IMM-760-96
Between:
BANTA SINGH GILL,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
GIBSON, J.
These reasons arise out of an application for judicial review of a decision of the Appeal Division (the "Tribunal") of the Immigration and Refugee Board wherein the Tribunal determined that it lacked jurisdiction pursuant to section 77 of the Immigration Act1 to consider an appeal from a decision of a visa officer rejecting an application for landing in Canada of a citizen of India, whose application was sponsored by the Applicant, on the ground that the sponsoree is not a member of the family class within the meaning of subsection 2(1) of the Immigration Regulations, 19782. The decision of the Tribunal is dated the 5th day of January, 1996.
The Applicant was landed in Canada in April of 1986. He is an illiterate farm worker who lives in south-central British Columbia. He and his wife have two daughters. The Applicant was anxious to have a son to carry on the family name, to support him in his later years and to inherit his farm lands. One of his daughters refused to give up her own son for adoption by the Applicant. Accordingly, the Applicant turned to family in India. Agreement was reached that he would adopt a grandson of his deceased brother (the "sponsoree").
A giving and taking ceremony was performed in India in July, 1991, allegedly in accordance with The Hindu Adoptions and Maintenance Act, 1956, with an individual representing the Applicant under a power of attorney. The sponsoree left the home of his natural mother, his father was deceased, and took up residence with the holder of the power of attorney.
In October of 1991, the Applicant provided an undertaking of assistance to the sponsoree, as a member of the family class, to support the sponsoree's application for landing in Canada. Thereafter, the sponsoree applied for landing in Canada. The sponsoree's application for landing was formally rejected by letter dated June 23, 1994. The Applicant appealed the rejection to the Tribunal. The Applicant's appeal resulted in the decision here under review.
In its decision, the Tribunal described the issue before it in the following terms:
| The issue before the Appeal Division is whether the applicant is the adopted son of the appellant and, therefore a member of the family class as described in the Immigration Regulations, 1978. Specifically, the Appeal Division must determine whether there was a valid adoption ceremony and whether it was conducted with the intent to transfer the applicant from the family of his birth to the family of adoption. Furthermore, the Appeal Division must determine whether the adoption created a parent-child relationship between the adoptive parents and the adopted child. |
The Tribunal concluded its decision in the following terms:
| The Appeal Division agrees with counsel for the appellant that a microscopic examination of testimony given through an interpreter is unreasonable. This is true when there is ambiguity in statements and when nuances and subtleties in meaning of language can be misconstrued. However, the panel finds that the inconsistencies revealed in the testimony of the appellant [here the Applicant] and applicant [here the "sponsoree"] in this case are not microscopic, but are clear, unambiguous and unmistakable. |
| The panel finds that the inconsistent evidence regarding the timing of visits by the appellant to the applicant in India seriously weakens the intent to transfer the applicant from the family of his birth to the family of his adoption. It is not credible that the applicant would forget that the appellant had visited only six months earlier. |
| The applicant and the appellant also gave inconsistent testimony regarding the frequency of telephone contact. The appellant testified that he had never talked on the telephone with the applicant while the applicant told the visa officer that he had talked three or four times. The panel finds the bona fides of the adoption to be questionable as the evidence regarding contact between the appellant and the applicant is clearly contradictory. |
| The panel also finds it highly suspect that the appellant was unaware of the applicant's level of education and showed so little concern that the applicant receive more schooling. Moreover, the panel finds it implausible that the applicant was unaware of the appellant's health problems, particularly when the appellant visited him in India in October 1993 and they spent three months together. |
| There is insufficient evidence from the biological parents regarding their reasons for giving their son in adoption. |
| The panel does not find the existence of facial hair on the applicant in the adoption photographs to be determinative. Although it does raise some doubts regarding the applicant's stated age, expert evidence regarding such an occurrence is required for the panel to make an informed finding. |
| The Appeal Division finds that there is no intention to transfer the applicant from the family of his birth to the family of adoption. Accordingly, the adoption of the applicant did not comply with clause 11(vi) of the Hindu Adoptions and Maintenance Act, 1956 and does not satisfy the definition of "adopted" as contained in subsection 2(1) of the Immigration Regulations, 1978. The applicant is not a member of the family class. |
In the written material submitted, much was made of the visa officer's reliance on amendments made to the definition "adopted" in subsection 2(1) of the Immigration Regulations, 1978, with effect after the sponsorship and landing application were filed in this matter and further amendments to the Regulations with effect after, in the submissions of counsel for the Applicant, the decision to reject the sponsoree's application had been effectively made, albeit not communicated to the Applicant and the sponsoree. I find these concerns to be irrelevant for the purposes of this application for judicial review. There is nothing on the face of the Tribunal's decision to indicate that it relied on anything other than the provisions of the Regulations in effect at the time of the sponsorship and the application for landing. Those were the provisions most favourable to the Applicant and the sponsoree. Those provisions will be relied on in my analysis.
At the relevant time, in order to qualify as a member of the family class, the sponsoree had to be the unmarried son of the Applicant. To qualify as an unmarried son, the sponsoree had to be a son who was less than a specified age and unmarried. The Tribunal did not question the sponsoree's qualifications as to age and marital status. To qualify as the "son" of the Applicant, the sponsoree, not being the natural son of the Applicant, had to have been adopted by the Applicant before attaining a specified age. At the relevant time, "adopted" was defined in subsection 2(1) of the Regulations in the following terms:
| "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; |
The adoption here at issue purported to have been conducted under The Hindu Adoptions and Maintenance Act, 1956, which required, not merely a "giving and taking ceremony", but the ". . . intent to transfer the child from the family of its birth . . . to the family of its adoption.". The Tribunal found the required intent to be lacking and thus the adoption not to have been ". . . in accordance with laws of [a] country other than Canada . . . ".
