Date: 20010517
Docket: IMM-3078-00
Neutral citation: 2001 FCT 504
BETWEEN:
K. PAUL SATINDER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
INTRODUCTION
[1] K. Paul Satinder (the "Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Immigration Appeal Division ("Appeal Division") made on May 31, 2000. In its decision, the Appeal Division dismissed the Applicant's appeal from a decision of a visa officer who had refused the application for permanent
residence of Anukampa Amar Satinder, a niece of the Applicant and for whom the Applicant was the sponsor.
FACTS
[2] The Applicant and his wife are Canadian citizens whose country of origin is India. They are both professors and are employed at Lakehead University in Thunder Bay, Ontario. The Applicant and his wife, who have been married for several years, have no natural children and in 1977, adopted a niece, Anu, in India.
[3] The adoption of Anu in 1977 was followed, in 1992, by the adoption of another niece, Anukampa Aman Satinder ("Aman").
[4] At the time Aman was adopted, no challenge, formal or otherwise, had been made to the adoption of Anu. However, doubt was cast on the validity of that adoption in 1994 when the Applicant sought to bring Anu to Canada as a permanent resident, on the basis that she was a member of the family class. It appears that that application was rejected by a visa officer in India on the basis that Anu had not been validly adopted. An appeal against that decision was subsequently withdrawn and although Anu's application was referred back to the visa officer, her application for entry into Canada was ultimately dismissed on the basis that she had failed to attend for an interview. Anu did not pursue the matter further.
[5] This background is relevant to the present matter because the Applicant sought to sponsor Anu for admission to Canada as a member of the family class. The application was refused by the visa officer in his letter of December 8, 1997. The visa officer found that Anu was not a member of the family class pursuant to section 2(1) of the Immigration Regulations, 1978, SOR/78-172 because she was not the adopted daughter of her sponsor.
[6] The visa officer reached this conclusion on the basis of his interpretation of the Hindu Adoption and Maintenance Act ("HAMA"), section 11, particularly subsections (ii) and (vi). These subsections provide as follows:
11. In every adoption, the following conditions must be complied with:
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth (or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption.[1]
[7] The visa officer concluded that the Applicant did not have the capacity to adopt Aman because he had previously adopted Amu. In this regard the visa officer said as follows:
Your sponsor had allegedly adopted another daughter, one Anu Satinder, in a ceremony of giving and taking in the year 1977. While the Minister of Citizenship and Immigration has, through her officers, found that adoption void their decision is under Appeal. If the courts determine the adoption of Anu Satinder to be valid then your adoption would necessarily be void ab initio by reason of 11(ii) of the Hindu Adoptions and Maintenance Act, 1956.[2]
[8] The Applicant appealed the visa officer's refusal to the Appeal Division. Following a hearing at which the Applicant testified, the Appeal Division dismissed his appeal. The Appeal Division based its conclusion on a lack of jurisdiction. It found that Aman is not a member of the family class because the Applicant, having adopted Anu in 1977, lacked the capacity, under HAMA, to adopt Aman in 1992.
APPLICANT'S SUBMISSIONS
[9] The Applicant now seeks judicial review of the decision of the Appeal Division and argues that it is wrong in law. He argues that the Appeal Division erred in finding that he was barred from adopting Aman by virtue of the 1977 adoption because the Respondent, through a visa officer, had already determined that the first adoption was void. In this regard, the Applicant relies on the statement in the letter of December 8, 1997, by which Aman's sponsorship application was rejected. The passage in question has been quoted above.
[10] The Applicant argues that if the 1977 adoption was void, this means it was a legal nullity and never existed. In consequence, it cannot be considered as a bar against his subsequent adoption of Aman and that the conclusion by the Appeal Division that he lacked the capacity to adopt Aman is an error in law.
RESPONDENT'S SUBMISSIONS
[11] The Respondent takes the position that there is nothing on the record to show that the 1977 adoption was void, other than the opinion of the visa officer. This opinion is not determinative because the appeal before the Appeal Division was a hearing de novo in which the Applicant had the opportunity to present evidence and where the decision was to be made on the basis of the evidence put before that tribunal.
