifty year old man who landed in Canada on an independent basis in May 1969 and is now a Canadian citizen. In September 1985, after a divorce, he returned to Sri Lanka and married his second wife Indra who was landed in 1988 and is now also a Canadian citizen. They have an 11 year old daughter from their marriage.
[3] The two adopted children are the sons of Indra Perera's youngest sister and they are now 13 and 14 years old respectively. The applicant and his wife went to Sri Lanka in 1998 to visit their respective families. They found that the wife's sister was having difficulty raising her three children after the death of her husband who was an alcoholic. Mrs. Perera's sister and her three children had been living with a brother who was getting married and unable to continue to provide for them. The applicant and his wife made inquiries at Citizenship and Immigration Canada and the Ministry for Children and Families in British Columbia so as to complete the adoption of their nephews and to bring them to Canada.
[4] It is common ground that the adoption was legal in Sri Lanka and was approved by both the Department of Probation and Child Care Services of Sri Lanka and Adoption and Counselling Services in British Columbia.
[5] The Sri Lanka Department in a letter dated September 6, 1999, wrote as follows:
...These children are aware of the adoption and are anxious to be with the maternal aunt and her family. They are aware of the adoption and they feel that they will have a better future.
It would be greatly appreciated if the letter of approval for this adoption from the central Authority/Accredit Agency of Canada could be sent to me to finalize the legal process.
[6] On the other hand, CHOICES, the Adoption and Counselling Services, a licenced non-profit adoption agency in British Columbia, in a document dated February 22, 1999, wrote:
...The above named applicants have complied with the standards established by CHOICES in the adoption and preparation process and are approved to adopt according to the Adoption Act of British Columbia. They have been recommended as adopting parents for their nephews, Prasad Haritha Yahatugoda, born on January 21, 1987, and Ramesh Probodha Yahatugoda, born on January 18, 1986, who reside in Sri Lanka.
The Visa Officer's Decision
[7] By way of a letter dated February 11, 2000, the Visa Officer informed the two adopted sons that they were not eligible for admission to Canada as the dependent sons of their sponsor pursuant to paragraph 2(1) of the Immigration Regulations, 1978 which defines the term "adopted" as follows:
"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.
(my emphasis)
[8] The Visa Officer wrote that he believes that they were adopted for the purpose of gaining admission to Canada:
...You appeared to be content and well cared for and admitted that you are happy in Sri Lanka ... You stated that you have only seen your adoptive parents (your uncle in [sic] aunt) twice and for a relatively short time ... I believe that you were adopted primarily for the purpose of gaining admission to Canada for the purpose of studying.
The Appeal Division's Decision
[9] The Appeal Division noted that Mr. Perera testified that both he and his wife came from large families and would like to have more children. They found that Mrs. Perera's sister, Dona Renuka, was having considerable financial difficulty raising her sons. The Appeal Division referred to the factors to be considered in assessing whether a parent and child relationship is established, including the motivation for adoption, communication between the adoptive parents and child, financial and emotional support provided to the child by the adoptive parents, and the authority of the adoptive parents have over the adopted child.
[10] The Appeal Division found that there was little evidence of a genuine parent and child relationship between the Pereras and the applicants:
...Rather Mr. and Mrs. Perera are a caring uncle and aunt who wish to bring the boys to Canada so that they may complete their education. There has been no attempt to separate them from their natural mother and, indeed, they continue to live with her and regard her as their mother.
[11] The Appeal Division made no reference whatsoever to the two key documents above referred to which were duly filed before the hearing. It concluded that:
...on a balance of probabilities, the appellant adopted the applicants primarily for the purpose of their gaining admission to Canada as members of the family class and that there is not genuine parent and child relationship between the appellant and the applicants.
Analysis
[12] At the outset, it is clear that the failure of the Appeal Division to consider the two vital documents above referred to is a fatal error which has led them to a wrong decision. Those two documents relate directly to the issue of a genuine parent and child relationship and more particularly relate to the motivation and planning of the applicant and his wife.
