Date: 19971219
Docket: IMM-570-97
BETWEEN:
INDERPAL SINGH DHALIWAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
[Delivered from the Bench at Calgary, Alberta
on Wednesday, September 17th, 1997 as edited]
CAMPBELL, J.
[1] This application attacks a decision of the Appeal Division finding that the "adopted child" applicant should not gain entry as the appellant's son.
[2] There is not much contest on a wide range of issues here. The facts are largely uncontested. The laws are largely uncontested. Thus, I am only required to briefly say that Mr. Justice MacKay"s decision in Canada (Minister of Citizenship and Immigration) v. Edrada, (1996), 108 F.T.R. 60 establishes that there were two hurdles to cross for the appellant to succeed before the Appeal Board. The first hurdle is to consider whether the foreign legal requirements of adoption are met; and the second is to determine whether the relationship of the parent and child has been established between the parent and the adoptee as required under s.2(1) of the Immigrations Regulations, 1987.
[3] On the first hurdle, there is an outstanding debate as to the state of the law in India. The Appeal Division made a finding on this state of the law and basically came to the conclusion that a severance of the parent and child relationship is required before true intention to adopt can be shown. Frankly, I do not want to get into that debate because it is not useful since his case turns mainly on the second criteria, and that is whether there has been the establishment of a genuine adoptive relationship in Canada.
[4] On the second point, the Appeal Division made a number of critical findings of fact which are not contested, although the argument has been made that the Appeal Division could have come to different conclusions.
[5] But looking at the facts, I cannot say that any of the conclusions reached are in clear error. They are interpretive findings, not unwarranted, not erroneous, and are not based on extraneous considerations.
[6] The Appeal Division"s conclusion that no genuine adoptive relationship had been established is based on these facts: neither the natural parents nor the adoptive parents, at the time of the alleged adoption, had the intention to transfer the applicant child from his natural parents to the adoptive parents; the applicant, after the adoption, continued to reside with his natural parents; the appellant did not file an Undertaking of Assistance on behalf of the applicant for more than eight months after the alleged adoption; a year later in June, 1988, the appellant and his wife withdrew the Undertaking of Assistance on behalf of the applicant; according to the appellant's testimony this took place because of the separation of he and his wife in June of 1988; the appellant and his wife reconciled in January of 1989 however did not file an Undertaking of Assistance on behalf of the applicant until late 1990.
[7] On reviewing these facts, I find there is no room for misinterpretation, and, further, regarding the Appeal Division"s findings of other facts on the first hurdle, I do not think that the weight of those facts detract from the Appeal Division"s findings on the second hurdle. Therefore, I cannot see any error in the Appeal Division"s conclusion on the second hurdle that the adoption does not conform with Subsection 2(1) of the Regulations , and accordingly I deny this application.
Douglas R. Campbell
Judge
OTTAWA, ONTARIO