IMM‑120‑06
2006 FC 1362
Amarjit Kaur Dhindsa, Rajwinderpal Kaur Dhindsa, Lakhwinderpal Singh Dhindsa (Applicants)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Dhindsa v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, Gibson J.—Ottawa, October 29; November 10, 2006.
Citizenship and Immigration — Status in Canada — Permanent Residents — Judicial review of immigration officer’s decision deleting alleged adopted daughter (Rajwinderpal) from principal applicant’s sponsored application for permanent residence in Canada on ground requirements of Hindu Adoptions and Maintenance Act, 1956 (Adoption Act) not met — Also found adoption not creating “genuine” parent‑child relationship — Therefore, Rajwinderpal not considered “dependent child” as defined in Immigration and Refugee Protection Regulations (Regulations), s. 2 — Pursuant to Adoption Act, s. 11(vi), in order to be valid, adoption had to involve actual giving of child by biological parents, taking of child by adoptive parents, with intent to transfer child from child’s birth family — No evidence before officer as to “giving” by biological parents, relationship with adoptive parents — Concept of “genuineness” in Regulations, s. 4 examined — If purported adoption found invalid, purported adopted child not family class member capable of being included in putative parent’s application for immigration to Canada — Given evidence, officer’s conclusions reasonable — Application dismissed.
Citizenship and Immigration — Immigration Practice — Judicial review of immigration officer’s decision deleting alleged adopted daughter (Rajwinderpal) from principal applicant’s sponsored application for permanent residence in Canada on ground physical giving, taking in connection with claimed adoption, as required by Hindu Adoptions and Maintenance Act, 1956, not performed — Given officer’s deletion of Rajwinderpal’s name from principal applicant’s application, Immigration Appeal Division of Immigration and Refugee Board no longer had jurisdiction to consider merits of deletion, pursuant to Immigration and Refugee Protection Act, s. 65 — Nonetheless, Federal Court retaining jurisdiction to consider merits of deletion, adjudicate thereon.
This was an application for judicial review of a decision of an immigration officer at the Canadian High Commission in New Delhi, India, whereby the alleged adopted daughter (Rajwinderpal) was deleted from the principal applicant’s sponsored application for permanent residence in Canada. The principal applicant’s son was the sponsor. The principal applicant alleged that in 1993, she and her late husband took Rajwinderpal in adoption in accordance with the Hindu Adoptions and Maintenance Act, 1956 (Adoption Act) and that they observed all necessary rites and rituals for a Hindu adoption. Rajwinderpal’s biological parents allegedly gave her in adoption although no adoption deed was registered then. After the principal applicant’s husband died, the adoption was registered in order to protect Rajwinderpal’s inheritance rights. Rajwinderpal’s biological parents lived in the home of the principal applicant and her husband prior to the date of the alleged adoption until Rajwinderpal’s biological parents moved out in 1995 or 1996.
The immigration officer essentially found that a physical giving and taking in connection with the claimed adoption as required by the Adoption Act was not performed and that the adoption did not create a genuine parent‑child relationship. Therefore, Rajwinderpal could not be considered a “dependent child” as defined in section 2 of the Immigration and Refugee Protection Regulations (Regulations). The issues were whether the officer erred in (1) finding that Rajwinderpal was not a dependent child of the principal applicant; and (2) informing the applicants that, since Rajwinderpal was not a member of the family class, the principal applicant’s sponsor had no right of appeal under Immigration and Refugee Protection Act (Act), subsection 63(1) to the Immigration Appeal Division.
Held, the application should be dismissed.
(1) Pursuant to section 11(vi) of the Adoptions Act, in order to be valid, the adoption of Rajwinderpal by the principal applicant and her husband in 1993 had to involve the actual giving of the child by her biological parents and the taking of the child in adoption by her adoptive parents, with intent to transfer the child from the child’s birth family. There was no evidence whatsoever before the officer as to a “giving” by Rajwinderpal’s biological parents, who lived in the same home as the purported adoptive parents until 1995. There was also no evidence regarding Rajwinderpal’s relationship with her biological parents and with her purported adoptive parents during the time between the purported adoption and the time when the biological parents left the common home. Therefore, it was reasonably open to the officer to conclude that the giving and taking in adoption required by section 11(vi) of the Adoption Act had not been established to her satisfaction and to conclude that there was insufficient evidence to show that the adoption was “genuine”. The concept of “genuineness” is reflected in section 4 of the Regulations and requires that in order for an allegedly adopted child not to be considered an adopted child under that provision, there must be both a finding of lack of genuineness and a finding that the adoption was “entered into primarily for the purpose of acquiring any status or privilege under the [Immigration and Refugee Protection] Act”. Because there was no finding that the purported adoption was entered into for the purpose of acquiring any status or privilege under the Act, the officer’s finding of a lack of “genuine” parent‑child relationship was of no consequence.
