Date: 20000913
Docket: IMM-1162-00
Between:
HARDIAL SINGH SAMRA,
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION ,
Respondent
REASONS FOR ORDER
Muldoon, J.
[1] This is an application for leave pursuant to subsection 82.1(4) of the Immigration Act R.S.C. 1985, Chap.I-2. If leave be granted, the applicant wishes to commence an application for judicial review seeking an order quashing the decision of the Immigration Appeal Division (the tribunal) to dismiss the appeal against the refusal of the sponsored application for permanent residence, and an order remitting the matter back for a redetermination by a differently constituted panel.
Facts
[2] The appellant sponsor allegedly adopted the applicants, Baljhit Singh Samra and Mandeep Kaur Samra, (his biological niece and nephew) in 1995, with the consent of their natural parents who remain alive and in contact with the applicants. Both the immigration officer and the Appeal Division refused the applications for permanent residence on the grounds that the applicants had not been adopted in accordance with the Immigration Regulations, 1978 SOR/78-172, as amended and Indian law and, thus, did not constitute members of the family class. Therefore, the Appeal Division found that the applicants are not members of the "family class" and dismissed this appeal "for lack of jurisdiction".
[3] The decisions were reached based on: whether the requisite "giving and taking" ceremony took place in accordance with Indian law; whether the applicants had broken all ties with their biological families and transferred all affections to their "adoptive" father; and, whether a true parent-child relationship existed between the sponsor and the applicants.
Legislation
[4] Sections 70, 71 and 77 of the Immigration Act outline the means by which an appeal can be made to the Immigration Appeal Division. Section 70 includes
| 1) appeals by permanent residents and persons in possession of returning resident permits where a removal order or conditional removal order has been made against them; and |
| 2) where a removal order or conditional order has been issued against an individual who has been determined to be a convention refugee or who is in possession of a valid immigrant visa. |
Both of the above grounds for appeal indicate that an appeal to the tribunal must be based on either one or both of the following:
| 1) On a ground of appeal that involves a question of law, fact or mixed law and fact; and, |
| 2) on the ground that, having regard to the existence of compassionate or humanitarian considerations, the person should not be removed from Canada. |
[5] Section 71 addresses an appeal by the minister.
| The Minister may appeal to the Appeal Division from a decision by an adjudicator in the course of an inquiry on any ground of appeal that involves a question of law or fact or mixed law and fact. |
[6] Section 77(1) (where sponsored applications for landing may be refused) states:
| Where a person has sponsored an application for landing made by a member of the family class, an immigration officer or a visa officer, as the case may be, may refuse to approve the application on the grounds that |
| (a) the person who sponsored the application does not meet the requirements of the regulations respecting persons who sponsor applications for landing, or |
| (b) the member of the family class does not meet the requirements of this Act or the regulations, |
| and the person who sponsored the application shall be informed of the reasons for the refusal. |
Again, the appeal may be made on grounds of law, fact or mixed law and fact, and on the grounds that there exist compassionate or humanitarian considerations that warrant the granting of special relief.
[7] Finally, to qualify as an "adopted" dependent, the applicants must conform with the definition provided in the Regulations.
| 2. (1) In these Regulations, |
| "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 |
Thus, to fall within the jurisdiction of the Appeal Division, all appeals must be made from the decision of an immigration officer or visa officer on issues of removal orders, conditional removal orders or the admission of applicants as members of the family class.
JURISPRUDENCE
[8] Recent case-law suggests that where an applicant falls outside the definition of "family class," the tribunal is correct in holding that it does not have the jurisdiction to make a determination regarding the application for landing.
With regard to whether an "adopted" child qualifies as a member of the family class, the Federal Court has made numerous considerations. In Canada (Minister of Citizenship & Immigration) v. Edrada (January 26, 1995, IMM-6059-93), McKay, J. comments:
| The definition of "adopted" in s-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 ... |
| ... "where the adoption created a relationship of parent and child". That phrase ... must be given meaning. In order to establish an adoption for the purposes of that definition, it is necessary to demonstrate the existence of a relationship of parent and child, in addition to compliance with applicable adoption laws. |
[9] Gibson, J., in Gill v. The Minister of Citizenship and Immigration (September 26, 1996, IMM-760-96), made the further observation that there must be
| 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. |
[10] Both of the aforementioned decisions were applied in the case of Dhaliwal v. Canada (Minister of Citizenship and Immigration) (October 23, 1996, IMM-1127-96). The facts in that case are almost identical to the issue at hand, being that the appellant attempted to sponsor his niece in her application for permanent residence after allegedly adopting the girl at the age of 12. Based on the available evidence, the tribunal found that no genuine parent-child relationship existed between the two parties. Thus, the applicant was not a member of the family class as defined in the Immigration Act and Regulations. This determination was upheld by Rouleau, J. in dismissing the application for leave.
[11] Once a determination as to membership in the family class has been made, the jurisdictional issue of the Immigration Appeal Division must be considered. As the Appeal Division can hear only those family class appeals where the applicants are found to be within the provided definition, if the applicant is determined to be outside that category, the Appeal Division has no jurisdiction to make a determination regarding the application for landing. This is demonstrated in the decisions of Blais, J. in Chattat v. Canada (Minister of Citizenship and Immigration) (May 26, 1999, IMM-5220-98) and Reed, J. in Chow v. Canada (Minister of Citizenship and Immigration) (July 29, 1998, IMM-5200-97).
CONCLUSION
[12] With regard to the specifics of this matter, the appeal was dismissed as the applicants were found not to be members of the family class. Based on this determination, the Appeal Division lacks the requisite jurisdiction to make a determination on the application. Thus, the appeal of the sponsor was dismissed, and because the reasons of the Appeal Division are quite correct, leave should not be granted, a result which is in accordance with the existing jurisprudence. This application for leave is dismissed.
Ottawa, Ontario
September 13, 2000
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