[13] Moreover, the Appeal Division has adopted an improper concept of "genuine parent and child relationship" in suggesting that the adopting parents' desire to bring the boys to Canada and provide them with a better life and education is contradictory to the establishment of a genuine parent and child relationship. Contrary to the Appeal Division's understanding of the definition of the term "adopted", the words "genuine parent and child relationship" do not require that there existed a fully developed parent and child relationship between the adoptive parents and the children at the time of a sponsored application. More often than not, the genuine relationship is created as a result of the adoption. The mere fact that adoptive parents want to bring their adopted children with them to the country where they live is not a presumption that they are attempting to create an adoption of convenience. Canadian parents fly all over the world to find and adopt children. Surely, visa officers will not close the door to these children because genuine parental relationships have not yet been created.
[14] Similarly to a so-called "marriage of convenience" (where two total strangers fake an illusory marital relationship so as to admit a temporary spouse to Canada) an "adoption of convenience" would be a situation where Canadian citizens would pretend to adopt an unknown child so as to bring him to Canada for a financial reward. Clearly, such is not the case here.
[15] Obviously, the two adopted children still live with their natural mother because they are not allowed to join their adopted parents in Canada. Again, if an adoption is to create a genuine relationship between new parents and adopted children, such a creation is not defined by the past but by the future about to happen as a result of the adoption. The International Adoption and the Immigration Process published by the Government of Canada deals with the sponsorship and defines as follows "Who May Be Sponsored":
Children under the age of 19 may be sponsored to come to Canada if they have been adopted outside Canada according to the laws of another country. The application for permanent residence will be approved if the visa officer believes there is a genuine parent-child relationship being created as a result of the adoption. The application for permanent residence may be refused if the visa officer concludes that the real purpose of the adoption is to circumvent immigration requirements.
(my emphasis)
[16] The words "a genuine parent and child relationship being created as a result of the adoption" are pregnant with significance. They point to a future relationship to be created, not to the confirmation of a present situation. An adoption is a forward looking relationship.
[17] In the instant case, the applicant and his wife have taken deliberate steps to establish a parent and child relationship. First, in 1998, the Pereras went to Sri Lanka to visit their families and found that Mrs. Perera's sister had difficulty rising her three children after the death of her husband. They then decided to adopt their two nephews with the consent of the children's mother. Second, they took the necessary steps in Sri Lanka to complete the adoption of their nephews. Third, they appeared before Citizenship and Immigration Canada and the Ministry for Children Families in British Columbia to complete the adoption. Fourth, Mr. Perera brought considerable financial assistance to the nephew's family. Fifth, they are willing and eager to bring the two children to their home in Canada and to afford them good education and a future in this country. This is not an adoption of convenience but a genuine relationship being created.
[18] Counsel for the respondent brought to my attention, after the hearing, my colleague Muldoon J.'s decision in Kwan and The Minister of Citizenship and Immigration (August 30, 2001), IMM-5527-00, wherein he said at par. 65:
[65] That Mrs. Zhao wanted a child is insufficient to meet the statutory test of a genuine relationship. That she wanted a child in her home concerns her motivation to enter into an adoption, but it does not establish that a genuine relationship existed.
[19] I agree that merely wanting a child "does not establish that a genuine relationship existed". It does, however, show an intention to create such a relationship through adoption.
Disposition
[20] Consequently, this matter is returned to the Appeal Division to be decided in accordance with these reasons.
[21] Counsel for the respondent has submitted a question of general importance to be certified. Since it appears there is no previous decision of this Court directly on point, it is worthy of certification. The question reads as follows:
In section 2.1 of the Immigration Regulations, does the term "genuine relationship of parent and child" refer to the current state of a relationship between an adoptive parent and child when assessed by a visa officer or does it reflect the future state of that relationship?
OTTAWA, Ontario
September 25, 2001
Judge