Date: 19980618
Docket: IMM-3186-97
PRESENT: THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
OTTAWA, ONTARIO, JUNE 18 1998.
BETWEEN:
GURDEEP SINGH,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review is granted. The decision of the Board is set aside and the matter is referred back for rehearing by a differently constituted panel.
"Danièle Tremblay-Lamer"
JUDGE
Date: 19980618
Docket: IMM-3186-97
BETWEEN:
GURDEEP SINGH,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
TREMBLAY-LAMER J.:
This is an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board ("Appeal Division"), dismissing the Applicant's appeal regarding his sponsorship of his adopted son, Ranjit Singh.
Ranjit is, in fact, the nephew of the Applicant's wife. He was born to her sister and brother-in-law in India. He was adopted by the Applicant and his wife in 1990 and soon thereafter, the Applicant sponsored him for landing in Canada.
However, the application was refused by an overseas immigration officer. The decision was appealed to the Appeal Division pursuant to subsection 77(3) of the Immigration Act[1] ("Act"), which in turn turned down the appeal.
The definition of "adopted" in subsection 2(1) of the Immigration Regulations, 1978[2] ("Regulations") contemplates a two step analysis in which a determination must first be made as to whether foreign adoption laws have been complied with, and second, whether a genuine relationship of parent-child is created. Subsection 2(1) as it stood before February 1, 1993, reads:
| "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.
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« adopté » signifie adopté conformément aux lois de toute province du Canada ou de tout pays autre que le Canada ou de toute subdivision politique de ces pays lorsque l'adoption crée un lien entre père et mère et enfant.
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The Appeal Division was of the opinion that Ranjit's adoption satisfied neither of the two steps.
The law of India governing adoptions is the Hindu Adoptions and Maintenance Act ("HAMA"). It provides, inter alia, that a child must be actually given and taken in adoption by the parents or guardian during a ceremony, with the intent to transfer the child from the family of his birth to the family of his adoption.
The Appeal Division held that while an adoption ceremony did take place, there was no intent to transfer Ranjit from his family of birth to his family of adoption. Further it was not satisfied that a bona fide parental bond existed between Ranjit and his adoptive parents.
The Applicant and his wife testified that they were anxious to have a son and that Ranjit's biological parents readily agreed to an adoption because they knew their son would satisfy the needs of a young couple eager to have a son. The Appeal Division found this explanation weak in light of the fact that the Applicant's wife discovered she was pregnant of her third child soon after the adoption proceedings began.
It was also swayed by a number of "peculiar" facts. For example, the Applicant and his wife did not attend the adoption ceremony despite their anxiousness over adopting a son.
It also noted that evidence of financial support was weak and it was not satisfied that the Applicant had maintained regular contact with Ranjit. Although the Appeal Division accepted that the Applicant and his wife visited India in 1992, it was not satisfied that visiting Ranjit was their sole purpose.
As for the Applicant's other documentary evidence which attested to the relationship between Ranjit and his adoptive parents (i.e. copies of Ranjit's passport, affidavits from persons allegedly familiar with the adoption, a newspaper announcement and school certificate), the Appeal Division noted that they were either issued, sworn or published after the refusal by the overseas immigration officer and therefore, little weight could be afforded to them.
It is a well established principle that findings of lack of credibility must be clearly made and supported by valid reasons.
In the case at bar, the Board acted arbitrarily in characterizing the evidence as "weak" or "peculiar" without explaining why it was not credible.
I could not find in the evidence as a whole a proper foundation to displace the uncontradicted testimony of the Applicant. The evidence established that the Applicant and his wife wanted to adopt Ranjit because they loved him (the Applicant's wife took care of him in his childhood) and because they wanted a boy. They obtained the consent of the parents to the adoption, removed Ranjit from their custody, appointed a guardian after the adoption, made financial arrangements for Ranjit's expenses, went to visit him once in India, and kept contact with him by mail and by phone.
Several material findings were based on speculations, a microscopic examination of the evidence and a lack of appreciation of the cultural differences.
Consequently the application for judicial review is granted. The decision of the Board is set aside and the matter is referred back for rehearing by a differently constituted panel.
Neither counsel recommended certification of a question in this matter. Therefore, no question will be certified.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
June 18, 1998.
EE12MAL COURT OF CANADA TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-3186-97
STYLE OF CAUSE: Gurdeep Singh v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 12, 1998
REASONS FOR ORDER BY:The Honourable Madame Justice Tremblay-Lamer
DATED: June 18, 1998
APPE RANCES:
Mr. Lawrence L. Bandfor the Applicant
Mr. John Loncarfor the Respondent
SOLICITORS OF RECORD:
Bush, White and Wong
Toronto, Ontariofor the Applicant
Mr. George Thomson
Deputy Attorney General of Canadafor the Respondent