Docket:
IMM-7067-12
Citation: 2013 FC 1090
Ottawa, Ontario, October
25, 2013
PRESENT: The Honourable Mr. Justice Phelan
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BETWEEN:
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FUHUA LIU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This judicial review concerns a decision by an
Immigration Officer [Officer] denying the Applicant’s H&C relief under s
25(1) of the Immigration and Refugee Protection Act, SC 2001 c 27
[IRPA].
II. BACKGROUND
[2]
The Applicant is a 57 year old Chinese citizen
who has a daughter in Canada whom she gave up for adoption to her late
husband’s brother and wife (Mr. Wang and Ms. Jiang). The Applicant’s biological
daughter, Ms. Wang, became a Canadian citizen in 2004. Since then, she has
visited her biological mother four times and has sent money on several
occasions.
[3]
The Applicant worked in accounting at a Chinese
company until retirement in 2005. She then began part-time work until she quit
work in 2009 to come to Canada. She has since been residing with Ms. Wang under
an extension of her visitor’s visa.
[4]
The Applicant alleges ill health and claims that
she will suffer hardship if she must return to China because she is
unemployable and has no emotional or financial support in China. Her hardship would be compounded by her separation from her biological daughter and
cessation of her volunteer work.
[5]
The Officer addressed each of these grounds of
hardship and concluded:
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the Applicant remains employable in China;
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there is psychological support in China through relatives and Ms. Wang is likely to continue financial support;
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the termination of ESL training is not a weighty
matter and ending community volunteer work is not unusual or disproportionate
hardship; and
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despite the attachment to and support of Ms.
Wang and her parents, requiring the Applicant to return to China was not catastrophic to their relationship because they had established and maintained their
relationship despite separation in the past.
[6]
The Officer concluded that the relationship was
not, in and of itself, sufficient to warrant an H&C exemption.
III. ANALYSIS
[7]
The only issue is the reasonableness of the
Officer’s decision (Kisana v Canada (Minister of Citizenship and
Immigration), 2009 FCA 189, [2010] 1 FCR 360).
[8]
Despite the Applicant’s argument to the
contrary, the Officer did consider whether the Applicant and Ms. Wang were “de
facto” family. While the term de facto family was not used, the
Officer considered the de facto family factors as identified in the OP4
Manual. However, being de factor family is not sufficient alone to
justify an H&C exemption.
[9]
Officers are required, in accordance with the
decisions in Hou v Canada (Minister of Citizenship and Immigration),
2007 FC 1326, 166 ACWS (3d) 351, and in Okbai v Canada (Minister of
Citizenship and Immigration), 2012 FC 229, 405 FTR 315, to consider the
factors but not necessarily to reach a specific conclusion.
[10]
In this case the Officer recognized the serious
and genuine relationship between the Applicant and Ms. Wang but held that it
was not sufficient to justify an exemption. Factors such as the long separation
between the Applicant and Ms. Wang and the relatively short period they have
spent living together weigh against a finding of a de facto family
relationship. Moreover, such a finding does not determine the outcome of an
H&C application.
[11]
The Respondent argued that family reunification
is not an applicable objective in the circumstances of the severing of the
legal relationship by adoption. The Respondent errs in equating the term
“family” in paragraph 3(1)(d) of IRPA with the more restricted criteria
used for family class permanent residence.
[12]
Given the modern acceptance of relationships
between adopted children and the biological parents who gave them up for
adoption and the easing of restrictions regarding adoption information, the
analysis of “family” for immigration purposes is more complex and may require
rethinking. However, to do so also raises questions about citizenship granted
on the basis of adoption and a number of related policy issues.
[13]
For purposes of this case, it is sufficient that
the Officer considered the purpose of paragraph 3(1)(d). The
Officer addressed the nature of the bond between the Applicant and Ms. Wang,
the support of the adoptive parents and the nature and manner of the
development and retention of the familial relationship.
[14]
It is important to note that family
reunification is only one of many factors to be considered in an H&C
application. The Officer considered all the relevant factors applicable to this
case and reached a conclusion which is supportable on the evidence. The
decision was reasonable and does not justify judicial intervention.
IV. CONCLUSION
[15]
The judicial review will be dismissed. There are
no questions for certification.
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