Date: 19980525
Docket: IMM-3635-97
Between :
AVTAR SINGH KHAIRA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an application for judicial review whereby the applicant is seeking an order setting aside the decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD") dated August 5, 1997, wherein the IAD dismissed the applicant's appeal regarding the applicant's sponsorship of Kulwinder Kaur Khaira ("Kulwinder"), whom the applicant claims to have properly adopted and sponsored according to Canadian law.
[2] The IAD determined in this instance that the applicant had not proven that there had been a severance of ties between Kulwinder and her birth parents sufficient to establish an intent to transfer her from her biological parents to her adoptive parents as required by clause 11(vi) of the Hindu Adoptions and Maintenance Act (the "HAMA"), and that a relationship of parent and child had not been established between the applicant and Kulwinder.
[3] The definition of "adopted" applicable in this instance is the definition as it stood prior to its amendment. Prior to February 1, 1993, the definition of "adopted" found at subsection 2(1) of the Immigration Regulations, 1978 read as follows:
| "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. |
[4] I recently reviewed the two-part test set out by the jurisprudence to determine whether the former definition of "adopted" has been met in Canada (M.C.I.) v. Shi (May 16, 1997), IMM-3603-96, at page 2:
| The jurisprudence with respect to the pre-February 1, 1993 definition of "adopted" establishes that the IAD is required to look at two issues: whether a sponsored applicant for permanent residence in Canada as a member of the family class was adopted in conformity with the legal requirements of the country in which the adoption took place, and whether the factual circumstances indicate that the relationship of parent and child was created as a result of that adoption.1 |
| 1 See for example Canada (M.C.I.) v. Edrada (1996), 108 F.T.R. 60 (F.C.T.D.); Banda Singh Gill v. Canada (M.C.I.) (October 22, 1996), IMM-760-96 (F.C.T.D.); Canada (M.C.I.) v. Patel (1995), 90 F.T.R. 234 (F.C.T.D.); Canada (M.C.I.) v. Sharma (1995), 101 F.T.R. 54 (F.C.T.D.); Singh v. Canada (M.C.I.), [1990] 3 F.C. 37 (F.C.A.) and Canada (M.C.I.) v. Sohal (January 6, 1997), IMM-1943-96 (F.C.T.D.). |
[5] The applicant has insistently argued that this Court has erroneously interpreted the Court of Appeal's decision in Singh v. Canada (M.E.I.); Brar v. Canada (M.E.I.), [1990] 3 F.C. 37. The applicant suggests that based on Singh, where a foreign adoption creates a parent-child relationship that is legally recognized by the foreign legislation, the old definition of "adopted" requires nothing more to create a relationship of parent and child within the meaning of the Immigration Act. According to the applicant, the decision-maker should therefore only look to the legal relationship and not the factual one. Unfortunately for him, the applicant has failed to convince me that the growing line of jurisprudence referred to in Shi, above, has misinterpreted the Court of Appeal's decision in Singh.
[6] The applicant also takes issue with a particular finding of fact, namely, the biological reason for adopting Kulwinder, which he says was determinative of the IAD's finding that there was a "lack of intent" to transfer Kulwinder to her adoptive family.
[7] In Sohal v. Canada (M.C.I.) (1997), 36 Imm.L.R. (2d) 226, at page 228, I discussed the deference to be accorded to the IAD's decision with respect to the compliance with the formal requirements of foreign adoption laws as follows:
| On the first issue of whether there was an intent to transfer Manjit from his birth parents to the respondent, the jurisprudence indicates that this Court has shown considerable deference with respect to the IAD's determinations on compliance or non-compliance with the formal requirements of foreign adoption laws. Moreover, the specific question of whether the "intent of transfer" was present, has been addressed in both divisions of this Court. Stone J.A. made the following comment in Hundal, at page 77: |
| That in the proceedings before the board proof of the content of foreign law was a question of fact, is not in dispute. Although scant, there was some evidence in the opinion of the appellant's expert that, under the law of India, intent may be drawn from "presumptive inferences from surrounding circumstances" (Appeal Book, p. 132). It cannot be said, therefore, that the board erred on this aspect of the case. . . . The central issue before the board was whether the adoption was validly made and, in particular, whether on the basis of the evidence the necessary "intent to transfer" was present. On that issue, the board found as a fact that there was an intent to transfer within the meaning of the statute at the time the 1983 ceremony was performed. |
| In the Sharma decision, Justice Wetston observed, at page 56: |
| The issue herein is whether there was any basis for the Appeal Division to have found that in law and in fact that Vaneet was adopted in accordance with the various applicable provisions of HAMA. On the basis of the record before the Appeal Division, this court is unable to determine, with any certainty, whether under Hindu law this would not be a valid adoption, despite the literal interpretive approach urged by counsel for the applicant. In this instance, I am unable to conclude that an error of law was made. The content of the foreign law is a question of fact. How the foreign law is applied is a question of law. I am of the opinion that the application of the foreign law to the facts as found by the Division does not warrant the intervention of this court. |
| (My emphasis.) |
[8] In my view, there was sufficient evidence before the IAD to reasonably allow a finding that the requisite "intent to transfer" was absent in this instance. I accept the respondent's submission that the biological reason for adopting Kulwinder was only one of many considerations taken into account by the IAD, and that it was not determinative of the issue. Hence I am also in agreement with the respondent that this relatively minor error of fact is not sufficient to import judicial review.
[9] Finally, as most of the circumstances reviewed by the IAD were those which preceded and surrounded the adoption, I see no point in waiting for the answer to the question which was certified in Gill v. Canada (M.C.I.) (1996), 122 F.T.R. 251.
[10] For all the above reasons, the application for judicial review is dismissed.
[11] Considering that the definition of "adopted" which the applicant would like to be clarified by the Federal Court of Appeal, is a definition which applies only to matters prior to February 1, 1993, and considering the jurisprudence I have referred to in Shi, above, I do not consider that this matter raises any question of general importance for the purpose of certification.
JUDGE
OTTAWA, ONTARIO
May 25, 1998