(2) It was open to the officer to delete Rajwinderpal from the principal applicant’s application for immigration to Canada. An individual purporting to be an adopted child will not be a proper member of the family class capable of being included in a putative parent’s application for immigration to Canada if the purported adoption is found not to be in accordance with the law, as was the case here. However, the officer had no basis to reject the principal applicant’s own application, which turned on entirely different facts, not evaluated at the moment of rejection of Rajwinderpal’s qualifications. The Immigration Appeal Division of the Immigration and Refugee Board no longer had jurisdiction to consider the merits of the deletion, particularly humanitarian and compassionate considerations, in the very limited circumstances outlined in section 65 of the Act, flowing from the deletion. Nevertheless, the Federal Court retained jurisdiction to consider the merits of the deletion and to adjudicate on that decision.
statutes and regulations judicially
considered
Hindu Adoptions and Maintenance Act, 1956 (No. 78 of 1956), ss. 5, 11(vi), 12, 16.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 12(1), 63(1), 64(3), 65.
Immigration and Refugee Protection Regulations, SOR/2002‑227, ss. 2 “dependent child”, 4 (as am. by SOR/2004‑167, s. 3(E)), 116, 117.
cases judicially considered
applied:
Liu v. Canada (Minister of Citizenship and Immigration) (2003), 231 F.T.R. 148; 35 Imm. L.R. (3d) 79; 2003 FCT 375; Canada (Minister of Citizenship and Immigration) v. Sharma (1995), 101 F.T.R. 54 (F.C.T.D.).
APPLICATION for judicial review of a decision of an immigration officer whereby the alleged adopted daughter was deleted from the principal applicant’s sponsored application for permanent residence in Canada on the basis that the adoption was not genuine and the alleged adopted daughter was not a “dependent child” as defined in section 2 of the Immigration and Refugee Protection Regulations. Application dismissed.
appearances:
Jaswant Singh Mangat for applicants.
Judy Michaely for respondent.
solicitors of record:
Mangat & Company, Mississauga, for applicants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Gibson J.:
INTRODUCTION
[1]These reasons follow the hearing of an application for judicial review of a decision of an immigration officer (the officer) at the Canadian High Commission in New Delhi, India whereby the officer, following an interview with Amarjit Kaur Dhindsa (the principal applicant) and Rajwinderpal Kaur Dhindsa, who was alleged to be the adopted daughter of the principal applicant, deleted Rajwinderpal Kaur Dhindsa from the principal applicant’s sponsored application for permanent residence in Canada. The decision is dated October 19, 2005.
[2]Lakhwinderpal Singh Dhindsa is the son of the principal applicant and is her sponsor. He was earlier found eligible to sponsor the principal applicant.
[3]Early on in the hearing of this application for judicial review, counsel for the respondent objected to the inclusion of Lakhwinderpal Singh Dhindsa as an applicant. The objection was raised in the written materials filed on behalf of the respondent. No position was taken on behalf of the applicants in written materials or at the hearing of the application. I am satisfied that the objection is well taken. My order disposing of this application for judicial review will delete Lakhwinderpal Singh Dhindsa as an applicant.
BACKGROUND
[4]The principal applicant alleges that she and her late husband took Rajwinderpal Kaur Dhindsa, born January 15, 1984, in adoption in 1993 in accordance with the Hindu Adoptions and Maintenance Act, 1956 [No. 78 of 1956]. The principal applicant further alleges that she and her husband observed all necessary rites and rituals essential for a Hindu adoption. Rajwinderpal Kaur Dhindsa’s biological father and mother allegedly gave her in adoption. No adoption deed was registered at the time of the adoption and it would appear to be not in dispute that no such registration was required to perfect the alleged adoption.
[5]The principal applicant’s husband died on October 9, 1996. The principal applicant alleges that, in order to protect the inheritance rights of her allegedly adopted daughter, she then determined to register the adoption and an adoption deed was in fact registered on January 1, 1997.
[6]From before the date of the alleged adoption, Rajwinderpal Kaur Dhindsa and her biological father and mother lived in the same home as the principal applicant and her husband. They continued to do so until Rajwinderpal Kaur Dhindsa’s biological parents moved out of the home in 1995 or 1996.
