Date: 20070130
Docket: IMM-3092-06
Citation: 2007 FC 92
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
SARABJIT
SINGH NAHAL
Respondent
REASONS FOR JUDGMENT
Pinard
J.
[1]
This
is an application for judicial review on behalf of the Minister of Citizenship
and Immigration of the decision of a member of the Immigration Appeal Division
of the Immigration and Refugee Board (the “IAD”), dated May 8, 2006, which
determined that Mr. Sarabjit Singh Nahal’s adoption of the now 17 year old Ms.
Tajinder Kaur was genuine and not entered into primarily for the purpose of
acquiring any status or privilege under the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the IRPA), and therefore satisfied the
definition of “dependant child” for application of permanent residence in
Canada.
* * * * * * *
*
[2]
The
respondent, Mr. Nahal, was born in India, obtained permanent residence status
in Canada in 1987, and
three years later sponsored his wife from India.
[3]
After
travelling to India in December 2000,
the Nahals decided to adopt the almost 12 year old daughter, Tajinder Kaur, of
family friends. They asked the natural parents if they could adopt her and
after a refusal, the natural parents agreed.
[4]
According
to the respondent, the adoption ceremony took place on February 28, 2001, but
the deed of adoption was registered on March 5, 2001.
[5]
The
Nahals also gave power of attorney to Mrs. Nahal’s father, Gurmej Singh, to
provide for Tajinder’s care in the Nahals’ absence.
[6]
In
early 2002, Tajinder applied for a Canadian permanent residence visa sponsored
by Mr. Nahal.
[7]
On
April 25, 2005, a visa officer interviewed Tajinder, her natural parents, her
adoptive father and his power of attorney. The officer determined that Tajinder
was not a member of the family class under section 4 and paragraph 117(1)(b)
of the Immigration and Refugee Protection Regulations, DORS/2002-227
(the Regulations) because the officer found that the adoption was not genuine
nor was it in Tajinder’s best interests pursuant to paragraphs 117(1)(c)
and (d), and therefore did not meet the requirements of the IRPA. Her
application was denied.
[8]
As
the sponsor of a refused applicant falling under the family class, Mr. Nahal
appealed the officer’s decision to the IAD, pursuant to subsection 63(1) of the
IRPA. The IAD heard the appeal on May 2, 2006 and reversed the visa
officer’s original decision on May 8, 2006.
[9]
Although
the relevant application for permanent residence was begun under the previous Immigration
Act of 1978, section 190 of the new IRPA states that applications pending
immediately before the coming into force of the new IRPA are governed by the
new IRPA.
* * * * * * *
*
[10]
The
relevant provisions of the Regulations read:
|
3. (2) For the
purposes of these Regulations, “adoption”, for greater certainty, means an
adoption that creates a legal parent-child relationship and severs the
pre-existing legal parent-child relationship.
4. For the purposes
of these Regulations, a foreign national shall not be considered a spouse, a
common-law partner, a conjugal partner or an adopted child of a person if the
marriage, common-law partnership, conjugal partnership or adoption is not
genuine and was entered into primarily for the purpose of acquiring any
status or privilege under the Act.
|
3. (2) Pour l’application du présent
règlement, il est entendu que le terme « adoption » s’entend du lien de
droit qui unit l’enfant à ses parents et qui rompt tout lien de filiation
préexistant.
4. Pour
l’application du présent règlement, l’étranger n’est pas considéré comme
étant l’époux, le conjoint de fait, le partenaire conjugal ou l’enfant
adoptif d’une personne si le mariage, la relation des conjoints de fait ou
des partenaires conjugaux ou l’adoption n’est pas authentique et vise
principalement l’acquisition d’un statut ou d’un privilège aux termes de la
Loi.
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*
[11]
The
applicant submits that the IAD erred in law when it found the adoption to be
genuine under section 4 of the Regulations, in that the IAD applied the
incorrect legal test. I agree.
[12]
Section
4 of the Regulations is dealt with in paragraphs 23 and 24 of the impugned
decision, which read as follows:
[23] In
regards to section 4 of the Regulations, in order for a foreign national
to be disqualified, the preponderance of reliable evidence must demonstrate
that the adoption is not genuine and was entered into for the purpose of
acquiring a status or privilege under the Act. In order to succeed, one
need only establish that one of the prongs of the test has not been met.
