Date: 20000608
Docket: IMM-3401-99
BETWEEN:
RISHPAL SINGH KHANGURA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O"KEEFE J.
[1] This is an application pursuant to paragraph 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act") for judicial review of the decision of the Appeal Division of the Immigration and Refugee Board ("Appeal Division") dated June 18, 1999, wherein the Appeal Division determined that the refusals of the sponsored applications for permanent residence of the applicant"s adopted children were valid in law.
Background
[2] The applicant was landed in Canada on December 2, 1990. In 1993, he sponsored the application of his fiancée, whom he later married.
[3] The applicant"s brother and his wife had two children, a son named Amritpal Singh Khangura, born November 9, 1982 in India, and a daughter, Annudeep Kaur Khangura, born May 20, 1990 in India.
[4] The applicant and his wife adopted these two children of his older brother, his nephew and niece, in an adoption ceremony that took place in India on December 12, 1993. An adoption deed was made on December 20, 1993. The adoptive parents were not present for the adoption and the applicant"s mother acted on his behalf at the adoption ceremony.
[5] The children remained in India and resided in part of the family compound with their grandmother (the applicant"s mother), while their natural parents resided in the other part of the family compound. This was the information provided to the visa officer, however, at the hearing before the Appeal Division, the children, their natural parents and Jaswant Kaur Khangura (the grandmother), all testified that the natural parents had moved 10 years earlier to a home a kilometer away.
[6] The applicant and his wife had no children of their own prior to the application being made to sponsor his brother"s children.
[7] The applicant and his wife completed sponsorship applications for their adopted children on January 18, 1994 and the applications for the permanent residency of the children were received in New Delhi in August and September, 1994.
[8] The applicant testified that he first started to discuss adoption of the children immediately after the marriage while his wife stated that the discussions with respect to adoption did not commence until after her return to Canada.
[9] The applicant sent gifts and money to the children and supported their education.
[10] The adoptive father visited the children once and the adoptive mother visited the children twice. Telephone calls were made and letters were sent to the children.
Issue
| [11] Did the Appeal Division err in law or in fact in not allowing the appeal from the decision of the visa officer? |
Law
| [12] Subsection 2(1) of the Immigration Regulations, 1978 states: |
| "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;
"son" means, with respect to a person, a male
(a) who is the issue of that person and who has not been adopted by that person, or
(b) who has been adopted by that person before having attained 19 years of age;
"daughter" means, with respect to a person, a female
(a) who is the issue of that person and who has not been adopted by another person, or
(b) who has been adopted by that person before having attained 19 years of age;
"member of the family class", with respect to any sponsor, means
. . .
(b) the sponsor's dependent son or dependent daughter,
|
"adopté" Personne adoptée conformément aux lois d'une province ou d'un pays étranger ou de toute subdivision politique de celui-ci, dont 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.
"fils" désigne, par rapport à une personne, une personne du sexe masculin
a) descendant de cette personne et qui n'a pas été adoptée par une autre personne, ou
b) qui a été adoptée par cette personne avant l'âge de 19 ans.
"fille" désigne, par rapport à une personne, une personne du sexe féminin
a) descendant de cette personne et qui n'a pas été adoptée par une autre personne, ou
b) qui a été adoptée par cette personne avant l'âge de 19 ans.
"parent" À l'égard d'un répondant, l'une des personnes suivantes:
. . .
b) un fils à sa charge ou une fille à sa charge;
|
| [13] The Hindu Adoptions and Maintenance Act, 1956 (the "Adoptions Act") states in |
| 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. |
11. In every adoption, the following conditions must be complied with:
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth (or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption.
