Date: 19991117
Docket: IMM-5424-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Applicant,
- and -
MOHINDER SINGH BISLA,
Respondent.
REASONS FOR ORDER
DENAULT J.
[1] This is an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "Appeal Division"), dated September 29, 1998, wherein the Appeal Division allowed the appeal of the Respondent and ordered that the refusal to approve the application for landing made by Gurpreet Singh Bisla and Samanroop Kaur Bisla be quashed as it was not in accordance with the law.
[2] The forty-nine-year old Respondent is a Canadian citizen who was born in India and received landing in Canada in September, 1980, with his wife's sponsorship. He and his wife were married in 1980, and have had no biological children, despite their medical efforts to overcome infertility.
[3] The Respondent sponsored the applications for landing of a nephew, Gurpreet Singh Bisla ("Gurpreet") and a niece Samanroop Kaur Bisla ("Samanroop"). Gurpreet and Samanroop are minors and citizens of India. Gurpreet was born in December, 1987 and Samanroop was born in May, 1990. The Respondent is the natural uncle of both children; his brother is the children's father.
[4] On November 23, 1992, the Respondent and his wife provided a power of attorney to Han Raj Ranwa to adopt Gurpreet on their behalf. The adoption ceremony took place on February 2, 1993, according to the adoption deed executed by Gurpreet's biological parents and the Respondent's attorney. The deed was registered on September 24, 1994.
[5] In 1994, the Respondent and his wife sent a power of attorney dated June 22, 1994, to Kundan Lal Chawla to adopt Samanroop on their behalf. The adoption ceremony took place on September 19, 1994, according to the adoption deed executed and registered on September 24, 1994.
[6] In March, 1995, the Respondent submitted an undertaking of assistance for both children, but the visa officer who heard the case refused the children's application for landing on the grounds that:
| - contrary to subsection 11(vi) of the Hindu Adoptions and Maintenance Act, 1956 (the "HAMA") the children were not given in adoption by their biological father and taken by the Respondent with the intent to transfer each of them to the respondent from the birth family: |
| - the adoption did not create a genuine relationship of parent and child between the Respondent and each child; and |
| - the purpose of the adoptions was to gain the children's admission to Canada as members of the family class. |
[7] The issue at stake before the Appeal Division was whether the Respondent's nephew and niece were properly adopted and met the definition of the word, as set out in section 2(1) of Regulations respecting admission and removal from Canada of persons who are not Canadian citizens (the Immigration Regulations 1978), SOR/78-172:
| 2.(1) In these Regulations, "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. |
2.(1) Dans le présent règlement, "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 personne apparentée. |
| (Applicant's Record, tab D. #1) |
[8] The Appeal Division reviewed the evidence brought forward, took into consideration the infertility of the adopting parents and their wish for children, the severe heart disease of the Respondent's brother, i.e. the children's biological father and his difficulty in caring for the children, the Respondent's support of his adopted children and the arrangements and efforts he had made on their behalf, and concluded that Gurpreet and Samanroop were adopted in accordance with the Regulations. Consequently, the Appeal Division quashed the visa officer's decision which was not in accordance with the law.
[9] As first argument, the Applicant submits that the Appeal Division failed to determine whether the adoptions of the children complied with Section 11(vi) of the HAMA;1 specifically, whether there actually was a giving and a taking in adoption by the parents or guardian concerned. In this regard, the Applicant states that the evidence is that neither the Respondent nor his wife attended at the adoption ceremonies of Gurpreet and Samanroop. The Applicant further submits that the Appeal Division has confused the intent of the biological and adoptive parents to give and take with the required act to give and take the children.
[10] In my view, it was open to the Appeal Division to conclude, on the basis of the evidence before it, that the Respondent, in adopting these children, complied with the Hindu Adoptions and Maintenance Act, 1956. In so far as the Applicant did not contest the power of attorney documents2 issued on behalf of the adopting parents, it was not unreasonable for the Appeal Division to find, even though the Respondent and his wife did not attend the adoption ceremonies of Gurpreet and Samanroop in India, that the children had actually been given by the biological parents and taken in adoption by the Respondent and his wife.
[11] Secondly, the Applicant submits that the Appeal Division failed to determine whether the adoptions created a genuine parent-child relationship as required by the definition of "adopted" in Section 2(1) of the Immigration Regulations, 1978. The Applicant submits that the Appeal Division concluded that this element was satisfied based on the parents' intent and not on the basis of facts.
[12] In my view, this argument cannot stand. Having reviewed several factors as to the genuineness of a parent-child relationship, the Appeal Division found it to exist. This finding is an issue of fact which, in my opinion, is neither perverse, nor capricious, nor made without regard to the evidence.
[13] Finally, the Applicant submits that the Appeal Division failed to determine whether the adoptions were carried out for the purpose of gaining the children's admission to Canada.
[14] This argument cannot stand either. The Appeal Division found that the adoptions were motivated by the Respondent's desire and his brother's to assist each other as well as to satisfy a need that each had.3 Consequently, the Appeal Division found that the children were adopted in accordance with the Immigration Regulations, 1978. In so doing, I am satisfied that the Appeal Division did not find that the purpose of the adoptions was to gain the children's admission to Canada.
[15] For these reasons, I am satisfied that the Court's intervention is not warranted. This application is therefore dismissed. No serious question of general importance needs to be certified pursuant to subsection 83(1) of the Immigration Act.
_________________________
Judge
Ottawa, Ontario
November 17, 1999
__________________1 11. In every adoption, the following conditions may be complied with: (vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth (or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has brought up) to the family of its adoption.
2 Pages 62 to 67 of the Tribunal's Record.
3 Appeal Division's decision, page 4: "the appellant wishes to assist his brother who had medical problems and who faced the likelihood of having difficulties in supporting a large family; he also had his own desire for children. The appellant's brother, Balbir wished to assist his brother in his desire to have children, and as well, sought to give at least two of his children a chance at a better future with his brother."