Federal Court Decisions

     IMM-1943-96

BETWEEN:

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Applicant

     - and -

     TALWINDER SINGH SOHAL

     Respondent

     REASONS FOR ORDER

PINARD J.

         The applicant seeks judicial review of a decision of the Appeal Division of the Immigration and Refugee Board ("IAD") dated May 23, 1996, in which the Appeal Division allowed the appeal of the respondent from a refusal to approve the sponsored application for landing made by Manjit Singh Sohal.

         In my opinion, the IAD committed no reviewable error in deciding that Manjit Singh Sohal was "adopted" within the meaning of that term at the relevant time, and that as such his sponsored application for landing in Canada as a member of the family class should be allowed. The jurisprudence indicates that the IAD is required to look not only at whether a sponsored applicant for permanent residence in Canada was adopted in conformity with the legal requirements of the country in which the adoption took place, but also whether, in accordance with the requirements of subsection 2(1) of the Immigration Regulations, 1978, the factual circumstances indicate that the relationship of parent and child was created as a result of that adoption.¹

         In the case at bar, the presiding officer at the IAD hearing correctly concluded that in addition to examining whether Manjit had been "adopted" within the meaning of The Hindu Adoptions and Maintenance Act, 1956 ("HAMA"), she had to decide whether a parent and child relationship had been created between the respondent and Manjit.

         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.)

         In my view, there was evidence before the IAD that allowed it to conclude that the requisite intent to transfer Manjit from his natural parents to the respondent was indeed present.

         Furthermore, it is clear that the presiding officer at the respondent's hearing before the IAD addressed herself to the second issue of whether a parent-child relationship was created between Manjit and the respondent. After going through a thorough analysis of the evidence before her, she concluded that such a relationship had in fact been created. This was a finding of fact that was within the Appeal Division's jurisdiction to make. In my view, it cannot be said that this finding was perverse or capricious, or made without regard to the evidence.

         For the foregoing reasons, this application for judicial review will be denied.

This is not a matter for certification pursuant to subsection 18(1) of the Federal Court Immigration Rules, 1993.

OTTAWA, Ontario

January 6, 1997

                                

                                         JUDGE

__________________

     ¹      See for example Singh v. Canada (M.E.I.) , [1990] 3 F.C. 37 (F.C.A.); Canada (M.E.I.) v. Hundal (1994), 167 N.R. 75 (F.C.A.) (hereafter Hundal); 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.) (hereafter Sharma) and Canada (M.C.I.) v. Edrada (1996), 108 F.T.R. 60 (F.C.T.D.).