Canada (Citizenship and Immigration) v. Shi, docket IMM-3603-96

     IMM-3603-96

BETWEEN:

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Applicant

     - and -

     KAI HANG SHI

     Respondent

     REASONS FOR ORDER

PINARD J.

         The applicant seeks judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD") dated August 28, 1996, in which the tribunal allowed the respondent's appeal from the decision of a visa officer, dated September 14, 1994, refusing the application for permanent residence made under the family class by Huang Xiao Min.

         The respondent, Kai Hang Shi, is a 46 year old Canadian citizen, originally from the People's Republic of China (PRC). She and her husband, Junfu Huang, were married on June 9, 1982 in Shanghai, PRC. The couple has one natural born son, Xin Juang, born August 19, 1983.

         Huang Xiao Min, the sponsored applicant for permanent residence in Canada (the "sponsoree"), was born on February 7, 1978 in Shanghai, PRC, and is a citizen of that country. Her natural mother is the respondent's sister, Shi Kai Min.

         The respondent, her son and husband emigrated to Canada at different times in the late 1980s, and were granted landing in 1991.

         On August 28, 1996, the IAD ordered that the respondent's appeal be allowed. The member found that:

         The facts in this case are very sympathetic, in that the respondent and her husband seem to genuinely care about Xiao Min's well-being, and appear to have been motivated by a selfless desire to help her. Nevertheless, it is my opinion that the IAD committed a reviewable error in determining the sponsoree to be the respondent's adopted daughter within the meaning of subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172 ("the Regulations"), and therefore a member of the family class.

         Prior to February 1, 1993, the definition of "adopted" found at subsection 2(1) of the Regulations read as follows:

         The jurisprudence with respect to the pre-February 1, 1993 definition of "adopted" establishes that the IAD is required to look at two issues: whether a sponsored applicant for permanent residence in Canada as a member of the family class was adopted in conformity with the legal requirements of the country in which the adoption took place, and whether the factual circumstances indicate that the relationship of parent and child was created as a result of that adoption.¹

         As of February 1, 1993, the definition of "adopted" was amended to read as follows:

         Thus, it is clear that when assessing whether a sponsoree for permanent residence in Canada was "adopted" in conformity with the current definition, the IAD now has a third dimension to consider in addition to the two issues outlined above. The IAD must now also directly consider the bona fides of the adoption. In other words, the adoption cannot be a mere "adoption of convenience".

         In the present case, the IAD found that Xiao Min was not adopted "for the purpose of gaining admission to Canada or gaining the admission to Canada of any of the person's relatives". The IAD had before it the uncontradicted, sworn statutory declaration of the visa officer confirming and wholly supporting the contents of the refusal letter dated September 14, 1994. In that letter, the visa officer indicated that Xiao Min told her not once, but twice during the interview, that she was adopted by the respondent for the express purpose of gaining admission to Canada. Xiao Min also told the visa officer that she intended to sponsor her natural birth mother to emigrate to Canada.

         In my opinion, the IAD erred in ignoring this material evidence of the sponsoree's understanding of the intention of the adoption. It was incumbent on the IAD to explain why it discounted the visa officer's evidence. As indicated by the applicant, there is nothing in the IAD's reasons suggesting that it had any evidence before it indicating that the visa officer's evidence was wrong or dated. It therefore strikes me as unreasonable for the IAD member to apparently prefer the evidence of the respondent's evidence that "while she had not discussed the refusal letter" with Xiao Min, she was sure that the latter had not indicated to the visa officer that she intended to sponsor her natural mother, to the visa officer's clear evidence that the sponsoree had in fact made such a statement during the interview.

         It is noteworthy that the sponsoree herself did not testify at the hearing before the IAD, nor did she file a sworn affidavit setting out her recollection of what was discussed at the interview with the visa officer. There was thus no evidence to directly contradict the visa officer's account. In that context, the visa officer's account must be assumed to be accurate. The respondent was not herself present at the interview and therefore cannot attest as to what transpired there. Moreover, it appears that she did not discuss either the interview or the refusal letter with the adopted daughter, thus making her comments concerning her daughter's understanding of the nature and purpose of her adoption even more speculative.

         Based on the foregoing reasons, the application for judicial review is allowed, the decision of the IAD quashed, and the matter sent back for reconsideration by a differently constituted panel.

         The case raises no serious question of general importance within the meaning of section 83 of the Immigration Act.

OTTAWA, Ontario

May 16, 1997

                                         JUDGE

     ¹      See for example Canada (M.C.I.) v. Edrada (1996), 108 F.T.R. 60 (F.C.T.D.); Banda Singh Gill v. Canada (M.C.I.) (October 22, 1996), IMM-760-96 (F.C.T.D.); Canada (M.C.I.) v. Patel (1995), 90 F.T.R. 234 (F.C.T.D.); Canada (M.C.I.) v. Sharma (1995), 101 F.T.R. 54 (F.C.T.D.); Singh v. Canada (M.C.I.), [1990] 3 F.C. 37 (F.C.A.) and Canada (M.C.I.) v. Sohal (January 6, 1997), IMM-1943-96 (F.C.T.D.).