Date: 20061110
Docket: IMM-120-06
Citation: 2006 FC 1362
BETWEEN:
AMARJIT KAUR DHINDSA
RAJWINDERPAL KAUR DHINDSA
LAKHWINDERPAL SINGH DHINDSA
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing of an application for judicial review of a decision
of an Immigration Officer (the “Officer”) at the Canadian High Commission in
New Delhi, India whereby the Officer, following an interview with Amarjit Kaur
Dhindsa (the “principal Applicant”) and Rajwinderpal Kaur Dhindsa, who was
alleged to be the adopted daughter of the principal Applicant, deleted
Rajwinderpal Kaur Dhindsa from the principal Applicant’s sponsored application
for permanent residence in Canada. The decision is dated the 19th
of October, 2005.
[2]
Lakhwinderpal
Singh Dhindsa is the son of the principal Applicant and is her sponsor. He was
earlier found eligible to sponsor the principal Applicant.
[3]
Early
on in the hearing of this application for judicial review, counsel for the
Respondent objected to the inclusion of Lakhwinderpal Singh Dhindsa as an
Applicant. The objection was raised in the written materials filed on behalf
of the Respondent. No position was taken on behalf of the Applicants in written
materials or at the hearing of the application. I am satisfied that the
objection is well taken. My Order disposing of this application for judicial
review will delete Lakhwinderpal Singh Dhindsa as an Applicant.
BACKGROUND
[4]
The
principal Applicant alleges that she and her late husband took Rajwinderpal
Kaur Dhindsa, born the 15th of January, 1984, in adoption in 1993 in
accordance with The Hindu Adoption and Maintenance Act, 1956. The
principal Applicant further alleges that she and her husband observed all
necessary rites and rituals essential for a Hindu adoption. Rajwinderpal Kaur
Dhindsa’s biological father and mother allegedly gave her in adoption. No
adoption deed was registered at the time of the adoption and it would appear to
be not in dispute that no such registration was required to perfect the alleged
adoption.
[5]
The
principal Applicant’s husband died on the 9th of October, 1996. The
principal Applicant alleges that, in order to protect the inheritance rights of
her allegedly adopted daughter, she then determined to register the adoption
and an adoption deed was in fact registered on the 1st of January,
1997.
[6]
From
before the date of the alleged adoption, Rajwinderpal Kaur Dhindsa and her
biological father and mother lived in the same home as the principal Applicant
and her husband. They continued to do so until Rajwinderpal Kaur Dhindsa’s biological
parents moved out of the home in 1995 or 1996.
THE DECISION UNDER
REVIEW
[7]
The
substance of the decision under review is in the following terms:
…
According to
the Deed of Adoption dated 10 Jan 1997 provided to our office, you adopted,
Rajwinderpal Kaur, in 1993 as per the Hindu rites and rituals. During the
interview both you, and Rajwinder Kaur stated that she was adopted in 1993.
During the interview on 18 Oct 2005 you stated:
“ In 1995
they (Balvir and Puran Singh) shifted to Maler Kotla, and my husband expired in
1996, after that I decided that tomorrow my son or my daughter in-law should
not have any objections so I went to the courts and got the papers drafted for
the adoption.”
You also
stated that you, your family and your sister (Rajwinderpal Kaur’s mother), and
her family lived together until 1996.
I am not
satisfied that a physical giving and taking [in] connection with your claimed
adoption, as required by section 11(vi) of the Adoptions Act, was performed IN
1993. I am also not satisfied that the adoption created a genuine parent-child
relationship as her real parents were living with you at the time of the
adoption.
Accordingly
Rajwinderpal Kaur is not a member of the family class described in section
117(1)(b) of the Immigration and Refugee Protection Regulations.
Given the
foregoing, I conclude that Rajwinderpal Kaur is not a “dependent child” as
defined in section 2 of the Immigration and Refugee Protection Regulations.
