Date: 19990517
Docket: IMM-4625-98
Ottawa, Ontario, the 17th day of May 1999
PRESENT: THE HONOURABLE MADAME JUSTICE SHARLOW
BETWEEN:
RAM JEERH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The decision of the Appeal Division of the Immigration and Refugee Board is set aside and the matter is referred to a differently constituted panel for rehearing and reconsideration.
Karen R. Sharlow
Judge
Date: 19990517
Docket: IMM-4625-98
BETWEEN:
RAM JEERH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.
[1] Gurnek Singh Jeerh is now 18 years of age and lives in India. He was adopted by the applicant and his wife under the laws of India in 1993, when Gurnek was 12 years of age. On August 21, 1998, the Appeal Division of the Immigration and Refugee Board decided that the applicant could not sponsor his son's application for permanent residence. The applicant seeks judicial review of that decision.
[2] The applicant attempted to sponsor Gurnek's entrance to Canada on the basis that he is a member of the family class with respect to the applicant. To be in that class, Gurnek must be the applicant's "dependent son," as defined in Regulation 2(1). If Gurnek meets the definition of "son" then he clearly is a "dependent son" because at the time of application he was under the age of 19 years and unmarried.
[3] Gurnek is the applicant's "son" under the Regulations if he was "adopted" before he was 19 years of age. For purposes of the Regulations, the word "adopted" has a restricted meaning:
| "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 admission to Canada of any of the person's relatives." |
[4] Thus, Gurnek is the son of the applicant for purposes of the Regulations only if three conditions are met.
[5] The first condition is met if Gurnek was adopted by the applicant in accordance with the laws of India. The tribunal did not comment on this condition and I take it to be undisputed that this condition was met.
[6] The second condition is met if the adoption created a genuine relationship of parent and child between the applicant and Gurnek. The tribunal found that this condition was not met. The reasons for that conclusion are discussed below.
[7] The third condition is met if Gurnek was not adopted for the purpose of gaining admission to Canada for himself or any of his relatives. The tribunal found that this condition was not met, but offered no reasons for that conclusion apart from its conclusion on the second condition. In other words the tribunal, having found that the second condition was not met, inferred that the third condition was not met either. If the adoption did not create a genuine relationship of parent and child, it is reasonable to conclude that the purpose of the adoption was to facilitate Gurnek's immigration to Canada. However, if the tribunal erred in finding no genuine relationship of parent and child, it must also have erred in its conclusion with respect to the third condition.
[8] The facts may be summarized as follows. The applicant came to Canada from India in 1974 and is now a self-employed auto mechanic. He has been married since 1988. He and his wife have three daughters. Two of them were born before the adoption of Gurnek. The third was born about one year later.
[9] The applicant's evidence was that he and his wife decided, after the birth of their second daughter, to adopt a son. In 1992, it was arranged that they would adopt Gurnek, the eldest son of the applicant's first cousin. Gurnek's natural parents are not financially well off. They were motivated to agree to the adoption by the knowledge that Gurnek probably would have better opportunities in life as the son of the applicant.
[10] The adoption ceremony took place in India on November 24, 1993. Because of a fire at the applicant's place of business, he was unable to attend the ceremony. He appointed his friend Parwan Dhami as his attorney for the purpose of the adoption and for the purpose of taking custody of Gurnek in India and seeing to his accommodation and education on the applicant's behalf. In July of 1994, when Mr. Dhami moved to Spain, the attorney was replaced by another friend of the applicant, Mr. Roop Lal Samrai.
[11] After the adoption, Gurnek resided with the attorney and not in the home of his natural parents. He lived in the same village as his natural parents and visited them frequently. The applicant provided financial support to Gurnek and sent him gifts, and maintained contact by telephone. The applicant arranged and paid for the transfer of Gurnek from a public school to a private school that was believed to have higher standards. The applicant visited Gurnek in May of 1996 for two months and returned with his family in November of 1996 for a two month visit. The applicant's wife and youngest daughter visited Gurnek in 1997.
[12] As stated above, the tribunal concluded that there was no genuine relationship of parent and child. The factual foundation for this conclusion is what the tribunal describes as "significant inconsistencies and contradictions" in the applicant's evidence relating to his understanding of Gurnek's scholastic achievements.
[13] In the circumstances of this case, it was inevitable that there would be a separation between the applicant and Gurnek that was long in distance. It has also become long in duration, in part because of the time required by the sponsorship proceedings and this application. It cannot be surprising that the applicant is not as familiar with Gurnek and his every day life as he would be if they were living together. The tribunal itself drew inferences about Gurnek's scholastic achievements that cannot be justified without evidence of the significance of the marks assigned to him.
[14] When the evidence of the applicant is reviewed in its totality in light of the circumstances, nothing that he said is logically inconsistent with the conclusion that the relationship between the applicant and Gurnek is a genuine relationship of parent and child. In the absence of any indication as to the tribunal's view of the remainder of the evidence, I cannot conclude that its decision was reasonably open to it.
[15] I would add that I find it difficult to reconcile the undisputed legal validity of the adoption with the tribunal's conclusion that there is no genuine relationship of parent and child.
[16] The record includes an extensive description of the applicable Indian adoption law which says, among other things, that the legal validity of the adoption depends upon certain formal requirements, described as a ceremony of giving and taking, as well as proof of an intention on the part of the natural parents to give up the child, and an intention on the part of the adoptive parents to take the child. This evidentiary requirement in Indian law reflects the importance of the adoption as an event with substantial legal consequences. The material includes this quotation from Kishori Lal v. Chaltibai; 1959 Supp. 1 SCR 698:
| As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring the property to comparative strangers, or more remote relations, it is necessary that the evidence to support it should be such that it is free from all suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth. |
[17] It seems to me arguable, if the material in the record describing Indian adoption law is correct, that a genuine relationship of parent and child is an essential characteristic of a valid Indian adoption. If that argument is accepted, it would be impossible for an adoption to meet the first condition and not the second condition of the definition in the Regulations. However, in the circumstances it is not necessary for me to reach a conclusion on that point.
[18] This application for judicial review is allowed. The decision of the Appeal Division of the Immigration and Refugee Board is quashed and the matter is remitted for reconsideration by a differently constituted panel.
Karen R. Sharlow
Judge
Ottawa, Ontario
May 17, 1999