[1] At issue in this application for judicial review is whether the appeal division of the Immigration and Refugee Board ("Board") committed a reviewable error when it determined that the respondents had validly adopted Yamini Sharma in India pursuant to the Hindu Adoptions and Maintenance Act, 1956 ("HAMA").
[2] The Board properly applied the provisions of the former immigration act and regulations to the appeal. Similarly, this application is to be determined in accordance with the provisions of the former act and regulations. See: section 192 Immigration and Refugee Protection Act, S.C. 2001, c. 27 and subsection 348(6) Immigration and Refugee Protection Regulations, SOR/2002-227 ("current Regulations").
[3] Under section 2 of the Immigration Regulations, 1978, SOR/78-172 the term "adopted'" was defined to mean "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". The central issue for the Board on the facts of this case was whether the adoption was in accordance with the laws of India and, more specifically, whether the adoption was in accordance with the HAMA because only the child's biological mother, Kiran Sharma, consented to the adoption. The child's father did not provide his consent to the adoption.
[4] The relevant provisions of the HAMA are not in dispute and are as follows:
5(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.
6 Requisites of a valid adoption. -
No adoption shall be valid unless:
...(ii) the person giving in adoption has the capacity to do so;
9 Persons capable of giving in adoption -
(1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
(2) Subject to the provisions of [sub-section (3) and subsection (4)], the father, if alive, shall alone have the right to give in adoption...
(3) The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
(4) Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself. [underlining added]
[5] The Board's reasons on the point as are follows:
[29] There are two legal opinions opining that the adoption is legally valid. The first was obtained by Mrs. Sharma in 2001 after she was advised of the refusal. Both opinions provided are from advocates in India, one from Agra, and the 2003 opinion from an advocate in Aligarh, both of which opine that HAMA is met and the adoption is formally valid.
[30] Based on these opinions, even while it is the natural father's right to give his child in adoption, I am satisfied that this right is not absolute. Section 9 of HAMA describes persons capable of giving in adoption to be the father and mother or guardian of the child, but also provides for exceptions. I find there is credible evidence that full legal custody and guardianship lay exclusively with the biological mother.
[31] In this case, I find, with the evidence of two legal opinions, that the natural mother has capacity to give the Applicant in adoption.
[6] As I read the decision of the Board, the Board found that under the HAMA the natural father does not enjoy an absolute right to consent to the adoption of his child. The Board found that where the biological mother enjoys exclusive legal custody and guardianship she may consent to the adoption. On the basis of the legal opinions before it, the Board therefore concluded that Yamini's biological mother had the capacity to consent to Yamini's adoption.
[7] Foreign law is a question of fact (see, for example, Canada (Minister of Citizenship and Immigration) v. Saini, [2002] 1 F.C. 200 (C.A.) at paragraph 26). Therefore, the Board's conclusions that under the HAMA a father does not have an absolute right to consent to the adoption of his child, and that a biological mother who enjoys exclusive legal custody and guardianship has the capacity to consent to the adoption of a child, are findings of fact. As such, they are entitled to considerable deference. This Court ought only to interfere with the Board's findings of fact where such findings are made in a perverse or capricious manner or without regard for the material before the Board.
[8] I therefore turn to consider whether the Board's key finding that a biological mother who enjoys exclusive legal custody and guardianship has the capacity to consent to the adoption of a child was properly supported by evidence before the Board.
[9] The evidence cited by the Board in support of its finding were the two legal opinions provided by lawyers in India. The first opinion dealt with three issues, one of which was described to be whether "the father alone is competent to give the child in adoption". In material part, in its entirety the first opinion stated:
POINT No 2 : Persons capable of giving in adoption have been described in Section 9 of The Hindu Adoption and Maintenance Act 1956. Father or mother or the guardian of a child shall have the capacity to give the child in adoption. In the present case the father abandoned the child and her mother. The marriage has been dissolved by decree dated 23.7.1987 passed in Matrimonial Petition Number 378/1986: Balendra Sharma V/S Smt Kiran. Father never cared [for] the child. Child was brought up and educated by mother alone even prior to decree of dissolution. The same is clear from the School records. The father neither met nor has been heard of for seven years from the date of decree afore said, it would be presumed that he was not alive at the relevant time of adoption. The mother being the Guardian having the custody of child, in view of Section 4 of the Guardians and Wards Act and Section 10 of Hindu Adoption and Maintenance Act. The child always remained in the custody of her natural mother upto the time of adoption and mother is entitled to give transfer [of] the child as required under Section 11 of Hindu Adoption and Maintenance Act 1956.
