Date: 19981009
Docket: IMM-439-98
BETWEEN:
HAZARA SINGH BHINDER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS, J.:
[1] This is an application for judicial review of the decision of Shirley R. Wales, a member of the Immigration Appeal Division of the Immigration and Refugee Board ("Appeal Division") dated January 15, 1998 wherein the Appeal Division dismissed the applicant's appeal from the refusal of the visa officer for a sponsored application for permanent residence for lack of jurisdiction.
[2] The visa officer found that the Indian Hindu Adoptions and Maintenance Act, 1956 prohibits the adoption of a son by a Hindu where the adoptive parent already has a son.
[3] The notice of appeal was filed on March 23, 1994.
[4] A scheduled hearing of the appeal on May 7, 1996 was adjourned. A rescheduled hearing of this appeal on July 1996 was also adjourned. A scheduled hearing of the appeal on May 28, 1997 was again adjourned and finally, the hearing was ultimately scheduled for November 17, 1997.
[5] At the hearing of the appeal, the applicant's counsel sought an adjournment on the ground that he was unable to attend due to illness and also on the ground that his expert witness Varinder Thareja was also unable to attend due to illness.
[6] The Appeal Division found that the applicant had failed to comply with Rule 19 of the Immigration Appeal Division Rules, SOR/93-46 and that the required notice to the respondent had not been provided and there was no summary of the substance of the proposed testimony. At the very beginning of the hearing, the applicant's counsel requested an adjournment based on the appellant's inability to attend, as mentioned on page 575 of the transcript of the hearing.
[7] As we can read on page 575 of the transcript of the hearing, the presiding member did not really answer to the request of adjournment but said:
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PRESIDING MEMBER: I have read the file and there are some jurisdictional issues here and, sir, you may not be aware of all the difficulties in this file because in these materials which you have not had the opportunity to examine there is a certificate indicating that the appellant's son was Baptized in the Christian faith and then there are some materials from the visa office or obtained by the visa office indicating that there were some difficulties with the authenticity of the document. Are you aware of that information ? |
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PRESIDING MEMBER: Well, at this point I would suggest that the most efficient use of our time would be to deal with the issue of jurisdiction and I call on counsel for the appellant to demonstrate how in light of Section 11 of the Hindu Adoptions and Maintenance Act this appeal may be successful and I believe that, sir, you both gentlemen received three case [sic]. One Vodaliya (ph) and then the two decisions regarding Chowdhury both at the Immigration Appeal Board as it then was in the Federal Court of Appeal dealing with Section 11 of the Hindu Adoptions and the Maintenance Act. So if we can first then address the issue of jurisdiction and at this point I understand that the facts which will come before me will be that the appellant purports to be adopting his son's son and if you could demonstrate to me how that can be legally accepted adoption under the terms of the Hindu Adoptions and Maintenance Act to confirm that I have jurisdiction to hear this appeal as the applicant being a member of the family class. |
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[8] As we can see, the presiding member did not answer the request for adjournment and the counsel for the applicant was brought to answer questions on jurisprudence and jurisdiction matters, and the question of adjournment rested unanswered. So the discussions continued between the presiding member and the two counsel on the question of the adoption process in India. |
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[9] On page 583 of the transcript of the hearing, the presiding member asked a question to the applicant's counsel: |
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PRESIDING MEMBER: Yes. Sir, if I could just ask you, I understand the crux of your position to be that it's the Sikh custom concerning the burial rites of the father that forms the basis for essentially the exemption of HAMA in these circumstances and that it's a custom which falls under Section 2(c), Subsection 1(c) of HAMA, a custom or usage as part of that law. Do you have any authority for that position? |
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COUNSEL: Well, as I say, that was information that the expert witness was going to be dealing with. There's another gentleman who has come at the last moment and he's a gentleman for the Sikh Temple and he was just called to try to replace the fellow who's sick. He I believe would be in a position to testify to that effect. |
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PRESIDING MEMBER: What's this position with the Temple? |
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COUNSEL: I believe he's a clergyman. |
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PRESIDING MEMBER: Are you seeking a postponement so that he can provide such testimony? |
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COUNSEL: Yes, I'd very much appreciate that if we could. |
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then the discussion continues between the presiding member and the two counsel while the witness was in the hall. |
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[10] On page 586 of the transcript of the hearing, the presiding member states: |
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(...) In all the circumstances I'm reluctant to grant this postponement request because of the length of time and because of the fact that the request only arose in reply on the issue of jurisdiction. |
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[11] Finally, on page 588 of the transcript of the hearing, the presiding member decided to make a decision on the issue of jurisdiction: |
