Date: 20000609
Docket: IMM-3811-99
BETWEEN:
PAUL SINGH CHAHAL,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MCKEOWN, J.
[1] The applicant (also called the "appellant" or the "husband") seeks judicial review of a decision of a member of Immigration Appeal Division (IAD) Of the Immigration and Refugee Board dated July 13, 1999, wherein he dismissed the applicant"s appeal from the Visa Officer"s refusal of the sponsored application of Amandeep Kaur Chahal (the child) for landing.
[2] The issues are whether the IAD erred (1) in its application of section 8of The Hindu Adoptions and Maintenance Act, 1956 ("HAMA"), (2) in holding that the second adoption ceremony give and take was a fabrication contrary to the sworn testimony of the husband and wife, (3) in failing to set out in its reasons any reference to the numerous letters, photographs, remittances to adopt the daughter, telephone calls and like evidence and (4) in ignoring the explanations of the appellant for the delay in making the sponsorship application and in applying to adopt the daughter earlier which all relates to the genuine parent child relationship.
[3] In my opinion, the IAD committed no reviewable error in deciding that the child was not adopted within the meaning of that term at the relevant time and as such sponsored application for landing in Canada as a member of the family class was not allowed. Pinard, J. stated in The Minister of Citizenship and Immigration v. Sohal (IMM-1943-96), January 6, 1997, at page 1 that:
| "The jurisprudence indicates that the IAD is required to look not only at whether a sponsored applicant for permanent residence in Canada was adopted in conformity with the legal requirements of the country in which the adoption took place, but also whether, in accordance with the requirements of subsection 2(1) of the Immigration Regulations, 1978 , the factual circumstances indicate that the relationship of parent and child was created as a result of that adoption." |
[4] In the case before me, the IAD correctly concluded that in addition to examining whether the child had been adopted within the meaning of HAMA, the IDA had to decide whether a genuine parent and child relationship had been created between the applicant and his wife and the child. The IAD reviewed the provision of HAMA subsections 8 and 11(6) and came to a decision that there was no adoption. In my view, section 8 is not restricted to an adoption by a female for herself. Section 11(6) requires both the husband and wife"s consent for a third party to take the child. Mr. Justice Weston correctly set out the law in Canada (M.C.I.) v. Sharma (1995), 101 F.T.R. 54 at 56 that:
| "The content of the foreign law is a question of fact. How the foreign law is applied is a question of law". |
I am of the opinion, that the application of the foreign law to the facts as found by the IAD does not warrant the intervention of this Court.
[5] It was open to the IAD to find on the evidence that the "second adoption" was a fabrication. In any event there is no evidence that the natural mother intended to give the child on the second adoption because she believed she had already given the child at the first adoption. A requirement of the valid adoption under HAMA is that the natural mother intended to give the child at the adoption ceremony.
[6] On the third issue raised by the applicant"s there is no need for the IAD to review in its reasons all the evidence. The IAD did not dispute that the appellant and his wife showed a strong emotional commitment to the applicant.
[7] The IAD stated notwithstanding this they found "the appellant"s explanation of when and why they adopted the applicant hard to accept". It was reasonably open to the IAD to make this finding.
[8] The IAD also did not accept the appellant"s explanation for the delays in adoption and sponsorship. Again the IAD findings are reasonable on whether a genuine relationship of parent and child was created by the adoption. There was good reason in the evidence for the IAD to find that there was a lack of reasonable explanation of events surrounding the adoption.
[9] The IAD conclusions were not based on any perverse or capricious findings or without regard to the evidence before them.
[10] Neither questions submitted by the parties is a serious question of general importance and no question will be certified. The application for judicial review is dismissed.
(Sgd.) "William P. McKeown"
Judge
June 9, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3811-99
STYLE OF CAUSE: PAUL SINGH CHAHAL
v.
MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: June 8, 2000
REASONS FOR ORDER OF MCKEOWN, J.
DATED: June 8, 2000
APPEARANCES:
Mr. Ramzan Jussa FOR APPLICANT
Ms. Rama Sood FOR RESPONDENT
SOLICITORS OF RECORD:
Ramzan Jussa
Barrister & Solicitor
Vancouver, BC FOR APPLICANT
Morris Rosenberg
Deputy Attorney General
of Canada FOR RESPONDENT