Federal Court Decisions

     IMM-1985-96

BETWEEN:

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Applicant

     -and-

     SOMA DEVI JOSHI

     Respondent

     REASONS FOR ORDER

JEROME, A.C.J.:

     This is an application for judicial review of a decision of the Immigration and Refugee Board, Appeal Division, dated May 2, 1996, granting the respondent's appeal from a refusal to approve the sponsored application for landing made by Dharam Pal Joshi. At the hearing of this matter in Toronto, Ontario, on February 13, 1997, I took the matter under reserve and indicated that these written reasons would follow.

     Mr. Dharam Pal Joshi, a citizen of India, applied to the Canadian High Commission in New Delhi, India, for permanent resident status in Canada under the sponsorship of the respondent. The application was refused on the ground that Mr. Joshi, the "step-son" of the respondent, was not a member of the family class under the regulations and, as such, could not be sponsored by the respondent. In particular, the visa officer found that Mr. Joshi had not established that he was the son of the respondent as this term applies under subsection 2(1) of the Immigration Regulations, SOR/78-172, as amended. The applicant was notified of this decision by letter on December 18, 1992.

     The respondent filed an appeal to the Appeal Division after the application for landing of Mr. Joshi was refused. The respondent's appeal was heard on April 12, 1995, and subsequent submissions were presented to the Appeal Division at its request. On May 2, 1996, the Appeal Division released its decision on this matter, allowing the appeal of the respondent pursuant to paragraph 77(3)(a) of the Immigration Act. The Appeal Division's findings are summarized in the following passage:

I have considered all of the evidence and submissions in conjunction with the record and I make the following findings of law and fact. In the correspondence of S.N. Kumar advocate, the assertion is made of equal recognition of full and half blood children upon the marriage of their parents. I note that this was not contested by the respondent. According to S.N. Kumar's opinion which quotes Mayne's "Hindu law and usage", 12th edition, page 749, "Hindu law recognizes no difference between the full blood and the half blood except in a competition inter se." Further, the opinion states that the applicant was deemed to be the appellant's lawful son upon the marriage of his father to the appellant. Consequently, I find that the applicant is a son of the appellant and that this mother/son relationship is legally recognized.

I acknowledge that the applicant is not the "natural son" as he was not born to the appellant. However, based on the opinion of S.N. Kumar I find that under Indian law the applicant is deemed to be the "issue" of the appellant, or in the alternative, has a legal status equivalent thereto. Mr. Kumar states that "the relationship between Soma Devi Joshi and Dharam Pal Joshi was already legally recognized as in existence upon the marriage taking place (between the applicant's father and the appellant) after the death of his (the applicant's) natural mother". Thus, I find that as the applicant "has not been adopted by another person" he falls within the definition of "son" as the definition relates to the appellant, and as the term is defined in section 2(1) of the Immigration Regulations, 1978. I find that the applicant is therefore the appellant's lawful son.

In the alternative, had there been no basis on which to make the finding that the applicant is the lawful son of the appellant, I find that he could have been adopted and that there exists sufficient evidence that the applicant had been indeed adopted in accordance with prevailing custom, even though according to the opinion of S.N. Kumar, there could be no adoption "as the legal relationship of mother and child had already been created". Although I accept that the adoption is of no legal consequence, I note that with the enactment of the Hindu Adoptions and Maintenance Act, 1956 customary law was codified so that the adoption according to custom in which a "giving and taking" ceremony tool place, obtained the force of law.

I find that such adoption created a parent/child relationship between the applicant and the appellant which has been corroborated by means of documentary proof. [footnotes omitted]

     The applicant now seeks to have that decision set aside on the grounds that the Appeal Division's decision was based on an error of fact and law. The applicant argues that the Appeal Division made an error of law in determining that Mr. Joshi was the "son" of the respondent within the meaning of the Immigration Regulations. In that alternative, the applicant argues that there was not a sufficient factual basis upon which the Appeal Division could conclude that an adoption within Hindu tradition had ever actually taken place between Mr. Joshi and the respondent.

     Subsection 2(1) of the Immigration Regulations defines a son as follows:

"son" means, with respect to a person, a male

(a) who is the issue of that person and who had not been adopted by another person, or

(b) who has been adopted by that person before having attained 19 years of age:

Adoption is also defined in the regulations as follows:

"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

It is clear, therefore, that an applicant may be considered the son of a sponsor either where he is the issue of the sponsor or where he has been adopted in accordance with the laws of the country of origin.

     I agree with the applicant that the Board's finding that Mr. Joshi was the issue of the respondent was incorrect. In my opinion, the word "issue" has clear meaning in Canadian law and refers only to those children who are the progeny of the parents. This term is not open to interpretation according to the country of origin and must be considered in light of Canadian law. The regulations, and in particular subsection 2(1), are clear that only those children who are the progeny of their parents or the legal equivalent through adoption qualify under family class.

     I am of the opinion, however, that the Board was correct in determining in the alternative that Mr. Joshi was the adopted son of the respondent. The evidence was clear that under Hindu tradition in circumstances where a father remarried, legal adoption was not necessary since the child was customarily "adopted" by the new wife and became her legal son. The Federal Court of Appeal has held that the content of foreign law is an issue of fact and I can see no reason to interfere with the Appeal Division's findings regarding customary Hindu law: Canada (Minister of Employment and Immigration) v. Hundal (1994), 167 N.R. 75. Furthermore, there was sufficient evidence, including oral testimony, upon which the Appeal Division could base its finding that under Indian customary law the ceremony of giving and taking created a legal relationship between Mr. Joshi and the respondent equivalent to adoption.

     The result is that the Appeal Division's decision should stand. While the Board did err in finding Mr. Joshi to be the issue of the respondent it was an inconsequential legal error. Under the definition of son in the regulations there are two categories under which an applicant may qualify. Given the Appeal Division's analysis of adoption and the finding that Mr. Joshi was the adopted son of the respondent according to the customary law, this error would not change the outcome of the decision. Such an error does not justify returning a decision where it would have no effect on the outcome: Canadian Cable Television Assn. v. American College Sports Collective of Canada, Inc., [1991] 3 F.C. 626 at page 651 (F.C.A.).

     For these reasons, the application is dismissed.

O T T A W A

March 20, 1997                      "James A. Jerome"

                             A.C.J.