Dhaliwal v. Canada (Citizenship and Immigration), docket IMM-1127-96

     IMM-1127-96

BETWEEN:

     JAGIR SINGH DHALIWAL

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

ROULEAU, J.

     This is an application for judicial review of a decision of the Appeal Division ("the Tribunal") officially rendered March 11, 1996, wherein it held that Kuldip Kaur is not a member of the family class within the meaning of the Immigration Regulations, 1978, and dismissing the appeal from the refusal to approve the application for landing made by Kuldip Kaur for lack of jurisdiction.

     The applicant was born in India on March 10, 1941, and landed in Canada in 1972 along with his wife and son. The facts are set out in the Appeal Division's decision as follows:

He is employed as a milk worker and owns a blueberry farm. He is married to Ranjit Kaur, a cannery worker, and they have one biological son Manjit Singh, born on May 3, 1961.

The applicant adopted Kuldip Kaur on April 6, 1986, in his family home in India where his brother, Bharg Singh, was residing with his family. Kuldip Kaur, who has two biological sisters, was born on July 3, 1975, and is the biological daughter of Amarjit Kaur Bhathal and Harjinder Singh Bhathal. The applicant testified that he wanted to adopt Kuldip Kaur because his own son, Manjit, had moved to Toronto in 1984 and he had no children at home. He also testified that he wanted to help the [sic] Kuldip Kaur's biological mother who was having a difficult time providing care and support to her three daughters after Kuldip Kaur's biological father died in a car accident in 1978.

The applicant testified that he adopted another daughter, Jasvir Kaur, in July 1977 when she was three or four years old and she came to Canada in 1980. However, while in India for the wedding of the applicant's son, that adopted daughter died on March 11, 1985, from an illness.

The applicant made an Undertaking of Assistance for Kuldip Kaur on December 15, 1990, four years after her adoption. He told the panel he delayed sponsoring her to give her an opportunity to study Punjabi, learn Sikh culture and finish grade ten. He also testified that he was fearful she would come here and learn bad ways, do drugs if she came here at a young age and was left alone because both the applicant and his wife are employed out of the home. The applicant testified that both Kuldip Kaur and her biological mother were fully aware of these reasons for the delay in sponsorship.

The applicant told the panel that Kuldip Kaur has resided with Bharg Singh, the applicant's older brother, in village Chaukiman since April 1994 and before then, resided five miles away with her biological mother and two sisters in village Hassanpur.

The applicant testified that he has been claiming support for Kuldip Kaur on his income tax returns since 1986. He sends money to Kuldip Kaur through his brother, he said he telephones Kuldip Kaur only once or twice a year because it is costly but writes to her six times a year. He stated that he has travelled to India to visit Kuldip Kaur four times; in 1986, 1988, 1992 and 1994.

Amarjit Kaur Bhathal, the [sic] Kuldip Kaur's biological mother, testified by telephone from India. She told the panel that she did not know why there was more than a four-year delay between the adoption and the sponsorship of Kuldip Kaur and denied that she had been told it was to allow Kuldip Kaur to learn the Punjabi language and Sikh culture. She confirmed that her husband died in a motor vehicle accident five years after their marriage and that she sells buffalo milk for a living. Ms. Bhathal testified that the applicant's wife is her late husband's sister then added that the applicant and her late husband were friends so she therefore considers the applicant and his spouse to be relatives. She stated that the applicant provides financial support to Kuldip Kaur.

Kuldip Kaur also testified by telephone from India. She stated that she had been adopted when she was twelve years old because her mother was unable to care for her. Kuldip Kaur did not know why the applicant waited more than four years after the adoption before sponsoring her. She testified that after the adoption, she resided in village Hassanpur and moved to village Chaukiman a year ago. She stated that the applicant and his wife have travelled to India four times, in 1986, 1988, 1992 and 1994, to visit her.

     On February 2, 1994, Blair Fraser, Third Secretary (Immigration), Canadian High Commission, New Delhi, wrote post interview notes in Kuldip Kaur's file, which reads in part as follows:

Application to be refused as pi [sic] has failded [sic] to show that there was a gengenine [sic] intent to transfer her from her natural parent to her claimed adoptive parents.