THE DECISION UNDER REVIEW
[7]The substance of the decision under review is in the following terms:
According to the Deed of Adoption dated 10 Jan 1997 provided to our office, you adopted, Rajwinderpal Kaur, in 1993 as per the Hindu rites and rituals. During the interview both you, and Rajwinder Kaur stated that she was adopted in 1993. During the interview on 18 Oct 2005 you stated:
“In 1995 they (Balvir and Puran Singh) shifted to Maler Kotla, and my husband expired in 1996, after that I decided that tomorrow my son or my daughter in‑law should not have any objections so I went to the courts and got the papers drafted for the adoption.”
You also stated that you, your family and your sister (Rajwinderpal Kaur’s mother), and her family lived together until 1996.
I am not satisfied that a physical giving and taking [in] connection with your claimed adoption, as required by section 11(vi) of the Adoptions Act, was performed in 1993. I am also not satisfied that the adoption created a genuine parent‑child relationship as her real parents were living with you at the time of the adoption.
Accordingly Rajwinderpal Kaur is not a member of the family class described in section 117(1)(b) of the Immigration and Refugee Protection Regulations.
Given the foregoing, I conclude that Rajwinderpal Kaur is not a “dependent child” as defined in section 2 of the Immigration and Refugee Protection Regulations.
Since Rajwinderpal Kaur is not a dependent child according to the Immigration and Refugee Protection Regulations, I have deleted her from your application.
THE LEGISLATIVE AND REGULATORY SCHEME
[8]The provisions of law relevant to this application for judicial review are extensive and reasonably complex. They are set out in full in the Schedule to these reasons.
THE ISSUES
[9]In his memorandum of fact and law, counsel for the applicants identified three issues: first, whether, on the facts before the officer, the officer erred in law in that he deleted Rajwinderpal Kaur Dhindsa from her alleged adoptive mother’s, the principal applicant’s, application, concluding that she was not the adopted daughter of the principal applicant; secondly, whether the deletion of Rajwinderpal Kaur Dhindsa from the principal applicant’s application and thus the rejection of Rajwinderpal Kaur Dhindsa’s application to immigrate by the officer has the effect of depriving the sponsor of a right to appeal under subsection 63(1) of the Immigration and Refugee Protection Act1(the Act)and thus ousts the Immigration Appeal Division’s jurisdiction to determine whether Rajwinderpal Kaur Dhindsa was a member of the family class and its humanitarian and compassionate jurisdiction; and finally whether, in all of the circumstances of this matter, the officer’s decision was patently unreasonable.
[10]Counsel for the respondent essentially only restates the issues but reduces them to two: first, whether the officer erred in a reviewable manner in finding that Rajwinderpal Kaur Dhindsa was not a dependent child of the principal applicant; and secondly, whether the officer erred in a reviewable manner in informing the applicants that, since Rajwinderpal Kaur Dhindsa was not a member of the family class, the sponsor of the principal applicant, Lakhwinderpal Singh Dhindsa, had no right of appeal to the Immigration Appeal Division or, put another way, does subsection 63(1) of the Act have any application with respect to this matter.
[11]I prefer the respondent’s statement of the issues. As in all applications for judicial review such as this, the issue of standard of review also arises.
ANALYSIS
Standard of review
[12]In Liu v. Canada (Minister of Citizenship and Immigration),2 my colleague Justice Snider wrote, at paragraph 14:
An application to be admitted to Canada as an immigrant involves a discretionary decision on the part of the visa officer, who is required to make that decision on the basis of specified statutory criteria. The standard of review to be applied to a visa officer’s decision with respect to a finding of fact is patent unreasonableness. . . .
[13]I am satisfied on the facts of this matter that Rajwinderpal Kaur Dhindsa, through her inclusion in the principal applicant’s sponsored application to come to Canada, as an alleged dependent child of the principal applicant and therefore as a member of the family class, applied to be admitted to Canada and that the decision to delete her name from the principal applicant’s application in effect amounted to rejection of her application. Thus, the foregoing quotation is directly applicable and I find no basis on the facts of this matter to vary from my colleague’s conclusion that the appropriate standard of review on the first issue question before the Court is, in general terms, patent unreasonableness.
[14]The foregoing being said, the basis of the officer’s conclusion in that regard involved application of the facts underlying this matter to the interpretation of the Hindu Adoptions and Maintenance Act, 1956. In Canada (Minister of Citizenship and Immigration) v. Sharma,3 Justice Wetston wrote at paragraph 10:
The content of the foreign law is a question of fact. How the foreign law is applied is a question of law.
