BETWEEN:
AND IMMIGRATION
and
REASONS FOR JUDGMENT
Pinard J.
[1] This is an application for judicial review on behalf of the Minister of Citizenship and Immigration of the decision of a member of the Immigration Appeal Division of the Immigration and Refugee Board (the “IAD”), dated May 8, 2006, which determined that Mr. Sarabjit Singh Nahal’s adoption of the now 17 year old Ms. Tajinder Kaur was genuine and not entered into primarily for the purpose of acquiring any status or privilege under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA), and therefore satisfied the definition of “dependant child” for application of permanent residence in Canada.
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[2] The respondent, Mr. Nahal, was born in India, obtained permanent residence status in Canada in 1987, and three years later sponsored his wife from India.
[3] After travelling to India in December 2000, the Nahals decided to adopt the almost 12 year old daughter, Tajinder Kaur, of family friends. They asked the natural parents if they could adopt her and after a refusal, the natural parents agreed.
[4] According to the respondent, the adoption ceremony took place on February 28, 2001, but the deed of adoption was registered on March 5, 2001.
[5] The Nahals also gave power of attorney to Mrs. Nahal’s father, Gurmej Singh, to provide for Tajinder’s care in the Nahals’ absence.
[6] In early 2002, Tajinder applied for a Canadian permanent residence visa sponsored by Mr. Nahal.
[7] On April 25, 2005, a visa officer interviewed Tajinder, her natural parents, her adoptive father and his power of attorney. The officer determined that Tajinder was not a member of the family class under section 4 and paragraph 117(1)(b) of the Immigration and Refugee Protection Regulations, DORS/2002-227 (the Regulations) because the officer found that the adoption was not genuine nor was it in Tajinder’s best interests pursuant to paragraphs 117(1)(c) and (d), and therefore did not meet the requirements of the IRPA. Her application was denied.
[8] As the sponsor of a refused applicant falling under the family class, Mr. Nahal appealed the officer’s decision to the IAD, pursuant to subsection 63(1) of the IRPA. The IAD heard the appeal on May 2, 2006 and reversed the visa officer’s original decision on May 8, 2006.
[9] Although the relevant application for permanent residence was begun under the previous Immigration Act of 1978, section 190 of the new IRPA states that applications pending immediately before the coming into force of the new IRPA are governed by the new IRPA.
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[10] The relevant provisions of the Regulations read:
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3. (2) For the purposes of these Regulations, “adoption”, for greater certainty, means an adoption that creates a legal parent-child relationship and severs the pre-existing legal parent-child relationship.
4. For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act.
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3. (2) Pour l’application du présent règlement, il est entendu que le terme « adoption » s’entend du lien de droit qui unit l’enfant à ses parents et qui rompt tout lien de filiation préexistant.
4. Pour l’application du présent règlement, l’étranger n’est pas considéré comme étant l’époux, le conjoint de fait, le partenaire conjugal ou l’enfant adoptif d’une personne si le mariage, la relation des conjoints de fait ou des partenaires conjugaux ou l’adoption n’est pas authentique et vise principalement l’acquisition d’un statut ou d’un privilège aux termes de la Loi.
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[11] The applicant submits that the IAD erred in law when it found the adoption to be genuine under section 4 of the Regulations, in that the IAD applied the incorrect legal test. I agree.
[12] Section 4 of the Regulations is dealt with in paragraphs 23 and 24 of the impugned decision, which read as follows:
[23] In regards to section 4 of the Regulations, in order for a foreign national to be disqualified, the preponderance of reliable evidence must demonstrate that the adoption is not genuine and was entered into for the purpose of acquiring a status or privilege under the Act. In order to succeed, one need only establish that one of the prongs of the test has not been met.
[24] I have examined the evidence in regards to the adoption and am of the opinion that the applicant was legally and validly adopted: there is evidence from the applicant and the appellant’s wife that there was a giving and taking, and I accept the testimony of the appellant’s wife regarding the date of the Deed of Adoption being executed on March 5, 2001 and that find it otherwise conforms with HAMA law [Hindu Adoptions And Maintenance Act, 1956]. As one prong of the section 4 bad faith test has been met, I find that the applicant is an adopted child.