Since
Rajwinderpal Kaur is not a dependent child according to the Immigration and
Refugee Protection Regulations, I have deleted her from your application.
…
THE LEGISLATIVE AND
REGULATORY SCHEME
[8]
The
provisions of law relevant to this application for judicial review are
extensive and reasonably complex. They are set out in full in a schedule to
these reasons.
THE ISSUES
[9]
In
his Memorandum of Fact and Law, counsel for the Applicants identified three
issues: first, whether, on the facts before the Officer, the Officer erred in
law in that he deleted Rajwinderpal Kaur Dhindsa from her alleged adoptive
mother’s, the principal Applicant’s, application, concluding that she was not
the adopted daughter of the principal Applicant; secondly, whether the deletion
of Rajwinderpal Kaur Dhindsa from the principal Applicant’s application and
thus the rejection of Rajwinderpal Kaur Dhindsa’s application to immigrate by
the Officer has the effect of depriving the sponsor of a right to appeal under
subsection 63(1) of the Immigration and Refugee Protection Act
(the “Act”)and thus ousts the Immigration Appeal Division’s jurisdiction
to determine whether Rajwinderpal Kaur Dhindsa was a member of the family class
and its humanitarian and compassionate jurisdiction; and finally whether, in
all of the circumstances of this matter, the Officer’s decision was patently
unreasonable.
[10]
Counsel
for the Respondent essentially only restates the issues but reduces them to
two: first, whether the Officer erred in a reviewable manner in finding that
Rajwinderpal Kaur Dhindsa was not a dependent child of the principal Applicant;
and secondly, whether the Officer erred in a reviewable manner in informing the
Applicants that, since Rajwinderpal Kaur Dhindsa was not a member of the family
class, the sponsor of the principal Applicant, Lakhwinderpal Singh Dhindsa, had
no right of appeal to the Immigration Appeal Division or, put another way,
does subsection 63(1) of the Act have any application with respect to
this matter.
[11]
I
prefer the Respondent’s statement of the issues. As in all applications for
judicial review such as this, the issue of standard of review also arises.
ANALYSIS
Standard of Review
[12]
In
Liu v. Canada (Minister of Citizenship and Immigration), my colleague
Justice Snider wrote at paragraph 14:
An application to be
admitted to Canada as an
immigrant involves a discretionary decision on the part of the visa officer,
who is required to make that decision on the basis of specified statutory
criteria. The standard of review to be applied to a visa officer’s decision
with respect to a finding of fact is patent unreasonableness. …
[13]
I
am satisfied on the facts of this matter that Rajwinderpal Kaur Dhindsa,
through her inclusion in the principal Applicant’s sponsored application to
come to Canada, as an alleged dependant child of the principal Applicant and
therefore as a member of the family class, applied to be admitted to Canada and
that the decision to delete her name from the principal Applicant’s application
in effect amounted to rejection of her application. Thus, the foregoing
quotation is directly applicable and I find no basis on the facts of this
matter to vary from my colleague’s conclusion that the appropriate standard of
review on the first issue question before the Court is, in general terms,
patent unreasonableness.
[14]
The
foregoing being said, the basis of the Officer’s conclusion in that regard
involved application of the facts underlying this matter to the interpretation
of the Hindu Adoptions and Maintenance Act, 1956. In Canada (Minister of
Citizenship and Immigration) v. Sharma, Justice
Wetston wrote at paragraph 56:
The content of the
foreign law is a question of fact. How the foreign law is applied is a question
of law.
Against the foregoing, I am satisfied that
the analysis of the Officer leading to the conclusion that the principal
Applicant’s alleged adoption of Rajwinderpal Kaur Dhindsa was not valid should
be reviewed on a standard of review of reasonableness simplicter.
[15]
The
application of the conclusion that Rajwinderpal Kaur Dhindsa is not a dependent
child in relation to the principal Applicant and therefore not a member of the
family class to subsection 63(1) of the Act is, equally, a matter of
application of the particular facts on this application for judicial review to
the interpretation of subsection 63(1) and should, therefore, be reviewed on a
standard of review of reasonableness simpliciter.