[24] I have
examined the evidence in regards to the adoption and am of the opinion that the
applicant was legally and validly adopted: there is evidence from the applicant
and the appellant’s wife that there was a giving and taking, and I accept the testimony
of the appellant’s wife regarding the date of the Deed of Adoption being
executed on March 5, 2001 and that find it otherwise conforms with HAMA law
[Hindu Adoptions And Maintenance Act, 1956]. As one prong of the section 4 bad
faith test has been met, I find that the applicant is an adopted child.
[13]
It
appears, therefore, that the IAD found that the adoption was genuine because it
found that it was legally solemnized, without considering other factors to
determine the bona fides of the adoption. This interpretation was
rejected in Ni v. Minister of Citizenship and Immigration, 2005 FC 241, in
the context of the genuineness of a marriage: “. . . to interpret “genuine” as
“legal” would render section 4 of the Regulations redundant”.
[14]
As
opined by my colleague Justice Russell in Frounze v. Minister of Citizenship
and Immigration, 2004 FC 331, at paragraph 32:
.
. . Hence, in my opinion, whenever the word “adopted” comes up for
consideration under the Immigration Regulations, it is not sufficient to consider
the bare legality of an adoption and the decision maker must also determine
whether a genuine relationship of parent and child was created.
[15]
In
the case at bar, in its consideration and application of section 4 of the
Regulations, the IAD erroneously addressed the question of whether the adoption
was valid or legal in the local country and did not analyze whether there was a
genuine parent-child relationship created. Relevant factors to be considered
under the section 4 analysis such as the circumstances of the adoption, the
whereabouts of the child’s natural parents and their personal and living
circumstances, financial and emotional support provided by the adoptive
parents, the reasons for the adoption, and the social and legal practices in
the local country, were not considered (Operations Manual OP3, Sub 7.8 (“How to
identify an adoption of convenience”)).
[16]
On
the applicable standard of review of correctness (Chieu v. Canada (M.C.I.),
[2002] 1 S.C.R. 84), I conclude, therefore, that the impugned decision is not
correct and must be set aside.
[17]
Consequently,
the IAD’s decision is set aside and the matter is sent back for re-determination
by another IAD member in a manner consistent with these Reasons.
[18]
Counsel
for the respondent proposed the following questions for certification:
1.
In assessing the best
interests of an adopted child under the Immigration and Refugee Protection
Regulations section 117(2) and section 117(3), does the Immigration Appeal
Division have the obligation under Immigration and Refugee Protection Act
section 67(1) to consider the continuing best interests of the child, as they
exist as of the date of the hearing?
2.
Is a decision-maker
bound to consider Immigration and Refugee Protection Regulations section
4 and section 117(3) in a sequential manner, such that a determination
must first be made that the adoption is genuine and/or was not entered into
primarily for the purposes of acquiring a status or privilege under the IRPA,
before compliance under Regulations 117(2) and 117(3) can be assessed?
3.
Does a finding that
an adoption creates a genuine parent-child relationship pursuant to subsection
117(3)(c) of the Immigration and Refugee Protection Regulations
imply that a finding has been made that an adoption is genuine, pursuant to Regulations
section 4?
[19]
The
first question above does not arise in the present case as in an appeal of an
application to sponsor a member of the family class, section 65 of the IRPA
prohibits the IAD from considering the best interest of the child and humanitarian
and compassionate considerations pursuant to section 67 of the IRPA unless
the IAD has already decided that the foreign national is a member of the family
class (Xu v. Minister of Citizenship and Immigration, 2005 FC 1575 and Yen
v. Minister of Citizenship and Immigration, 2005 FC 1307).
[20]
With
respect to the second question above, I agree with counsel for the applicant
that the sequence of assessing section 4 and section 117 of the Regulations is
irrelevant to the determination of the issues in the underlying judicial review
application and does not arise as an issue in this case. Here, the IAD clearly
erred in failing to make any determination with respect to the genuineness of
the adoption pursuant to section 4 of the Regulations.
[21]
Finally,
concerning the third question above, it ought not be certified for the same
reasons set out above for refusing certification of the second question.
Furthermore, this third question does not arise in the case at bar, as I have
found that not only did the IAD fail to make any assessment with respect to the
genuineness and bona fides of the adoption pursuant to section 4, but
that the IAD erred in misinterpreting and misapplying the test in section 4 by
making a finding with respect to the legality of the adoption instead.
[22]
Consequently,
there is no certification.
“Yvon
Pinard”
Ottawa, Ontario
January
30, 2007
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