Judgments

[1993] 2 F.C. 483

A-340-91

The Minister of Employment and Immigration (Appellant)

v.

Jagdish Singh Sidhu (Respondent)

Indexed as: Canada (Minister of Employment and Immigration) v. Sidhu (C.A.)

Court of Appeal, Hugessen, Desjardins and Décary JJ.A.—Montréal, March 5; Ottawa March 12, 1993.

Citizenship and Immigration — Status in Canada — Permanent residents — Sponsored application for girl purportedly adopted in India — Immigration and Refugee Board lacking jurisdiction to grant adoptive status not valid under foreign law on basis latter discriminatory and contrary to public order in Canada — Foreign legislation may be disregarded in toto as offensive to public policy, but cannot be redrafted — Parliament adopting by reference foreign legislation on adoption — Board to determine whether foreign adoption occurred in accordance with foreign law.

Conflict of laws — Immigration and Refugee Board granting adoptive status and refusing to apply foreign legislation invalidating adoption as latter discriminatory and contrary to public order in Canada — Immigration Regulations, 1978, defining “adopted” as meaning “adopted in accordance with the laws of … any country other than Canada” — Visa officer, Board to determine whether adoption occurred according to foreign law — No conflicting substantive laws since no federal legislation on adoption for immigration purposes — No conflict in sense of law which must apply to protect political, social and economic organization of Canada to exclusion in toto of foreign law normally applicable.

This was an appeal from the decision of the Appeal Division of the Immigration and Refugee Board. The respondent purported to adopt in India his nine-year-old niece, and then sponsored her application for permanent residence. Immigration Regulations, 1978 paragraph 4(1)(b) permits the sponsorship of a “dependent daughter”. The definition of “daughter” includes an adopted daughter and “adopted” means “adopted in accordance with the laws of … any country other than Canada”. The respondent already had two daughters, aged ten and sixteen, living in Canada. The Hindu Adoptions and Maintenance Act, 1956 (HAMA) provides that an adoptive parent must not have a Hindu daughter living at the time of adoption of a daughter. The visa officer refused to issue a visa on the ground that the adoption was invalid. On appeal, the respondent argued that he did not already have “Hindu” daughters since his two daughters had been born in Canada and no longer practised the Hindu religion. In allowing the appeal, the Board refused to apply HAMA as discriminatory and contrary to public order.

Held, the appeal should be allowed.

The Board had no jurisdiction to grant a foreign adoptive status which was not valid under foreign law. Its jurisdiction is limited by the Immigration Act, which in turn is limited by the Constitution Act, 1867. Parliament has not legislated independently on the subject-matter of adoption for immigration purposes, but has adopted by reference foreign legislation. While there may be non-recognition due to public policy of a situation recognized by foreign legislation, the Board cannot redraft such legislation. The immigration authorities had a duty to assure themselves that a foreign adoption had occurred according to the foreign law and to give full effect to the adoption if valid according to HAMA.

There was no conflict of laws, either in the sense of conflicting substantive laws, since there is no federal adoption legislation, or in the sense of a law which must unilaterally and immediately apply to protect the political, social and economic organization of Canada to the exclusion in toto of the foreign law that would normally be applicable by virtue of the conflict of laws rule of Canada. The Board merely purged a clause of the foreign statute.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Civil Code of Lower Canada.

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5].

Hindu Adoptions and Maintenance Act, 1956, ss. 11(i)(ii), 16.

Immigration Act, R.S.C., 1985, c. I-2, ss. 77(1),(3) (as am. by R.S.C., 1985 (2nd Supp.), c. 10, s. 6; (4th Supp.), c. 28, s. 33), 83 (as am. idem, s. 19), 84.

Immigration Regulations, 1978, SOR/78-172, ss. 2(1) (as am. by SOR/85-225, s. 1), 4(1)(b) (as am. by SOR/92-101, s. 4).

CASES JUDICIALLY CONSIDERED

CONSIDERED:

Parmar v. Canada (Minister of Employment and Immigration), [1991] I.A.D.D. No. 180 (Q.L.).

REFERRED TO:

Singh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 37; (1990), 11 Imm. L.R. (2d) 1 (C.A.).