In Singh v. Canada (Minster of Employment and Immigration)3 Mr. Justice Hugessen 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 this matter, both the visa officer and the Tribunal relied on interviews of the Applicant and the sponsoree, conducted well after the giving and taking ceremony took place, to determine whether the test propounded by Mr. Justice Hugessen had been met. Those interviews spoke to the relationship, following the ceremony, between the Applicant and the sponsoree, one being in Canada and the other being in India, the nature of communication between them, the degree of support provided by the Applicant to the sponsoree, the knowledge of the Applicant concerning the difficulties of the sponsoree and of the sponsoree concerning the difficulties of the Applicant, and the sponsoree's continuing relationship with his natural mother. I am satisfied that these were appropriate considerations in ". . . the determination whether The Hindu Adoptions and Maintenance Act, 1956 has been complied with . . . " and whether there was
". . . created a relationship of parent and child so as to make the adoptee the sponsor's ,son-.".
In Minister of Citizenship and Immigration v. Patel4 Mr. Justice Cullen stated:
| The issue is not whether there has been a valid adoption in accordance with the laws of India. Rather, the Appeal Division must decide whether the adoption, in accordance with the laws of India, is properly recognized under the Immigration Act and Regulations. |
With great respect, I believe that both questions are proper issues for determination. 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.
In Canada (Minister of Citizenship and Immigration) v. Edrada5 Mr. Justice MacKay concluded:
| [18] In my view, the tribunal had a duty under then 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 adopting parent and the adoptee. The definition of "adopted" in 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. |
I concur with the foregoing statement and with the concept of a "two step process".
In this matter, the Tribunal did not get beyond the first step. It determined that the foreign adoption laws were not complied with, because the requisite intention was lacking. Having reached this conclusion, it became unnecessary for the Tribunal to go on to the second step.
The remaining question then was whether the Tribunal's conclusion that the requisite intent under The Hindu Adoptions and Maintenance Act, 1956 was not present, was reasonably open to the Tribunal. I refer back to the analysis of the Tribunal quoted earlier in these reasons. Despite the earnest and well-formulated submissions advanced on behalf of the Applicant, on the totality of the material that was before the Tribunal, I am satisfied that its conclusion that the requisite intent was lacking was reasonably open to it. Put another way, I can find no basis on which to conclude that the Tribunal erred in a reviewable manner in reaching the decision that it did.
For the foregoing reasons, this application for judicial review will be dismissed.
Counsel for the Applicant recommends certification of the following questions, together or in the alternative, which he argues are serious questions of general importance within the meaning of subsection 83(1) of the Immigration Act:
| Does Mr. Justice Hugessen's statement in Singh v. M.E.I, [1990] 3 F.C. 37 (C.A.), that an enquiry into whether there had been 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, should be directed more to historical fact than to present status envision or permit a review of the quality and/or of the communicatin and/or of the level of mutual awareness or knowledge between the adoptee and his sponsor at a point in time at least several years after the adoption ceremony? |
| Does Mr. Justice Hugessen's statement in Singh v. M.E.I., [1990] 3 F.C. 37 (C.A.), that an enquiry into whether there has been 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, should be directed more to historical fact than to present status envision or permit a review of the nature and quality of the relationship between the adoptee and his sponsor at a point in time at least several years after the adoption ceremony? |
I am satisfied that the two questions are essentially identical and, if certification is to be made, only one of the two questions should be certified.
Counsel for the Applicant argues that the reliance in this matter on evidence disclosed in interviews conducted well after the giving and taking ceremony took place that disclosed the conduct of the parties, and their knowledge of one another, in the period following the ceremony and continuing to the time of the interviews constituted a reviewable error. Counsel argues that this is not consistent with Mr. Justice Hugessen's indication that "The enquiry is directed more to historical fact than to present status... ."
In response, counsel for the Respondent argues that the issues raised by this application had been dealt with by the two divisions of this Court on a number of occasions. For this proposition she cites the Singh and Edrada cases referred to earlier as well as The Minister of Citizenship and Immigration v. Sharma.6 Further, counsel urges that this case turns on its own particular facts, that the statement of Mr. Justice Hugessen in Singh is clear on its face and that, in any event, the questions proposed are not determinative of this appeal and therefore should not be certified.7
I am not persuaded by the arguments presented by counsel for the Respondent. In the event, the second question proposed by counsel for the Applicant, slightly modified, will be certified.
____________________
Judge
Ottawa, Ontario
October 22, 1996
__________________1 R.S.C. 1985, c. I-2.
2 SOR/78-172.
3[1990] 3 F.C. 37 (C.A.)
4January 26, 1995, IMM-6059-93 (F.C.T.D.), (unreported).
5(1996), 108 F.T.R. 60.
6Court File: IMM-453-95, 28 August 1995 (unreported) (F.C.T.D.)
7See Liyanagamage v. Canada (M.C.I.) (1994), 176 N.R. 4 (F.C.A.)