Date: 19990907
Docket: IMM-6217-98
OTTAWA, ONTARIO, THIS 7th DAY OF SEPTEMBER 1999
PRESENT: THE HONOURABLE MR. JUSTICE LUTFY
BETWEEN:
KAMAL-KISHOR MODY
CHANDANO MODY
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON the applicants" application for judicial review of the decision of the Appeal Division of the Immigration and Refugee Board dated November 12, 1998;
UPON review of the parties" submissions and the hearing of August 31, 1999 in Toronto, Ontario;
IT IS HEREBY ORDERED THAT:
This application for judicial review is dismissed.
"Allan Lutfy"
J.F.C.C.
Date: 19990907
Docket: IMM-6217-98
BETWEEN:
KAMAL-KISHOR MODY
CHANDANO MODY
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
| _. In its decision of November 12, 1998, the Appeal Division of the Immigration and Refugee Board concluded that Jemini Kamalkishore Mody was not the adopted daughter of the applicants and not a member of the family class.1 The applicants now seek judicial review of the Appeal Division"s decision. |
| _. Ms. Mody was born on April 7, 1983. Her natural father is the brother of the female applicant in this proceeding. The applicants" only meeting with Ms. Mody was during a three-month visit to India in 1990-91. In January 1993, the applicants purported to adopt their niece in accordance with the Hindu Adoptions and Maintenance Act, 1956 in India. |
| _. The applicants sponsored Ms. Mody"s application for permanent residence as a member of the family class. This required that Ms. Mody be shown to be the adopted daughter of the applicants. In subsection 2(1) of the Immigration Regulations, 1978,2 "adopted" is defined as follows: |
"adopted" means a person who is adopted in accordance with the laws of a province or of a country other than Canada or any political subdivision thereof, where the adoption creates a genuine relationship of parent and child, but does not include a person who is adopted for the purpose of gaining admission to Canada or gaining the admission to Canada of any of the person"s relatives ;
" 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 personnel apparentée ;
| _. The parties agreed that the definition of "adopted" contemplates a twofold test. The tribunal must first consider whether the foreign legal requirements for adoption were complied with. Secondly, the tribunal must determine whether a genuine relationship of parent and child has been created between the adopting parent and the adoptee.3 |
| _. Even assuming that Ms. Mody"s adoption was fully in compliance with the applicable Indian legislation, the applicants have failed to establish any reviewable error in the Appeal Division"s decision that the adoption did not create a genuine relationship between the adoptive parents and Ms. Mody. |
| _. The applicants have never seen Ms. Mody since their initial visit with her natural family in India in 1990-91. They did not attend her adoption ceremony in 1993. Their reasons for adopting her, and the delay of some two years in doing so, were sketchy at best. Mr. Mody"s uncertainty as to the date of the adoption ceremony was further complicated by his statement that Ms. Mody"s younger sister was not yet born when he and his wife visited India in 1990-91. The documentary evidence indicates that the younger sibling was born on March 25, 1989. The applicants hoped that Ms. Mody would influence their two Canadian sons to adhere to the principles of the Hindu faith. Yet, Ms. Mody continues to attend "convent school" in India where she resides with her natural parents. The evidence concerning the applicants" alleged financial support for Ms. Mody and their telephone and written communications with her is weak. In short, there is no reason to interfere with the decision under review. |
| _. This application for judicial review will be dismissed. Neither party suggested the certification of a serious question. |
"Allan Lutfy"
J.F.C.C.
Ottawa, Ontario
September 7, 1999
__________________1 The appeal was brought before the Appeal Division, pursuant to paragraph 77(3)(a ) of the Immigration Act, R.S.C. 1985, c. I-2, from the decision of a visa officer and was dealt with as a de novo hearing.
3 See Canada (Minister of Citizenship and Immigration) v. Edrada (1996), 108 F.T.R. 60, per MacKay J. at paragraph 17; and Canada (Minister of Citizenship and Immigration) v. Sharma (1995), 101 F.T.R. 54, per Wetston J. at paragraph 11.