[16]
I
have arrived at the foregoing conclusions after taking into account all of the
relevant factors underlying a pragmatic and functional analysis.
The Officer’s finding
that Rajwinderpal Kaur Dhindsa is not a dependent child of the principal
Applicant
[17]
Pursuant
to paragraph 11(vi) of the Hindu Adoptions and Maintenance Act, 1956, to
be valid, the adoption of Rajwinderpal Kaur Dhindsa by the principal Applicant
and her husband, in 1993, had to involve the actual giving of the child by her
biological parents and the taking of the child in adoption by the principal Applicant
and her husband, with intent to transfer the child from the family of its
birth.
[18]
As
noted earlier in these reasons, the Officer wrote in her reasons for deleting
Rajwinderpal Kaur Dhindsa from the principal Applicant’s sponsored application
for immigration to Canada:
I am not satisfied that
a physical giving and taking [in] connection with your claimed adoption, as
required by section 11(vi) of the Adoptions Act, was performed IN 1993. I am
also not satisfied that the adoption created a genuine parent-child
relationship as her real parents were living with you at the time of the
adoption.
[19]
Counsel
for the Applicants urged that there was no evidence before the Officer to
support the Officer’s concern that there was no actual giving and taking in
adoption with intent to transfer Rajwinderpal Kaur Dhindsa from her biological
parents to the principal Applicant and her husband. Rather, counsel notes,
both the principal Applicant and Rajwinderpal Kaur Dhindsa, at their interview
with the Officer, stated that there had been a giving and taking in 1993 in
accordance with Hindu rites and rituals and that that oral assurance was
supported by the following paragraph contained in the principal Applicant’s
affidavit filed herein:
3. My late husband,
Mangal Singh and I took the Applicant, Rajwinderpal Kaur Dhindsa born January
15, 1984, in adoption in 1993 in accordance with the Hindu Adoption and
Maintenance Act observing all necessary rites and ceremonies essential to a
Hindu adoption.
[20]
Counsel
urged that the foregoing was confirmed by the registration of an adoption deed,
albeit some years later, and that the presumptions set out in sections 12 and
16 of the Hindu Adoptions and Maintenance Act, 1956 would appear to have
been ignored by the Officer.
[21]
I
reject the submission of counsel for the Applicant that there was “no evidentiary
basis” for the Officer’s concerns and conclusion regarding what took place in
1993. First, there was no evidence whatsoever before the Officer as to a
“giving” by Rajwinderpal Kaur Dhindsa’s biological parents. Secondly,
Rajwinderpal Kaur Dhindsa’s biological parents continued to live in the same
home with the principal Applicant, her husband, her son and Rajwinderpal Kaur
Dhindsa until some time in 1995. There was no evidence before the Officer as
to the relationship between Rajwinderpal Kaur Dhindsa and her biological
parents on the one hand and her purported adoptive parents on the other during
the time between the purported adoption and the time when the biological
parents left the common home.
[22]
Against
the totality of the evidence before the Officer, I am satisfied that it was
reasonably open to the Officer to conclude that the giving and taking in
adoption required by paragraph 11(vi) of the Hindu Adoptions and Maintenance
Act, 1956 had not been established to her satisfaction. The onus was on
the principal Applicant. She simply failed, without explanation, to meet that
onus.
[23]
With
regard to the Officer’s expression of concern regarding the creation of a
“genuine” parent-child relationship, counsel for the Applicant provided
essentially no submissions. By contrast, counsel for the Respondent urged
that, on the evidence before the Officer, it was open for the Officer to
conclude that there was insufficient evidence to show that the adoption was
genuine.
