Date: 20030416
Docket: IMM-4823-01
Neutral Citation: 2003 FCT 447
Ottawa (Ontario), April 16, 2003
Present: The Honourable Mr. Justice Blais
BETWEEN:
PIAO CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 114(2) of the Immigration Act of a decision dated August 31, 2001 of immigration officer P. Phinn [immigration officer] refusing the request of Piao Chen [Applicant] to obtain an immigrant visa from within Canada based on humanitarian and compassionate [H & C] grounds. The Applicant requests that the decision be overturned and sent back to the Minister of Citizenship and Immigration [Minister] for a new determination by a different immigration officer.
FACTS
[2] The Applicant is a 76 year old citizen of China. In 1995, he arrived in Canada with his late wife to visit their daughter. This is the Applicant's third or fourth H & C application (it is not clear from the facts nor the documentation), all of which were refused as well.
[3] On May 5, 1999, the Applicant was interviewed by the immigration officer and was given over a year to submit further evidence before a review of the circumstances and a final decision be taken by her on August 31, 2001.
[4] In 1959, the Applicant and his wife put their daughter, Ling Ling Huang, in the care of her aunt and uncle when she was only a baby.
[5] In 1961, the aunt and uncle moved from Tianjin to Hong Kong, bringing along the Applicant's daughter. In order to move to Hong Kong with the little girl, the aunt and uncle needed to show authorities a document indicating that she had been adopted. Therefore, the Applicant and his wife signed an agreement attesting that their daughter had been given to her aunt.
[6] In 1975, the aunt and uncle immigrated to Canada and brought Ms. Huang as their own daughter.
[7] Canadian immigration records show that Ms. Huang was landed in Canada as the dependant daughter of her aunt and uncle, and not as an adopted daughter.
[8] For various reasons, the Applicant and his wife never got their daughter back and it was not until 1993 that they were reunited again. Since their reunification, the Applicant has been living with his daughter who is providing him with all the necessary care.
THE H & C DECISION
[9] The immigration officer found that the Applicant's daughter was not an eligible sponsor. Also, she was unsatisfied that a parent and child relationship was ever nurtured between Ms. Huang and her natural parents. The immigration officer stated that the Applicant had not convinced her that he would experience disproportionate or undue hardship if he returned to China, nor that he was sufficiently established in Canada.
ISSUES
[10] 1. Did the immigration officer apply the proper test for H & C applications?
2. Did the immigration officer commit an error of mixed fact and law in denying the Applicant's natural daughter to sponsor his application?
ANALYSIS
Standard of review
[11] Pursuant to subsection 114(2) of the Immigration Act, the Minister is authorised to exempt persons from any regulations made under subsection 114(1) or to otherwise facilitate their admission into Canada where he is satisfied that such exemption or facilitation should occur owing to the existence of H & C considerations. The process is one which is highly discretionary, and as such, the onus is on the applicant to satisfy the immigration officer that there are sufficient H & C grounds to warrant a favourable recommendation.
[12] The standard of review applicable to an immigration officer's decision made pursuant to subsection 114(2) of the Immigration Act, and section 2.1 of the Immigration Regulations, 1978, is reasonableness simpliciter. Under this standard of review, a decision should be set aside if it is unreasonable, which means that it is not supported by reasons that can stand up to a somewhat probing examination. See Kim v. Canada (M.C.I.), [2000] F.C.J. No. 43 (F.C.T.D.) per Dawson J. at paragraphs 11 and 12, and Baker v. Canada (Minister of Employment and Immigration), [1999] 2 S.C.R. 817 at paragraphs 62 and 63.
Did the immigration officer apply the proper test for H & C applications?
[13] The Immigration Manual, c. IP5 (May 1999) at section 6.1, states that:
Applicants bear the onus of satisfying the decision-maker that their personal circumstances area such that the hardship of having to obtain an immigrant visa from outside of Canada in the normal manner would be (I) unusual and undeserved or (ii) disproportionate.
[14] In reading the immigration officer's decision of August 31, 2001, it is clear that she applied the reasonableness simpliciter test to the facts. After determining that the Applicant still had a brother in China, still owned an apartment and would be eligible to a pension, the immigration officer concluded that he would not suffer unusual or disproportionate hardship.
[15] I concur with the respondent in that the legal test found in the Immigration Appeal Division case Chirwa v. Canada (1969) Imm. Appeal Cases, Vol. 4, p. 338, and proposed by the Applicant for H & C applications is not "the only judicial definition" (see page 32 of the Applicant's application record). Rather, it should be read in conjunction with the Immigration Manual.
