Shergill v. Canada ( Minister of Citizenship and Immigration )
IMM-4190-97
Rothstein J.
29/5/98
5 pp.
Judicial review of Immigration Appeal Division decision upholding visa officer's refusal to approve sponsorship application for permanent residence of applicant's "adopted" daughter from India on ground daughter not adopted in accordance with requirements of Hindu Adoptions and Maintenance Act (HAMA) of India, specifying adoptive father must be at least 21 years older than adoptive daughter-Age difference herein 17 years-Daughter thus not member of family class for Canadian immigration purposes-Immigration Regulations, 1978, s. 2(1) defining "adopted" as in accordance with laws of any province of Canada or of any country other than Canada or any political subdivision thereof where adoption created relationship of parent and child-Sole issue whether daughter adopted in accordance with laws of India-HAMA, s. 11 requiring, if adoption by male and person to be adopted female, adoptive father to be at least 21 years older than person to be adopted-Applicant submitting s. 11 only applicable to single parent adoptions-Evidence before IAD from Indian court officials, lawyers, as well as declaratory judgment from Indian court, adoption herein valid-Conflicting expert evidence s. 11(iii) applied, but not complied with-In view of conflicting evidence relating to Indian law, IAD required to weigh evidence-Application dismissed-Barring legal error, Court will not re-weigh evidence-Open to IAD to prefer respondent's evidence-Applicant relying on HAMA, s. 16 imposing presumption of validity of adoption unless, until disproved-Singh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 37 (C.A.) binding: presumptions imposed by Indian law on Indian courts of no assistance in determining whether "adopted" for special purposes of Immigration Act-IAD not bound by declaratory judgment-If 21-year requirement not relevant where married couple adopting, difficult to understand why statement included in deed of adoption that adoptive father more than 21 years older than daughter-To sustain proposition 21-year requirement only applicable to single parent adoptions, at least some evidence of rationale for that position desirable-Immigration Regulations, 1978, SOR/78-172, s. 2(1) "adopted"-Hindu Adoptions and Maintenance Act, 1956, ss. 11, 16.