     Mr. Fraser sent a letter to Kuldip Kaur, dated June 10, 1994, advising her that her application has been refused for the following reasons:

In my opinion, you have not demonstrated that a genuine relationship of parent and child exists between you and your sponsor, that ties with your natural family have been replaced by those of your sponsor, or that your alleged adoption was entered into for any other reason that for you to reside in Canada.

     A hearing before the Appeal Division took place on November 21, 1995. By decision dated March 7, 1996 and signed March 11, 1996, the tribunal dismissed the appeal. It found the applicant's testimony regarding the adoption and subsequent sponsorship of Kuldip Kaur problematic and implausible insofar as there were direct contradictions and significant discrepancies between the applicant's testimony and that of Kuldip Kaur and her biological mother. The panel concluded as follows:

The Appeal Division finds that there was no intention to transfer the applicant [Kuldip Kaur] from the family of her birth to the family of adoption. Accordingly, the applicant's [Kuldip Kaur] adoption does not comply with clause 11(vi) of the Adoption Act and does not satisfy the definition of "adopted" in subsection 2(1) of the Regulations. The applicant [Kuldip Kaur] is not a member of the family class.

Accordingly, the appeal is dismissed for lack of jurisdiction.

     The applicant now seeks to have that decision set aside.

     The subordinate legislation governing sponsored applications for landing has been amended several times between June 1991, when Kuldip Kaur filed her sponsored application for landing, and March 1996, when the hearing took place before the Appeal Division. In June of 1991, when Kuldip Kaur submitted her sponsored application an individual could sponsor an application for landing made by his "unmarried son or daughter". The term "daughter" was defined in subsection 2(1) of the Regulations as follows:

"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 thirteen years of age

     The definition of "adopted" in subsection 2(1) of the Regulations read:

"adopted" means adopted in accordance with the laws of any province of Canada or of any country other than Canada or any political subdivision thereof where the adoption created a relationship of parent and child

     On March 27, 1992, the Regulations were changed so that a person could sponsor an application for landing of a "dependent daughter" or "dependent son". The definition "unmarried" was revoked, the definition "dependent" was amended, and definitions were added for the terms "dependent daughter" and "dependent son". Under the amended Regulations however, the above definitions of the terms "daughter" and "adopted" remained unchanged.

     On February 1, 1993, the Regulations were again amended to provide that a person could sponsor an application for landing made by a "member of the family" class. "Member of the family class" was defined to include a "dependent daughter" or "dependent son". The definition of "daughter" was amended to increase the age cutoff from thirteen to nineteen years, and the definition of "adopted" was amended to read:

"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;

     On March 17, 1994, subsection 6(1) of the Regulations was amended by adding subparagraph (e). That provision now reads:

6. (1) Subject to subsection (1.1), (3.1), (3.2), (4), (5) and (6), where a member of the family class makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the member and the member's accompanying dependents if

(e) in the case of a person described in paragraph (b) of the definition of "member of the family class" in subsection 2(1), or a dependant of a member of the family class, who has been adopted, the person or dependant was adopted before having attained 19 years of age and was not adopted for the purpose of gaining admission to Canada of the person or dependant. or gaining the admission to Canada of any of the person's dependant's relatives.

     Section 6 was further amended by adding the following transitional provision:

(1.01) Paragraph (1)(e) is retroactive and applies in respect of all applications for landing made by members of the family class pending on April 15, 1994.

     The applicant argues that the Appeal Division erred in law when it dismissed the appeal on the basis that there was no intention to transfer Kuldip Kaur from her birth family to the family of adoption. It is argued that the panel erred by examining the authenticity of the adoption and finding that the evidence was not indicative of a genuine parent/child relationship. The applicant maintains that the application should have been processed under the former definition of "adopted" (ie. prior to the February 1, 1993 amendments), without regard to paragraph 6(1)(e) of the Regulations, and that under the former definition, once a valid adoption had taken place, a parent and child relationship was automatically created by operation of the governing Indian law.

