Date: 19990305
Docket: IMM-2364-98
BETWEEN:
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR DECISION
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of the
Appeal Division of the Immigration and Refugee Board wherein the Appeal Division determined that a ceremony in India in which the applicant and her husband purported to adopt a child was of such a nature that it was doubtful whether the "giving and taking ceremony" fulfilled the requirements of the Hindu Adoptions and Maintenance Act, 1995 and, if it did, it did not create a parent and child relationship. The decision under review is dated the 17th of April, 1998.
[2] At the close of the hearing, I dismissed the application and gave brief oral reasons. To comply with section 51 of the Federal Court Act, what follows is an edited version of my oral reasons.
[3] THE COURT: Counsel, no difficult question of law is before the Court in this matter and no jurisdictional issue or issue of natural justice or procedural fairness is raised. Rather -- and I think counsel agree -- this is a matter that turns largely on its facts, and the question, put at its simplest, that is before the Court today is whether the decision reached by the Appeal Division was reasonably open to it.
[4] As counsel for the respondent implied, the question is not whether he or counsel for the applicant or I, for that matter, would have reached the same decision on the same facts but rather whether the decision was reasonably open to the Appeal Division, and, of course, a decision that is based on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before the decision-maker is not reasonably open to the decision-maker.
[5] I will turn to the words of Justice Laskin, as he then was, in Woolaston v. The Minister of Manpower and Immigration,1 to which counsel for the respondent referred me, and to which counsel for the applicant also referred. Mr. Justice Laskin wrote:
I am unable to conclude that the Board ignored that evidence and thereby committed an error of law to be redressed in this Court. The fact that it was not mentioned in the Board"s reasons is not fatal to its decision. It was in the record to be weighed as to its reliability and cogency along with the other evidence in the case, and it was open to the Board to discount it or to disbelieve it.
[6] I will paraphrase those words on the basis of the material that is before me and on the basis of counsel"s submissions.
[7] Despite able argument on behalf of the applicant, I am unable to conclude that the Appeal Division ignored evidence, and I am equally unable to conclude that on the totality of the evidence that was before the Appeal Division, the decision was based on an erroneous finding of fact that was made in a perverse or capricious manner. Put another way, whatever decision I might have reached on the same evidence, I am satisfied that the decision that the Appeal Division reached was reasonably open to it.
[8] The fact that the Appeal Division did not mention in its reasons or in the analysis portion of its reasons all of the facts that were before it is not of itself fatal to its decision.
[9] I agree with counsel for the respondent that the summary of the facts that the Appeal Division provided in its reasons was balanced and fair. That all of the evidence was not repeated in the analysis portion of the Appeal Division"s reasons is not a reviewable error.
[10] In conclusion, for the foregoing reasons, this application for judicial review will be dismissed, and no question will be certified.
___________________________
Frederick E. Gibson
Ottawa, Ontario
March 5, 1999
__________________
1 [1973] S.C.R. 102">[1973] S.C.R. 102 at 108.
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