[24]
The
concept of “genuineness” is reflected in section 4 of the Immigration and
Refugee Protection Regulations (the “Regulations”). In
order for an allegedly adopted child not to be
considered an adopted child under that provision,
there must be both a finding of lack of genuineness and also a finding that the
adoption was “…entered into primarily for the purpose of acquiring any status
or privilege under the [Immigration and Refugee Protection] Act.” I conclude
that there was no evidence before the Officer or the Court to support a finding
that the purported adoption of Rajwinderpal Kaur Dhindsa was entered into
primarily for the purpose of acquiring any status or privilege under the Act.
Certainly, counsel for the parties referred me to none.
[25]
Based
on the foregoing brief analysis, I conclude that the Officer’s determination
that the purported adoption of Rajwinderpal Kaur Dhindsa by the principal
Applicant and her husband did not create a “genuine” parent-child relationship
was reasonably open to her but that that determination was of no consequence in
the absence of a finding that the purported adoption was entered into for the
purpose of acquiring any status or privilege under the Act.
[26]
The
Officer’s conclusion regarding “validity”, which I have found to be reasonably
open, was itself sufficient to be dispositive of the first issue on this application
against the Applicants.
The Deletion of
Rajwinderpal Kaur Dhindsa from the Principal Applicant’s Application for Immigration
to Canada
[27]
Counsel
for the Applicants urged that the Officer’s action in deleting Rajwinderpal
Kaur Dhindsa’s name from the principal Applicant’s application deprived the
principal Applicant or her sponsor of a right to appeal under subsection 63(1)
of the Act and, thus, ousted the jurisdiction of the Immigration Appeal
Division of the Immigration and Refugee Board to determine whether or not, on
the facts of this matter, Rajwinderpal Kaur Dhindsa was in fact a member of the
family class, that the principal Applicant is an appropriate “sponsor” and
therefore whether humanitarian and compassionate considerations should entitle
Rajwinderpal Kaur Dhindsa to immigrate to Canada.
[28]
For
ease of reference, subsection 63(1) of the Act, which is quoted in the Schedule
to these reasons, is repeated here.
|
63. (1) A person who has filed in the prescribed manner an
application to sponsor a foreign national as a member of the family class may
appeal to the Immigration Appeal Division against a decision not to issue the
foreign national a permanent resident visa.
|
63. (1)
Quiconque a déposé, conformément au règlement, une demande de parrainage au
titre du regroupement familial peut interjeter appel du refus de délivrer le
visa de résident permanent.
|
[29]
Section
65 preserves the humanitarian and compassionate considerations jurisdiction of
the Immigration Appeal Division in the limited circumstances outlined therein.
Section 65 of the Act is also reproduced in the Schedule to these
reasons.
[30]
Counsel
for the Applicants urged that deletion of Rajwinderpal Kaur Dhindsa from the
principal Applicant’s application, and thus, impliedly, the rejection of
Rajwinderpal Kaur Dhindsa’s application, derived the sponsor, that is to say
the principal Applicant, or, and this is to this judge unclear, the sponsor of
the principal Applicant, and I interpret the Applicant’s materials to imply the
former and I read subsection 63(1) to identify the latter, of a right of appeal
to the Immigration Appeal Division and, thus, potentially at least, of a right
to have humanitarian and compassionate considerations in respect of
Rajwinderpal Kaur Dhindsa taken into account.
[31]
Counsel
urged that the deletion of Rajwinderpal Kaur Dhindsa from the principal
Applicant’s application amounted to an “arbitrary action” contrary to the
principles of natural justice and fairness, and that the appropriate course of
action that should have been adopted by the Officer was to simply deny the
principal Applicant’s sponsored application for immigration to Canada, thus rejecting
the principal Applicant’s application on the basis of the Officer’s conclusion
that the inclusion of Rajwinderpal Kaur Dhindsa in the application rendered the
whole of the application unsupportable. The result of such action would, in
the submission of counsel, leave open to the “sponsor” the full range of appeal
rights to the Immigration Appeal Division including an appeal from the
Officer’s conclusion that Rajwinderpal Kaur Dhindsa was not a proper party to
the principal Applicant’s application.