[13] It appears, therefore, that the IAD found that the adoption was genuine because it found that it was legally solemnized, without considering other factors to determine the bona fides of the adoption. This interpretation was rejected in Ni v. Minister of Citizenship and Immigration, 2005 FC 241, in the context of the genuineness of a marriage: “. . . to interpret “genuine” as “legal” would render section 4 of the Regulations redundant”.
[14] As opined by my colleague Justice Russell in Frounze v. Minister of Citizenship and Immigration, 2004 FC 331, at paragraph 32:
. . . Hence, in my opinion, whenever the word “adopted” comes up for consideration under the Immigration Regulations, it is not sufficient to consider the bare legality of an adoption and the decision maker must also determine whether a genuine relationship of parent and child was created.
[15] In the case at bar, in its consideration and application of section 4 of the Regulations, the IAD erroneously addressed the question of whether the adoption was valid or legal in the local country and did not analyze whether there was a genuine parent-child relationship created. Relevant factors to be considered under the section 4 analysis such as the circumstances of the adoption, the whereabouts of the child’s natural parents and their personal and living circumstances, financial and emotional support provided by the adoptive parents, the reasons for the adoption, and the social and legal practices in the local country, were not considered (Operations Manual OP3, Sub 7.8 (“How to identify an adoption of convenience”)).
[16] On the applicable standard of review of correctness (Chieu v. Canada (M.C.I.), [2002] 1 S.C.R. 84), I conclude, therefore, that the impugned decision is not correct and must be set aside.
[17] Consequently, the IAD’s decision is set aside and the matter is sent back for re-determination by another IAD member in a manner consistent with these Reasons.
[18] Counsel for the respondent proposed the following questions for certification:
1. In assessing the best interests of an adopted child under the Immigration and Refugee Protection Regulations section 117(2) and section 117(3), does the Immigration Appeal Division have the obligation under Immigration and Refugee Protection Act section 67(1) to consider the continuing best interests of the child, as they exist as of the date of the hearing?
2. Is a decision-maker bound to consider Immigration and Refugee Protection Regulations section 4 and section 117(3) in a sequential manner, such that a determination must first be made that the adoption is genuine and/or was not entered into primarily for the purposes of acquiring a status or privilege under the IRPA, before compliance under Regulations 117(2) and 117(3) can be assessed?
3. Does a finding that an adoption creates a genuine parent-child relationship pursuant to subsection 117(3)(c) of the Immigration and Refugee Protection Regulations imply that a finding has been made that an adoption is genuine, pursuant to Regulations section 4?
[19] The first question above does not arise in the present case as in an appeal of an application to sponsor a member of the family class, section 65 of the IRPA prohibits the IAD from considering the best interest of the child and humanitarian and compassionate considerations pursuant to section 67 of the IRPA unless the IAD has already decided that the foreign national is a member of the family class (Xu v. Minister of Citizenship and Immigration, 2005 FC 1575 and Yen v. Minister of Citizenship and Immigration, 2005 FC 1307).
[20] With respect to the second question above, I agree with counsel for the applicant that the sequence of assessing section 4 and section 117 of the Regulations is irrelevant to the determination of the issues in the underlying judicial review application and does not arise as an issue in this case. Here, the IAD clearly erred in failing to make any determination with respect to the genuineness of the adoption pursuant to section 4 of the Regulations.
[21] Finally, concerning the third question above, it ought not be certified for the same reasons set out above for refusing certification of the second question. Furthermore, this third question does not arise in the case at bar, as I have found that not only did the IAD fail to make any assessment with respect to the genuineness and bona fides of the adoption pursuant to section 4, but that the IAD erred in misinterpreting and misapplying the test in section 4 by making a finding with respect to the legality of the adoption instead.
[22] Consequently, there is no certification.
Ottawa, Ontario
January 30, 2007
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3092-06
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND
IMMIGRATION v. SARABJIT SINGH NAHAL
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 10, 2007
REASONS FOR JUDGMENT: Pinard J.
DATED: January 30, 2007
APPEARANCES:
Ms. Helen Park FOR THE APPLICANT
Mr. Zool K. B. Suleman FOR THE RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE APPLICANT
Deputy Attorney General of Canada
Zool K. B. Suleman FOR THE RESPONDENT
Vancouver, British Columbia