Against the foregoing, I am satisfied that the analysis of the officer leading to the conclusion that the principal applicant’s alleged adoption of Rajwinderpal Kaur Dhindsa was not valid should be reviewed on a standard of review of reasonableness simpliciter.
[15]The application of the conclusion that Rajwinderpal Kaur Dhindsa is not a dependent child in relation to the principal applicant and therefore not a member of the family class to subsection 63(1) of the Act is, equally, a matter of application of the particular facts on this application for judicial review to the interpretation of subsection 63(1) and should, therefore, be reviewed on a standard of review of reasonableness simpliciter.
[16]I have arrived at the foregoing conclusions after taking into account all of the relevant factors underlying a pragmatic and functional analysis.
The officer’s finding that Rajwinderpal Kaur Dhindsa is not a dependent child of the principal applicant
[17]Pursuant to section 11(vi) of the Hindu Adoptions and Maintenance Act, 1956, to be valid, the adoption of Rajwinderpal Kaur Dhindsa by the principal applicant and her husband, in 1993, had to involve the actual giving of the child by her biological parents and the taking of the child in adoption by the principal applicant and her husband, with intent to transfer the child from the family of her birth.
[18]As noted earlier in these reasons, the officer wrote in her reasons for deleting Rajwinderpal Kaur Dhindsa from the principal applicant’s sponsored application for immigration to Canada:
I am not satisfied that a physical giving and taking [in] connection with your claimed adoption, as required by section 11(vi) of the Adoptions Act, was performed in 1993. I am also not satisfied that the adoption created a genuine parent‑child relationship as her real parents were living with you at the time of the adoption.
[19]Counsel for the applicants urged that there was no evidence before the officer to support the officer’s concern that there was no actual giving and taking in adoption with intent to transfer Rajwinderpal Kaur Dhindsa from her biological parents to the principal applicant and her husband. Rather, counsel notes, both the principal applicant and Rajwinderpal Kaur Dhindsa, at their interview with the officer, stated that there had been a giving and taking in 1993 in accordance with Hindu rites and rituals and that that oral assurance was supported by the following paragraph contained in the principal applicant’s affidavit filed herein:
3. My late husband, Mangal Singh and I took the Applicant, Rajwinderpal Kaur Dhindsa born January 15, 1984, in adoption in 1993 in accordance with the Hindu Adoption and Maintenance Act observing all necessary rites and ceremonies essential to a Hindu adoption.
[20]Counsel urged that the foregoing was confirmed by the registration of an adoption deed, albeit some years later, and that the presumptions set out in sections 12 and 16 of the Hindu Adoptions and Maintenance Act, 1956 would appear to have been ignored by the officer.
[21]I reject the submission of counsel for the applicant that there was “no evidentiary basis” for the officer’s concerns and conclusion regarding what took place in 1993. First, there was no evidence whatsoever before the officer as to a “giving” by Rajwinderpal Kaur Dhindsa’s biological parents. Secondly, Rajwinderpal Kaur Dhindsa’s biological parents continued to live in the same home with the principal applicant, her husband, her son and Rajwinderpal Kaur Dhindsa until some time in 1995. There was no evidence before the officer as to the relationship between Rajwinderpal Kaur Dhindsa and her biological parents on the one hand and her purported adoptive parents on the other during the time between the purported adoption and the time when the biological parents left the common home.
[22]Against the totality of the evidence before the officer, I am satisfied that it was reasonably open to the officer to conclude that the giving and taking in adoption required by section 11(vi) of the Hindu Adoptions and Maintenance Act, 1956 had not been established to her satisfaction. The onus was on the principal applicant. She simply failed, without explanation, to meet that onus.
[23]With regard to the officer’s expression of concern regarding the creation of a “genuine” parent‑child relationship, counsel for the applicant provided essentially no submissions. By contrast, counsel for the respondent urged that, on the evidence before the officer, it was open to the officer to conclude that there was insufficient evidence to show that the adoption was genuine.
[24]The concept of “genuineness” is reflected in section 4 [as am. by SOR/2004-167, s. 3(E)] of the Immigration and Refugee Protection Regulations4 (the Regulations). In order for an allegedly adopted child not to be considered an adopted child under that provision, there must be both a finding of lack of genuineness and also a finding that the adoption was “entered into primarily for the purpose of acquiring any status or privilege under the [Immigration and Refugee Protection] Act.” I conclude that there was no evidence before the officer or the Court to support a finding that the purported adoption of Rajwinderpal Kaur Dhindsa was entered into primarily for the purpose of acquiring any status or privilege under the Act. Certainly, counsel for the parties referred me to none.