[32]
Counsel
for the Respondent urged that the Officer directed his or her mind to the
proper questions before him or her and that the decision to delete Rajwinderpal
Kaur Dhindsa was open to her, thus leaving the application of the sponsored principal
Applicant alone, open to be determined on its own merits.
[33]
Neither
counsel referred the Court to statutory, regulatory or judicial authority on
this issue. I am satisfied that no such authority governs my decision in this
regard.
[34]
Against
the scheme of the Act and the Regulations read as a whole, I am
satisfied that the course followed by the Officer was open to her. An
individual purporting to be an adopted child, such as Rajwinderpal Kaur
Dhindsa, will not be a proper member of the family class capable of being
included in a putative parent’s application for immigration to Canada, if the
purported adoption is found not to be in accordance with law. Such was the
case here, and I have already found in these reasons that the conclusion that
Rajwinderpal Kaur Dhindsa was not an adopted child of the principal Applicant
in accordance with law was open to the Officer.
[35]
In
the circumstances, I can find no basis flowing from the rejection of the
qualifications of Rajwinderpal Kaur Dhindsa, to reject the application for
immigration to Canada, sponsored by her son, which sponsorship was
found to be valid, of the principal Applicant. Once again in the
circumstances, the Officer had no basis, based upon the rejection of
Rajwinderpal Kaur Dhindsa’s inclusion in the principal Applicant’s application,
to reject the principal Applicant’s own application. The well-foundedness of
that application turned on entirely different facts, not evaluated at the
moment of rejection of Rajwinderpal Kaur Dhindsa’s qualifications. Thus, the
only course reasonably open to the Officer was to delete Rajwinderpal Kaur
Dhindsa’s participation in the principal Applicant’s application and then to go
on from there to consider the principal Applicant’s application on its own
merits.
[36]
Based
upon the foregoing brief analysis, I find no basis in fact, mixed fact and law
or law, or indeed in fairness and equity, to overturn the Officer’s decision to
delete Rajwinderpal Kaur Dhindsa’s name from the principal Applicant’s
application for immigration to Canada.
[37]
The
foregoing conclusion results, as counsel for the Applicants submits, in a
narrowing of the jurisdiction of the Immigration Appeal Division and, indeed,
in the elimination of the jurisdiction of that tribunal to consider the merits
of the deletion. That being said, as evidenced by this application for leave
and for judicial review, this Court retains jurisdiction to consider the merits
of the deletion and to adjudicate on that decision. What is purported to be
lost is the jurisdiction of the Immigration Appeal Division, in the very
limited circumstances outlined in section 65 of the Act, to take into
account humanitarian and compassionate considerations flowing from the deletion
of Rajwinderpal Kaur Dhindsa’s name from the principal Applicant’s application.
Such a result would not flow if this Court, on judicial review, had determined
that in fact the Officer had erred in a reviewable manner in determining
Rajwinderpal Kaur Dhindsa not to be the adopted daughter of the principal
Applicant. Such is not the case. In the result, nothing is in fact lost.
CONCLUSION
[38]
For
the foregoing reasons, this application for judicial review will be dismissed.
CERTIFICATION OF A
QUESTION
[39]
At
the close of the hearing of this application for judicial review, counsel were
advised that the Court’s decision would be reserved. Counsel were also advised
that an opportunity would be provided for them to make submissions on
certification of a question. Counsel for the Applicant will have five (5) days
from the date of the reasons herein to file with the Court and serve on counsel
for the Respondent submissions on certification. Thereafter, counsel for the
Respondent will have five (5) days to serve and file responding submissions.
Once again thereafter, counsel for the Applicant will have three (3) days to
file and serve responding submissions. Only thereafter, or in the event of any
party failing to take advantage of the opportunity hereby provided, will the
Court’s Order issue.
“Frederick
E. Gibson”
Ottawa, Ontario
November
10, 2006
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