AUTHORS CITED

Castel, J.-G. Canadian Conflict of Laws, 2nd ed. Toronto: Butterworths, 1986.

Groffier, Ethel. Précis de droit international privé québécois, 4^e édition. Cowansville, Québec: Les Éditions Yvon Blais Inc., 1990.

Lagarde, Paul. Recherches sur l’ordre public en droit international privé. Paris: Librairie générale de droit et de jurisprudence, 1959.

APPEAL from the Immigration and Refugee Board, Appeal Division’s decision that a provision of an Indian statute, The Hindu Adoptions and Maintenance Act, 1956, should not be applied in determining the validity of an adoption which had taken place in India as the legislation was discriminatory and contrary to public order in Canada. Appeal allowed.

COUNSEL:

Martine Valois and Johanne Levasseur for appellant.

Claudette Menghile for respondent.

SOLICITORS:

Deputy Attorney General of Canada for appellant.

Paquin, Pelletier, Montréal, for respondent.

The following are the reasons for judgment rendered in English by

Desjardins J.A.: The sole issue to be decided in this appeal, pursuant to section 83 of the Immigration Act,[1]is whether the Appeal Division of the Immigration and Refugee Board was entitled to conclude that clause 11(ii) of an Indian statute, The Hindu Adoptions and Maintenance Act, 1956 (HAMA), could not be applied so as to determine the validity of an adoption performed in India, because it is discriminatory and invalid as contrary to public order in Canada.

The respondent and his wife, through powers of attorney, purported to adopt in India, on October 18, 1988, the daughter of the respondent’s sister named Jagmohan Kaur Sidhu (Dhaliwal). An adoption deed was issued by the office of the sub-registrar, Jagraon, District of Ludhiana, Punjab, India. It bears a non-judicial stamp. The child was nine years old at the time of the adoption.

An application for permanent residence was made to the Canadian authorities on behalf of the child whom the respondent sponsored on November 16, 1988. During an interview in India, it was revealed that the sponsor already had two daughters of his own aged sixteen and ten, born and living in Canada.

The visa officer considered paragraph 4(1)(b) of the Immigration Regulations, 1978 [SOR/78-172 (as am. by SOR/92-101), s. 2][2] which provides for the admission to Canada of an unmarried son or daughter who meets the requirements specified therein. He referred to two definitions contained in the Regulations, namely the definition of the word “daughter” [as am. by SOR/85-225, s. 1][3] which includes a female “who has been adopted by that person before having attained thirteen years of age” and the definition of the word “adopted”[4] which means “adopted in accordance with the laws of … any country other than Canada”. This brought him to the provisions of The Hindu Adoptions and Maintenance Act, 1956, which governs Hindu adoptions in India, and particularly clause 11(ii) which reads:

11. …

(ii) if the adoption is of a daughter the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption.

In view of the fact that the sponsor had already two living daughters at the time of the adoption, the visa officer refused to issue the visa to the respondent’s niece on the ground that the adoption was invalid and the niece was not a member of the family class as contemplated by subsection 77(1) of the Immigration Act.[5]

The respondent appealed the visa officer’s decision to the Appeal Division of the Immigration and Refugee Board as he is entitled to do under subsection 77(3) of the Immigration Act [as am. by R.S.C., 1985 (2nd Supp.), c. 10, s. 6; (4th Supp.), c. 28, s. 33].[6] He particularly objected saying that he did not already have “Hindu” daughters since his two daughters were born in Canada and no longer practised or believed in the Hindu religion.

The Immigration and Refugee Board allowed the appeal. Referring to its earlier decision of Parmar v. Canada (Minister of Employment and Immigration),[7]. it refused to apply clause 11(ii) of the HAMA because it felt it was discriminatory and contrary to public order. In the case of Parmar, Mr. Parmar, a Canadian citizen, had a Hindu son and daughter in Canada at the time of adoption. He pleaded successfully that clauses 11(i) and (ii) of the HAMA[8] were discriminatory on the basis of religion and violated provisions of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. The Board concluded:[9]

A review of authorities and jurisprudence consulted on the scope of public order or public policy allows me to conclude that foreign law may not be applied in Canada when in conflict with our fundamental principles of justice.

