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Date: 20011102

Docket: IMM-2356-01

Neutral citation: 2001 FCT 1198








                                                            REASONS FOR ORDER


[1]                  The Applicant seeks to set aside a decision of the Appeal Division of the Immigration and Refugee Board (the "Appeal Division"), dated April 2, 2001. By its decision, the Appeal Division allowed the Respondent's appeal from a decision made by a visa officer in July 2000 whereby the Respondent was found not to be a member of the family class. The order rendered by the Appeal Division herein reads as follows:

The Appeal Division orders that the appeal be allowed because the refusal to approve the application for landing made by Harjeet Singh KHOSA is not in accordance with the law.

[2]                 The relevant facts are straightforward. The Respondent made an application to sponsor Harjeet Singh Khosa, his Indian adopted son. The issue before the visa officer and before the Appeal Division was whether the "adoption" of the son by the Respondent in India met the requirements of subsection 2(1) of the Immigration Regulations which defines "adopted" as follows:

"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; (adopté)

« adopté » Personne adoptée conformément aux lois d'une province ou d'un pays étranger ou de toute subdivision politique de celui-ci, don't 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. (adopted)

[3]                 The only issue raised by the Applicant in its memorandum is whether the Appeal Division applied an incorrect test in determining the validity of the adoption at issue. As I indicated to counsel at the hearing, the Appeal Division did not apply, in my view, an incorrect test. The Applicant focused primarily on a statement made by the Appeal Division, at page 4 of its reasons which reads as follows:

Given the extensive passage of time and the fact that the appellant has not traveled to India, the relationship between the appellant and the applicant is limited but I am satisfied that the appellant and the applicant always intended to create a genuine relationship of parent and child through the adoption and that they have taken steps to promote that relationship since the adoption.

[Underling added]

[4]                 In my view, the above passage does not disclose any error on the part of the Appeal Division. It is obvious that the statement in question was given as a response to the argument made by the Minister that the Appeal Division ought to consider in a negative way, the fact that the Respondent had not travelled to India to meet his son. The Appeal Division, in answer to that submission, stated that it was satisfied that notwithstanding that the Respondent had not travelled to India, he had truly behaved as a father and that he had taken steps to solidify his relationship with his son.

[5]                 It cannot be doubted, based on the reasons given by the Appeal Division, that it clearly understood the test which it had to apply. At page 5 of the decision, the Appeal Division stated that it had concluded that the adoption in India was valid and that it had created a genuine relationship of parent and child. That is clearly the test required by the Immigration Regulations.

[6]                 The true issue before me is whether, on the evidence before it, the Appeal Division came to an unreasonable conclusion in finding that the adoption had created a genuine relationship of parent and child. In my view, the conclusion reached by the Appeal Division is not unreasonable. The Appeal Division considered the evidence and emphasized certain aspects of that evidence which weakened the Respondent's contention, but nonetheless, in the end, concluded in favour of the Respondent.

[7]                 Notwithstanding her forceful arguments for the Applicant, Ms. Shane did not convince me that I ought to intervene and set aside the Appeal Division's decision. For these reasons, this application for judicial review will be dismissed.

[8]                 Ms. Shane submitted that I should certify a question of general importance which had been certified by Dubé J. in Perera v. Canada (M.C.I.) 2001 FCT 1047 (September 25, 2001). At page 4 of his reasons, paragraph 21, Dubé J. certified the following question:

Counsel for the respondent has submitted a question of general importance to be certified. Since it appears there is no previous decision of this Court directly on point, it is worthy of certification. The question reads as follows:

In section 2.1 of the Immigration Regulations, does the term "genuine relationship of parent and child" refer to the current state of a relationship between an adoptive parent and child when assessed by a visa officer or does it reflect the future state of that relationship?

[9]                 I indicated to Ms. Shane, after a brief discussion with counsel, that I was not prepared to certify this question. In my view, the question is not a question of general importance and, thus, should not be certified. The answer to the question, in my respectful view, depends on the particular facts of a given case. I further indicated to counsel that had I been the deciding judge in the Perera case, I would not have certified the question which my colleague agreed to certify.

[10]            It is obvious that there is no specific answer to the question certified by Dubé J. The answer to the question depends on the date of the adoption and the date on which the visa officer makes a decision on the sponsorship application. All I can say is that in some cases the current state of a relationship between an adopted parent and child could be the determinant factor whereas in other cases the future state of the relationship could be the relevant factor. In other cases, a combination of the current state and the future state might be important considerations. It is for these reasons, that I declined to certify the proposed question.

(Sgd.) "Marc Nadon"                           Judge

Vancouver, British Columbia

November 2, 2001

                                                   FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-2356-01

STYLE OF CAUSE:                        The Minister of Citizenship and Immigration v. Avtar Singh Khosa

PLACE OF HEARING:                   Vancouver, British Columbia

DATE OF HEARING:                      November 1, 2001


DATED:                                               November 2, 2001


Kim Shane                                                                                    FOR APPLICANT

Zool Suleman                                                                             FOR RESPONDENT


Deputy Attorney General of Canada                                      FOR APPLICANT

Department of Justice

Vancouver, British Columbia

-                                                                                                       FOR RESPONDENT

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