[25]Based on the foregoing brief analysis, I conclude that the officer’s determination that the purported adoption of Rajwinderpal Kaur Dhindsa by the principal applicant and her husband did not create a “genuine” parent‑child relationship was reasonably open to her but that that determination was of no consequence in the absence of a finding that the purported adoption was entered into for the purpose of acquiring any status or privilege under the Act.
[26]The officer’s conclusion regarding “validity”, which I have found to be reasonably open, was itself sufficient to be dispositive of the first issue on this application against the applicants.
The deletion of Rajwinderpal Kaur Dhindsa from the principal applicant’s application for immigration to Canada
[27]Counsel for the applicants urged that the officer’s action in deleting Rajwinderpal Kaur Dhindsa’s name from the principal applicant’s application deprived the principal applicant or her sponsor of a right to appeal under subsection 63(1) of the Act and, thus, ousted the jurisdiction of the Immigration Appeal Division of the Immigration and Refugee Board to determine whether or not, on the facts of this matter, Rajwinderpal Kaur Dhindsa was in fact a member of the family class, that the principal applicant is an appropriate “sponsor” and therefore whether humanitarian and compassionate considerations should entitle Rajwinderpal Kaur Dhindsa to immigrate to Canada.
[28]For ease of reference, subsection 63(1) of the Act, which is quoted in the Schedule to these reasons, is repeated here.
63. (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.
[29]Section 65 preserves the humanitarian and compassionate considerations jurisdiction of the Immigration Appeal Division in the limited circumstances outlined therein. Section 65 of the Act is also reproduced in the Schedule to these reasons.
[30]Counsel for the applicants urged that deletion of Rajwinderpal Kaur Dhindsa from the principal applicant’s application, and thus, impliedly, the rejection of Rajwinderpal Kaur Dhindsa’s application, deprived the sponsor, that is to say the principal applicant, or, and this is to this Judge unclear, the sponsor of the principal applicant, and I interpret the applicant’s materials to imply the former and I read subsection 63(1) to identify the latter, of a right of appeal to the Immigration Appeal Division and, thus, potentially at least, of a right to have humanitarian and compassionate considerations in respect of Rajwinderpal Kaur Dhindsa taken into account.
[31]Counsel urged that the deletion of Rajwinderpal Kaur Dhindsa from the principal applicant’s application amounted to an “arbitrary action” contrary to the principles of natural justice and fairness, and that the appropriate course of action that should have been adopted by the officer was to simply deny the principal applicant’s sponsored application for immigration to Canada, thus rejecting the principal applicant’s application on the basis of the officer’s conclusion that the inclusion of Rajwinderpal Kaur Dhindsa in the application rendered the whole of the application unsupportable. The result of such action would, in the submission of counsel, leave open to the “sponsor” the full range of appeal rights to the Immigration Appeal Division including an appeal from the officer’s conclusion that Rajwinderpal Kaur Dhindsa was not a proper party to the principal applicant’s application.
[32]Counsel for the respondent urged that the officer directed his or her mind to the proper questions before him or her and that the decision to delete Rajwinderpal Kaur Dhindsa was open to her, thus leaving the application of the sponsored principal applicant alone, open to be determined on its own merits.
[33]Neither counsel referred the Court to statutory, regulatory or judicial authority on this issue. I am satisfied that no such authority governs my decision in this regard.
[34]Against the scheme of the Act and the Regulations read as a whole, I am satisfied that the course followed by the officer was open to her. An individual purporting to be an adopted child, such as Rajwinderpal Kaur Dhindsa, will not be a proper member of the family class capable of being included in a putative parent’s application for immigration to Canada, if the purported adoption is found not to be in accordance with law. Such was the case here, and I have already found in these reasons that the conclusion that Rajwinderpal Kaur Dhindsa was not an adopted child of the principal applicant in accordance with law was open to the officer.
[35]In the circumstances, I can find no basis flowing from the rejection of the qualifications of Rajwinderpal Kaur Dhindsa, to reject the application for immigration to Canada, sponsored by her son, which sponsorship was found to be valid, of the principal applicant. Once again in the circumstances, the officer had no basis, based upon the rejection of Rajwinderpal Kaur Dhindsa’s inclusion in the principal applicant’s application, to reject the principal applicant’s own application. The well foundedness of that application turned on entirely different facts, not evaluated at the moment of rejection of Rajwinderpal Kaur Dhindsa’s qualifications. Thus, the only course reasonably open to the officer was to delete Rajwinderpal Kaur Dhindsa’s participation in the principal applicant’s application and then to go on from there to consider the principal applicant’s application on its own merits.