[10] On its face, the opinion was thus premised on the fact that the biological father, not having been heard of for a number of years, would be presumed to be dead. This would be consistent with subsection 9(3) of the HAMA which allows a mother to consent to an adoption if the father is dead. However, the record before the Board included the notes of the interview conducted of Kiran Sharma, Yamini's mother, by a visa officer. During this interview Kiran Sharma advised that Yamini's father had remarried, had children and was "living with his family". In my respectful view, it was perverse of the Board to rely on the first opinion without at least considering whether the legal presumption of death which supported the opinion was rebutted by the fact that the father was acknowledged to be alive, and so able to consent to his child's adoption. In this regard, the Board has previously held in other cases that the presumption of death is a procedural matter and so governed by Canadian law. See: Gill v. Canada (Minister of Employment and Immigration), [1991] I.A.D.D. No. 40; Parhar v. Canada (Minister of Employment and Immigration), [1992] I.A.D.D. No. 221. Under Canadian law the presumption of death is rebuttable and would be rebutted by evidence that the person in question was alive.
[11] The second opinion relied upon by the Board was from the lawyer who had been retained to carry out the adoption. This opinion boldly asserted that the adoption was carried out according to the HAMA, and went on to state that the lawyer "had seen the divorce papers; and Yamini Sharma's custody paper that was in the name of Kiran Sharma was also examined by me". This opinion does not provide evidence as to how subsection 9(3) of the HAMA was complied with, and in light of the specific wording found in subsection 9(3) of the HAMA the opinion falls short of providing evidence to support the Board's finding that a mother who enjoys exclusive legal custody and guardianship has the capacity to consent to the adoption of a child where the biological father is alive and has not consented to the adoption.
[12] It follows, in my view, that the Board's finding that a mother who has sole custody and guardianship rights may consent to an adoption was not properly grounded in the evidence. It further follows that the decision must be set aside and the matter remitted for redetermination before a differently constituted Board.
[13] Before parting with this application, I note that the redetermination will be governed by the provisions of the former legislation (see: subsection 350(5) of the current Regulations). Such a hearing would appear to be a de novo proceeding in which the Board is able to consider matters not before the visa officer. See: Pabla v. Canada (Minister of Citizenship and Immigration), [2000] 98 F.T.R. 112 (T.D.), citing Rattan v. Canada (Minister of Employment and Immigration) (1995), 73 F.T.R. 195 (T.D.). In that circumstance, the respondents would be well advised to consider their ability to file new evidence before the Board and, if satisfied of that right, to consider the availability of a more cogent legal opinion to assist the Board.
[14] Neither party proposed certification of a question and I am satisfied that no question of general importance arises on this record.
ORDER
[15] THE COURT THEREFORE ORDERS THAT:
1. The application for judicial review is allowed.
2. The decision of the Appeal Division of the Immigration and Refugee Board dated March 27, 2003 is hereby set aside and the matter is remitted for redetermination before a differently constituted panel.
"Eleanor R. Dawson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3132-03
STYLE OF CAUSE: The Minister of Citizenship of Immigration v. Satish Sharma, Maya Sharma
PLACE OF HEARING: Regina, Saskatchewan
DATE OF HEARING: June 17, 2004
REASONS FOR ORDER AND ORDER BY
THE HONOURABLE MADAM JUSTICE DAWSON
DATED: August 5, 2004
APPEARANCES:
Ms. Glennys Bambridge FOR THE APPLICANT
Mr. Henri Chabanole FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR THE APPLICANT
Merchant Law Group
Regina, Saskatchewan FOR THE RESPONDENTS
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