Analysis and Decision
| [14] The applicant argued that the Appeal Division misinterpreted the provisions of the |
Adoptions Act by its failure to consider the only jurisprudence on the Indian law before it, which was:
As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring the property to comparative strangers, or more remote relations, it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth.
| [15] He further states that the Appeal Division instead used as its criteria for intent to |
transfer the answer to the question whether the ties had been severed from the natural parents. He further argued that the Appeal Division had asked itself the wrong question by asking, "Had the ties been severed between the adoptive children and the natural parents?"
| [16] The respondent argued that the Appeal Division did not err in law or fact in |
determining the adoption of the children did not meet the requirements of subsection 11(vi) of the Adoptions Act. The respondent also argued that the Appeal Division properly interpreted and applied the law when it found that no genuine relationship of parent and child existed.
| [17] Mr. Justice Gibson of this Court in Gill (B.S.) v. Canada (Minister of Citizenship |
and Immigration) (1996) 122 F.T.R. 251 (F.C.T.D.) at pages 255-56 stated:
In Canada (Minister of Citizenship and Immigration) v. Patel (1995), 90 F.T.R. 234 (T.D.) Mr. Justice Cullen stated:
| The issue is not whether there has been a valid adoption in accordance with the laws of India. Rather, the Appeal Division must decide whether the adoption, in accordance with the laws of India, is properly recognized under the Immigration Act and Regulations. |
With great respect, I believe that both questions are proper issues for determination. I read the words of Mr. Justice Hugessen as requiring an examination of both whether there has been a valid adoption in accordance with the laws of India, and, then if the answer to that question is positive, whether the adoption in accordance with the laws of India, has resulted in the creation of a parent and child relationship within the terms of the Immigration Act and Regulations.
In Canada (Minister of Citizenship and Immigration) v. Edrada (1996), 108 F.T.R. 60 (T.D.) Mr. Justice MacKay concluded:
| In my view, the tribunal had a duty under then s. 2(1) of the Regulations, having found the foreign legal requirements for adoption were met, to determine whether the relationship of parent and child has been established between the adopting parent and the adoptee. The definition of "adopted" in 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. |
I concur with the foregoing statement and with the concept of a "two step process".
This decision was upheld by the Federal Court of Appeal in Gill (B.S.) v. Canada (Minister of Citizenship and Immigration) (1998) 229 N.R. 267 (F.C.A.).
| [18] A review of the decision of the Appeal Division shows that the Appeal Division |
addressed the issue of whether the foreign legal requirements for adoption were met and it concluded that they were not. In reaching this conclusion, the Appeal Division concluded that there had been no separation of the children from their natural parents as the children continued to live in the same compound as their natural parents and grandmother. In reaching this conclusion, the panel did not accept as credible, the evidence offered on appeal, that the natural parents had moved to a home a kilometer away from the compound 10 years or so earlier. The reason given by the Appeal Division was a valid and a correct reason and is not reviewable by this Court.
| [19] As my finding above means that the application for judicial review cannot |
succeed as the applicant cannot meet the first stage of the test required when applying subsection 2(1) of the Immigration Regulations, supra, to determine if the children have been adopted within the meaning of the Canadian law contained in the Regulations. In other words, the children were not adopted "in accordance with the laws of a province or of a country other than Canada . . .".
| [20] However, the decision of the Appeal Division also dealt with the second part of |
the process used when determining whether the children have been adopted for the purposes of Canadian law (Immigration Act, subsection 2(1)) i.e. "Whether the adoption creates a genuine relationship of parent and child". The decision of the Appeal Division deals with this issue when it addressed the applicant providing money for the children"s education and for their maintenance and that it also addressed the great interest of the applicant and his wife in the education of the children. The Appeal Division found the conduct to be that of a loving uncle and concluded that no genuine relationship of parent and child existed between the applicant and the children. This finding of the Appeal Division is supported by the evidence and is correct in the circumstances of this case.
| [21] The appropriate standard of review of the Appeal Division"s decision is one of |
correctness when it is dealing with a question of law and the standard of review when dealing with questions of mixed fact and law is reasonableness simpliciter. Findings of fact made by the Appeal Division should not be overturned unless they are clearly wrong.
| [22] The application for judicial review is dismissed. Counsel for the parties will be |
provided with an opportunity to make a request for certification of a serious question of general importance. Counsel for the applicant shall file written representations, if any, on or before June 14, 2000 concerning the certification of a serious question. Counsel for the respondent shall file a written response, if any, on or before June 20, 2000.
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
June 8, 2000
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