[36]Based upon the foregoing brief analysis, I find no basis in fact, mixed fact and law or law, or indeed in fairness and equity, to overturn the officer’s decision to delete Rajwinderpal Kaur Dhindsa’s name from the principal applicant’s application for immigration to Canada.
[37]The foregoing conclusion results, as counsel for the applicants submits, in a narrowing of the jurisdiction of the Immigration Appeal Division and, indeed, in the elimination of the jurisdiction of that tribunal to consider the merits of the deletion. That being said, as evidenced by this application for leave and for judicial review, this Court retains jurisdiction to consider the merits of the deletion and to adjudicate on that decision. What is purported to be lost is the jurisdiction of the Immigration Appeal Division, in the very limited circumstances outlined in section 65 of the Act, to take into account humanitarian and compassionate considerations flowing from the deletion of Rajwinderpal Kaur Dhindsa’s name from the principal applicant’s application. Such a result would not flow if this Court, on judicial review, had determined that in fact the officer had erred in a reviewable manner in determining Rajwinderpal Kaur Dhindsa not to be the adopted daughter of the principal applicant. Such is not the case. In the result, nothing is in fact lost.
CONCLUSION
[38]For the foregoing reasons, this application for judicial review will be dismissed.
CERTIFICATION OF A QUESTION
[39]At the close of the hearing of this application for judicial review, counsel were advised that the Court’s decision would be reserved. Counsel were also advised that an opportunity would be provided for them to make submissions on certification of a question. Counsel for the applicant will have five days from the date of the reasons herein to file with the Court and serve on counsel for the respondent submissions on certification. Thereafter, counsel for the respondent will have five days to serve and file responding submissions. Once again thereafter, counsel for the applicant will have three days to file and serve responding submissions. Only thereafter, or in the event of any party failing to take advantage of the opportunity hereby provided, will the Court’s order issue.
SCHEDULE
1.THE IMMIGRATION AND REFUGEE PROTECTION ACT
Subsection 12(1) reads as follows:
12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common‑law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident
Subsections 63(1) and 64(3) read as follows:
63. (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.
. . .
64. (3) No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation, unless the foreign national in question is the sponsor’s spouse, common‑ law partner or child.
Section 65 reads as follows:
65. In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations.
2. THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
The opening words of section 2 and the relevant portions of the definition “dependent child” read as follows:
2. The definitions in this section apply in these Regulations.
. . .
“dependent child”, in respect of a parent, means a child who
(a) has one of the following relationships with the parent, namely,
. . .
(ii) is the adopted child of the parent; and
(b) is in one of the following situations of dependency, namely,
(i) is less than 22 years of age and not a spouse or common‑law partner,
Section 4 reads as follows:
4. For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common‑law partner, a conjugal partner or an adopted child of a person if the marriage, common‑law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act..
Section 116 reads as follows:
116. For the purposes of subsection 12(1) of the Act, the family class is hereby prescribed as a class of persons who may become permanent residents on the basis of the requirements of this Division.
Section 117 reads as follows:
117. (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
. . .
(b) a dependent child of the sponsor;
(c) the sponsor’s mother or father;
. . .
(2) A foreign national who is the adopted child of a sponsor and whose adoption took place when the child was under the age of 18 shall not be considered a member of the family class by virtue of that adoption unless it was in the best interests of the child within the meaning of the Hague Convention on Adoption.
(3) The adoption referred to in subsection (2) is considered to be in the best interests of a child if it took place under the following circumstances:
. . .
(c) the adoption created a genuine parent‑child relationship;
(d) the adoption was in accordance with the laws of the place where the adoption took place;
3. THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956
Section 5 reads as follows:
5. . . .
(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.
(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.
Section 11(vi) reads as follows:
11. . . .
In every adoption, the following conditions must be complied with:
. . .
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption;
Section 12 reads as follows:
12. An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:
PROVIDED that‑
(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.
Section 16 reads as follows:
16. Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.
1 S.C. 2001, c. 27.
2 (2003), 231 F.T.R. 148 (F.C.T.D.) (not cited before the Court).
3 (1995), 101 F.T.R. 54 (F.C.T.D.) (not cited before the Court).
4 SOR/2002-227.