…

The effect of the application of clauses 11(i) and (ii) of the HAMA is that Mr. Parmar, perhaps in the process, but surely in the result, is, in Canada, under the authority of Canadian statute, the subject of discrimination based on religion.

The refusal gives Canadian authority to this discrimination.

I find, therefore, that the present refusal based on a discriminatory provision of a foreign law is invalid as contrary to public order.

Hence, the following question: did the Board make a proper use of the concept of public order in the case at bar?

Paragraph 4(1)(b) of the Immigration Regulations, 1978 recognizes as being a “member of the family class” a daughter “adopted in accordance with the laws of … any country other than Canada”. At first sight, it is therefore the duty of the visa officer and of the Board to assure themselves that a foreign adoption has occurred according to the foreign law.

Paragraph 4(1)(b) represents the conflict of laws rule of the Immigration Act.[10] There is here no “material” rule of conflict in the sense of a substantive rule of law applicable since there is no federal adoption legislation.[11]. Nor are we in a situation where there is a law of “immediate application” in the sense of a law which must unilaterally and immediately apply so as to protect the political, social and economic organization of Canada to the exclusion of the foreign law that would normally be applicable by virtue of the conflict of laws rule of Canada.[12]. Such a situation, when it occurs, can only have the effect of excluding in toto the relevant foreign legislation. For instance, if the present adoption were valid under the HAMA, but contrary to Canadian public policy, a rule of immediate application could stipulate that the adoption will not be recognized in Canada. The Canadian authorities would then be obligated to refuse to recognize an adoption performed abroad for reasons of public policy. This is not what the Board did, nor what the respondent is asking us to do.

What the Board did, and what the respondent submits as being correct in law, was to purge clause 11(ii) of the HAMA as being contrary to Canadian public policy and then to validate what would be an otherwise invalid adoption according to the Indian legislation. The Board did this in order to prevent what it saw as discrimination against the respondent, on the basis of religion, occurring “in Canada, under the authority of Canadian statute.”

In my view, the Board erred.

While it may be correct in law to refuse to apply a Canadian statute which would in effect discriminate on the basis of religion, the Board had no jurisdiction under the Immigration Act to grant a foreign adoptive status which was not valid under foreign law on the grounds that the cause of invalidity is contrary to Canadian public policy. Its jurisdiction is limited by the Act which, in turn, is subject to the Constitution Act, 1867 [30& 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]]. Parliament has not purported to legislate independently on the subject-matter of adoption for immigration purposes. On the contrary, on that very point, it defers or it adopts by reference the foreign legislation.[13]

The authorities and jurisprudence cited by the Board stand for a non-recognition due to public policy of a situation recognized by a foreign legislation. They do not support the Board’s redrafting of a foreign legislation.

The respondent has brought to our attention French doctrinal authority apparently in support of some rearrangement of a foreign legislation so as to give it the style of the lex fori.[14] Whatever the extent of that proposed rearrangement is, I cannot read this statement as an invitation for the Court to modify the substance of the foreign legislation.

What the immigration authorities are called upon to do, in the case at bar, is to give full effect to the adoption if valid according to the HAMA. In doing so, and contrary to the position taken by the respondent, the Board and the visa officer are not substituting themselves to an Indian court. They have the power and the duty to determine the status in India of a child but only for purposes of landing in Canada.

What they had to decide is essentially a question of fact. The Board and the visa officer had before them the HAMA legislation and evidence which rebutted the presumption of validity of the deed of adoption.[15] The Board, however, failed to deal with an objection raised by the respondent that he did not have “Hindu” daughters, since his daughters were born in Canada and no longer practised or believed in the Hindu religion.[16]

For these reasons, I would allow this appeal. I would set aside the decision of the Immigration and Refugee Board and I would refer the matter back to the Board for a rehearing and a redetermination in a manner not inconsistent with these reasons.

According to section 84 of the Immigration Act [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 19], all costs of and incident to this appeal should be paid by Her Majesty on a solicitor and client basis.

Hugessen J.A.: I concur.

Décary J.A.: I agree.

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