     The applicant's contention that paragraph 6(1)(e) has no application is based on the allegation that the visa officer's decision to refuse Kuldip Kaur's landing application was made on February 2, 1994. It was therefore not "pending" within the meaning of section 6(1.01), the transitional provision which provided for the retroactive effect of paragraph 6(1)(e) to applications pending on April 15, 1994.

     I am not persuaded by the applicant's arguments. In Minister of Employment & Immigration v. Dass (February 15, 1996, A-242-93), the Federal Court of Appeal held that a decision is taken to have been made when notice of that decision is given to the affected parties. Strayer, J.A. stated at pp. 9-10:

I see no reason to depart from the normal requirements of administrative law that a decision is taken to have been made when notice of that decision is given to the parties affected with some measure of formality. Judicial review cannot be sought of decisions until they have been formulated to the parties affected. Why should the courts take it upon themselves to examine the interdepartmental and intradepartmental correspondence to determine if and when a decision, though never communicated, was indeed taken?

     In the present case, what transpired on February 2, 1994, was that the Visa Officer interviewed Kuldip Kaur and her natural mother. Following the interview, the officer made some post-interview notes in which he stated that the application was to be refused as there was no genuine intent to transfer the child from her natural parents to the adoptive parents. However, there was no communication of any decision to the applicant on that date. It was not until June 10, 1994, that Kuldip Kaur was advised by letter from the Visa Officer that her sponsored application for landing had been refused. Prior to that date therefore, the application was still "pending" within the meaning of section 6(1.01) of the Regulations and paragraph 6(1)(e) of the Regulations applied.

     In any event, although the definition of "adopted" was amended between the time when Kuldip Kaur filed her landing application and when the hearing before the Appeal Division took place, the former definition of "adopted" also required an assessment of the factual circumstances surrounding the adoption. Accordingly, irrespective of which definition of "adopted" is applied in this case, I am satisfied that the Appeal Division was correct in examining the authenticity of the adoption and finding that the evidence was not indicative of a genuine parent/child relationship.

     The jurisprudence of this Court strongly supports that view. In Singh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 37, the Federal Court of Appeal stated:

The question thus, for the visa officer and the Immigration Appeal Board in each of these cases, was not to know whether the persons sought to be sponsored by the respective appellants had the status in India of being their adopted sons, a question to which the presumption created by section 16 of The Hindu Adoptions and Maintenance Act, 1956 would be relevant if it were applicable. Rather, the question in each case was to know whether there had been, prior to the child's thirteenth birthday, an adoption "in accordance with the Laws of India which created a relationship of parent and child so as to make the adoptee the sponsor's son". This is an issue of Canadian law. The enquiry is directed more to historical fact than to present status and the determination whether The Hindu Adoptions and Maintenance Act, 1956 has been complied with is only a part of the responsibility which Canadian legislation gives to the visa officer and the Board to decide whether an application for landing in Canada should be approved.

     In Canada (Minister of Citizenship & Immigration) v. Edrada (January 26, 1995, IMM-6059-93), McKay, J. made the following comments at pp. 5-6:

In my view, the tribunal had a duty under then s-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 parent and the adoptee. 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.

In my opinion, if Parliament had intended that a determination whether an individual is considered to be adopted for the purposes of the Act and Regulations was to be based solely on compliance with the adoption laws of the applicable foreign jurisdiction, thee would have been no purpose in including the phrase "where the adoption created a relationship of parent and child". That phrase, in my view, 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.

     The same reasoning was applied in the recent decision of Gill v. The Minister of Citizenship and Immigration (September 26, 1996, IMM-760-96) wherein Gibson, J., after referring to the above-noted quote in Singh stated as follows at p. 5:

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.

     I am satisfied therefore that in the present case the Appeal Division was correct in assessing the factual circumstances surrounding the purported adoption of Kuldip Kaur by the applicant and that it was reasonably open to the tribunal, based on the evidence before it, that the adoption did not create a genuine parent/child relationship.

     For these reasons, the application is dismissed.

JUDGE

OTTAWA, Ontario

November 19, 1996