Date: 19980525
Docket: IMM-3933-97
Between :
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
ROBERT EDWARD WHITE
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an application to review and set aside a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD") dated September 2, 1997, wherein the Appeal Division allowed the appeal of an immigration officer's refusal to approve the respondent's sponsorship of Rowel Ordanez White (the "child") on January 15, 1996.
[2] The respondent did not show up at the hearing before me, in spite of the fact that the Order fixing the place, date and time of the hearing was duly communicated to him by the Registry. I allowed the matter, therefore, to proceed ex parte.
[3] The record shows that the following statements were made during the interview of the child, his natural and his adoptive parents, by the visa officer:
| I asked natural father why he agreed to the adoption. He said because Rose wanted to adopt Rowel and he wanted Rowel to have a good life in Cda. He said he finally agreed to the adoption because Rose is a relative. He could not explain why Rose waited until Rowel was 13 before petitioning to adopt. Natural mother said she agreed to the adoption so Rowel could have a good future in Cda. |
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| I asked why Rowel had been adopted and not one of their other children. Natural father responded 'because Rowel wanted to be adopted because he wants to go to Canada to study'. |
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| I asked Rowel why he agreed to the adoption. He said 'because we are poor'. I asked why he wanted to go to Cda. He replied 'so I can help my parents'. . . . |
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[4] As of February 1, 1993, the definition of "adopted" was amended to read as follows:
| "adopted" means a person who is adopted in accordance with the laws of a province or of a country other than Canada or any political subdivision thereof, where the adoption creates a genuine relationship of parent and child, but does not include a person who is adopted for the purpose of gaining admission to Canada or gaining the admission to Canada of any of the person's relatives; |
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[5] The IAD was, therefore, obligated to directly consider whether the adoption was an "adoption of convenience", in which the purpose was to gain admission to Canada. In my view, the present case is not distinguishable from the case of M.C.I. v. Shi (May 16, 1997), IMM-3603-96, where I held that the IAD committed a reviewable error in ignoring material evidence of the sponsoree's understanding of the intention of the adoption:
| 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. |
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[6] In the case at bar, the applicant has convinced me that the IAD ignored or failed to directly consider evidence taken from the interview with the immigration officer. Though the IAD made clear and sympathetic findings concerning the credibility of the respondent and his wife during the hearing, as well as with respect to the earnestness of their intentions, no explanation was made in regard to the finding of the immigration officer that the adoption was for the purposes of gaining the child's admission into Canada.
[7] Consequently, 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.
[8] The case raises no serious question of general importance for the purpose of certification.
JUDGE
OTTAWA, ONTARIO
May 25, 1998
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