[16] Therefore, the immigration officer did not err on this issue.
Did the immigration officer commit an error of mixed fact and law by denying the Applicant's natural daughter to sponsor his application?
[17] Before getting into the parties' submissions, I would like to present the legislative framework of a family class sponsored landing application in Canada.
[18] At subsection 3(c) of the Immigration Act, the immigration objective established is "to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad". In the new Immigration and Refugee Protection Act, 2001, at subsection 3(1)(d), the related objective is to see "that families are reunited in Canada".
[19] In the new Immigration and Refugee Protection Regulations, 2001, at section 2, the word "relative" means "a person who is related by blood or adoption".
[20] Subsection 2(1) of the Immigration Act defines "member of the family class", inter alia, as "the sponsor's father or mother". The word "father" is furthermore defined as:
(a) with respect to any person who has not been adopted, the male of whom that person is the issue, and
(b) with respect to any person who has been adopted, the male who has adopted that person.
[21] Regarding this definition, Waldman in Immigration Law and Practice (Markham: Butterworths Canada Inc., 1994) comments that: "The effect of this definition is to preclude from sponsorship a person's natural father, if the person is subsequently adopted".
[22] In light of the previous considerations, I will now address the Applicant's argument that the immigration officer made a patently unreasonable finding of fact by asserting that the parent-child relationship was never nurtured between the Applicant and his daughter. The respondent argues that the actual finding made by the immigration officer was that there was insufficient evidence of a parent-child relationship having ever been nurtured over the decades.
[23] I agree with the respondent's contention that the Applicant and his daughter had absolutely no connection until she was 39 years old. There is no evidence of a nurtured relationship up until the moment they reunited in 1993. However, beyond that point, there is extensive evidence of a nurtured parent-child relationship.
[24] The immigration records indicate that Ms. Huang was landed in Canada as the dependant child of her aunt and uncle. These documents can presumably be taken for the validity of the adoption. Regardless of this and of the reasons why the Applicant and his daughter did not contact each other for almost forty years, the fact remains that he is the biological father of Ms. Huang and they now want to be together again. In the record, there is a DNA paternity test result of 99.97% confirming that the Applicant is the biological father of Ms. Huang and ample evidence that she really wants to take care of her newly found father.
[25] I understand that the legislation provides a definition of the term "father" to impeach potential scams. However, in the case at bar, I believe that the presence of a bona fide desire to reunite with a biological relative and that the evolution of the relationship since that reunification are sources of compassion for which the immigration officer should have considered more seriously. In my opinion, our society is now more open to various family situations and the fact that a person may have two fathers, one adoptive and one biological, is highly possible in present days.
[26] In the arena of an H & C application, the immigration officer has high discretionary powers and unless a decision is unreasonable, the Court should not intervene. In the case at bar, in relation to the application of the law, the immigration officer was clearly right. However, with regards to the facts and material in the record, I think that the decision was made in a perverse and capricious manner.
[27] In my opinion, there is room for interpretation of the law with respect to the immigration objectives and the new definition of "relative" as to not preclude a person to sponsor a biological parent if he or she already has an adoptive parent. I am of the view that the present circumstantial facts call for leniency of the immigration rules' application in relation to the immigration objectives.
[28] The respondent admits that we are faced with a sympathetic situation but that an application cannot be granted on this basis. Nevertheless, I think that there is enough evidence on file to show that there is a sufficient parent-child relationship to conclude that the immigration officer made a capricious finding of fact which fettered his discretion. For this reason and in light of my interpretation of the immigration objectives and rules, the decision was unreasonable.
ORDER
THIS COURT ORDERS THAT:
- The judicial review application is allowed;
- The immigration officer's decision dated August 31, 2001 is set aside and the matter is remitted to a different immigration officer for adjudication in light of these reasons;
- No question for certification.
"Pierre Blais
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4823-01
STYLE OF CAUSE: Piao Chen v. MCI
DATE OF HEARING: November 14, 2002.
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER AND ORDER: Blais J
DATE OF REASONS FOR ORDER AND ORDER: April 16, 2003
APPEARANCES BY: Ms. Inna Kogan
For the Applicant
Mr. Stephen Jarvis
For the Respondent
SOLICITORS OF RECORD:Mr. Cecil Rotenberg, QC
Barristers and Solicitors
255 Duncan Mill Road
Suite 808
Don Mills, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
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