Canada ( Minister of Citizenship and Immigration ) v. Sharma
IMM-453-95
Wetston J.
28/8/95
5 pp.
Judicial review of Immigration and Refugee Board, Appeal Division's decision allowing appeal from refusal to approve sponsored application for landing of "adopted" son-Natural mother physically passing child, in presence of and with consent of natural father, to respondent's wife in respondent's presence and with his consent, followed by deed of adoption stating child given in adoption-Child continuing to live in India while respondent, wife returned to Canada-Application for permanent residence denied on ground child not member of family class described in Immigration Regulations, 1978, s. 4(1)(b)-Whether child adopted in accordance with Hindu Adoptions and Maintenance Act 1956 (HAMA)-Whether adoption creating parent/child relationship as described in definition of "adoption" in Regulations, s. 2(1)-Adoption question of status generally determined by law of place where taking place-HAMA, s. 9(2) providing father shall alone have right to give in adoption-Applicant arguing adoption void as "give" meaning physically-Court unable to determine on record whether valid adoption under Hindu law, whether error of law-Content of foreign law question of fact-How foreign law applied question of law-Application of foreign law to facts found by Appeal Division not warranting intervention-Appeal Division erred in failing to assess factual circumstances surrounding adoption-In concluding valid foreign adoption resulting in parent/child relationship, Appeal Division cannot have considered Singh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 37 (C.A.)-Parent/child relationship not automatically established once requirements of foreign adoption demonstrated-S. 2(1) must still be examined-While doubtful on these facts that parent/child relationship established, Appeal Division must make determination-Immigration Regulations, 1978, SOR/78-172, ss. 2(1) (as am. by SOR/9344, s. 1), 4(1)(b) (as am. by SOR/92-101, s. 2; 93-44, s. 4)-Immigration Act, R.S.C., 1985, c. I-2, s. 19(2)(d).