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I had hoped within the recess to be able to deliver reasons from the bench on the issue of jurisdiction. I have not been able to do so, so I have resumed solely for the purpose of advising that there will be written reasons issued dealing with the issue of jurisdiction. Depending on the outcome of that, there will either be a rescheduling of this matter to take evidence or if the issue of jurisdiction is not found in the appellant's favour then that will dispose of the matter as the applicant then by definition will not have been found to be a member of the family class and the Appeal Division will have no jurisdiction. So if the appellant is successful on the issue of jurisdiction we will resume. If the appellant is not successful on the issue of jurisdiction then the appeal will be dismissed as the Board will lack jurisdiction. (...) |
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MR. MILLAR: (...) I just have one question. Should the member find that the panel does have jurisdiction, that in fact the adoption is valid, will there be a need to resume to adduce additional evidence? |
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PRESIDING MEMBER: Yes, because at this point the authenticity of some of the documents is in dispute and it will then be up to the appellant to prove some of the facts as alleged. In determining the issue of jurisdiction I have been willing to accept that certain evidence could be proved and that may or may not be the case if the appellant is put to the test. |
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MR. MILLAR: So should we resume at a later point the issue of jurisdiction would still come up if it's demonstrated through the evidence adduced at the resumed hearing that the adoption is not valid according to HAMA? |
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PRESIDING MEMBER: Well, the purpose of this part of the hearing was to deal with 11(1) of HAMA --- |
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PRESIDING MEMBER: --- jurisdiction and I'm sure that -- well Member Townshend has acquainted me with the decision that says issues may always arise and be relied upon by the Minister no matter what point in the hearing they arise. |
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[12] Those comments were, at least, confusing and it is clear that there is an intimate relationship between the question of jurisdiction and the merits of the case. In the decision rendered by the Appeal Division on January 15, 1998, on page 6 of the transcript of the hearing, it was stated: |
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Counsel for the appellant argued that the Sikh custom of sons or grandsons performing burial rites for fathers or grandfathers is a custom or usage referred to in section 2(1) (a) of HAMA, and thus HAMA does not apply to this adoption. No evidence was tendered to support this as an accurate statement of Indian law. |
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[13] This statement is difficult to reconciliate with the statement of the presiding member, on page 587 of the transcript of the hearing: |
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Just again for the record for the purpose of clarity I'm also going to enter as Exhibit A-2 the cover letter from appellant's counsel dated October 28th, 1997 and the statutory declaration from the other expert as the second Exhibit A-2 in this matter. I am going to take a few minutes to review the materials and the submissions and again, I'm dealing with the issue of jurisdiction and I will evaluate the submissions regarding the obstacles set forth by 11(1) of HAMA which on its face appears to be an obstacle to the appellant showing that the applicant is a member of the family class. I will also set the these sheets which were provided by appellant's counsel to the side and, sir, if you wish to take them back I don't want to have them sucked in the vortex of this file. |
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[14] The respondent's counsel has admitted before me that it is clear that there is an error in the decision of the Board when it mentions that there is no evidence when this evidence has been provided, as it is mentioned by the presiding member herself, on page 587 of the transcript of the hearing. |
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[15] I believe that the decision made by the Board member dismissing the application for lack of jurisdiction, decided at the same time, on the merits of the application. |
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[16] The applicant was denied the opportunity to have an adjournment and bring an expert witness on the question of adoption process in India. Obviously, the counsel for the respondent would have had also the opportunity to bring some evidence on the same matter and cross-examine the witness. Unfortunately, the Board's decision to deny an adjournment as requested by the applicant on the ground that he was unable to attend due to illness and on the ground that his expert witness was also unable to attend due to illness, has created a real prejudice for the applicant because the decision on the lack of jurisdiction has set aside the whole file and furthermore, the applicant's counsel did not have the opportunity to make representations on the merits of the case. |
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[17] Given that the Board member herself had raised the question of jurisdiction at the very beginning of the hearing, she should have agreed to the request of the applicant's counsel to adjourn to ensure that neither party would suffer prejudice from the decision on jurisdiction. |
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[18] I understand that the applicant's counsel has not followed the rules to request an adjournment to bring expert witnesses before the Board, but this minor problem could have been resolved adequately by an adjournment. |
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[19] For all these reasons, the application for judicial review is allowed. |
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[20] The decision of the Appeal Division is set aside and the matter is to be returned to the Board for a new hearing by a differently constituted panel. |
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[21] Neither counsel recommended certification of a question. No question will be certified. |
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