[12] According to the Respondent, issues of nullity and estoppel do not arise here. The burden lay upon the Applicant to present evidence about the validity, or otherwise, of the 1977 adoption. He did not do so and in the result, the decision of the Appeal Division was reasonable and should remain undisturbed.
ISSUE
[13] The issue here is whether the conclusion of the Appeal Division, that the adoption of Aman was contrary to the provisions of India law and that consequently, Aman is not a member of the family class, reasonable.
ANALYSIS
[14] In my opinion, the starting point in deciding this application is the standard of review applicable to the decision of the Appeal Division. In Boulis v. Canada (Minister of Manpower and Immigration), [1974] S.C.R. 875, the Supreme Court of Canada considered this issue. At page 877, Justice Abbott expressed the view that a decision of the Appeal Division should receive a high degree of judicial deference and should be subject to interference in limited circumstances as follows:
In my opinion however, such an appeal can succeed only if it be shown that the Board (a) has refused to exercise its jurisdiction or (b) failed to exercise the discretion given under s. 15 in accordance with well established legal principles. As to those principles, Lord Macmillan speaking for the Judicial Committee said in D.R. Fraser and Co. Ltd. v. Minister of National Revenue, at p. 36:
The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.
[15] In my opinion, this remains the test when a court is reviewing a decision of the Appeal Division. When this standard is applied to the present case, I find that there is no basis to interfere with the decision in issue.
[16] One Appeal Division reviewed the India legislation governing adoption, that is HAMA. This consideration was specifically required of the Appeal Division having reference to section 2(1) of the Immigration Regulations, 1978 which says:
| 2. (1) In these Regulations, "accompanying dependant", with respect to a person, means a dependant of that person to whom a visa is issued at the time a visa is issued to that person for the purpose of enabling the dependant to accompany or follow that person to Canada and, if the dependant is the spouse of that person, who is at least 16 years of age at the time the visa is issued; |
2. (1) Dans le présent règlement, « adopté » Personne adoptée conformément aux lois d'une province ou d'un pays étranger ou de toute subdivision politique de celui-ci, dont 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. |
|
[17] There was no evidence before the Appeal Division to rebut the appearance that the Applicant had adopted a daughter in 1977 and consequently, lacked the legal capacity to adopt another daughter in 1992. The burden lay upon the Applicant to lead that evidence if he wished to rely on it, specifically if he wished to show that he was legally capable of adopting Aman in 1992.
[18] The conclusion of the Federal Court of Appeal in Singh v. Canada (Minister of Citizenship and Immigration), [1992] F.C.J. No. 861 is relevant to the present case, as follows:
The appeal to the Appeal Division was a proceeding de novo. The Appellant had the burden of establishing to the Appeal Division that the adoption was not void under HAMA. If there was a question that the version of the statute accepted in evidence was the statute in force at the time of the purported adoption, it was for the Appellant to raise it and lead evidence in support of the challenge at the hearing. This is not, of course, to say that the Appeal Division would err in rejecting an antedated version of a statute as trustworthy evidence; common sense might well lead it to do so. It is merely to say that its discretion as to the evidence it will accept as trustworthy is very broadly defined by s. 69.4(3)(c) and that, in a proceeding de novo before the Appeal Division, s. 8(1) is as much in play as in the original application to the visa officer.
ORDER
[19] In the result, this application for judicial review is dismissed. There is no question for certification.
"E. Heneghan"
Toronto, Ontario
May 17, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3078-00
STYLE OF CAUSE: K. PAUL SATINDER
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, MAY 15, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: THURSDAY, MAY 17, 2001
APPEARANCES BY: Mr. John Weisdorf, Q.C.
For the Applicant
Ms. Amina Riaz
For the Respondent
SOLICITORS OF RECORD: WEISDORF WAUD &
McCALLUM: ASSOCIATES
Barristers & Solicitors
Suite 1000 - 121 Richmond Street West
Toronto, Ontario
M5H 2K1
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010517
Docket: IMM-3078-00
Between:
K. PAUL SATINDER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER