Date: 19980827
Dossier: IMM-3457-98
| Between : DING Baoqi (Michael) |
Applicant
| And: The Minister of Citizenship and Immigration |
Respondent
REASONS for ORDER and ORDER
DENAULT J.:
[1] This is an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the Board) which dismissed an appeal of a visa agent who refused an application for permanent residence in Canada of a Chinese child.
[2] Both the visa agent and the Board came to the conclusion that the child did not meet the definition of "adopted" as defined in subsection 2(1) of the Immigration Regulations, 1978, which reads:
| "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; (my emphasis) |
."adopté" Personne adoptée conformément aux lois d'une province ou d'un pays étranger ou de toute subdivision politique de celui-ci, dont l'adoption crée un véritable lien de filiation. La présente définition exclut la personne adoptée dans le but d'obtenir son admission au Canada ou celle d'une personne apparentée |
[3] From the evidence, it appears that the decision of the applicant to adopt his niece Ding Yinjie, born in December 1992 in the Peoples' Republic of China (PRC) from the applicant's older brother and his wife, was taken when the biological mother conceived a second child, a boy born in August 1994, contrary to the PRC's one child per family directive.
[4] The procedure for the adoption of Ding Yinjie was sanctioned by the Chinese authorities (12/27/95) and the Québec authorities (2/14/95), but when the applicant filed an application for permanent residence (June 6, 1996) in Canada for her niece - now her adopted child - as a member of the family class, it was dismissed. Before the Board, the appeal was dismissed as well on the following grounds: (p.12 of the applicant's Court Record)
| The evidence indicates that there was no intent to transfer the applicant from her biological parents to her adoptive parents so as to create a genuine relationship of parent and child between the appellant, his wife, and the applicant. Therefore, the applicant does not meet the definition of "adopted". Consequently, she is not a member of the family class. |
[5] The applicant argues that the Board erred both in fact and in law firstly by erroneously finding that the adoption did not create a genuine relationship of parent and child, and secondly by putting too much emphasis on the Adoption Homestudy made for the purposes of the adoption in Quebec and ignoring other evidence such as the applicant's and his wife's testimonies.
[6] Even though the facts in this case are very sympathetic and may create a delicate situation should the application for permanent residence of Ding Yinjie be ultimately denied, the role of this Court is not to rehear the case. In a judicial review application such as this one, the Court may intervene only within the parameters of subsection 18.1(4) of the Federal Court Act, namely if there is an error of law or if a conclusion of fact is drawn in a capricious or perverse manner from all the evidence1.
[7] In order to find whether a person is "adopted" pursuant to subsection 2(1) of the Immigration Regulations 1978 as it now reads, a visa agent or the Immigration Appeal Division is required to look at three issues2: 1) 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; 2) whether the factual circumstances indicate that a genuine3 relationship of parent and child was created as a result of that adoption; and 3) whether the person was adopted for the purpose of gaining admission to Canada or any of the person's relatives; this last requirement is now referred to as "adoption of convenience".
[8] There is no issue here as to requirements 1) and 3) which are met. This application raises only the issue of whether or not the adoption has created a genuine relationship of parent and child.
[9] At the hearing, counsel for the applicant acknowledged that the legal adoption of the child pursuant to Chinese or Quebec laws did not create a presumption of a genuine relationship but argued that, at least, it created a legal bond. I do not agree. While the adoption papers are prerequired to the granting of a person's permanent residence as a member of the family class, they constitute but one of the factors to be considered by the decision maker on whether a genuine relationship was established between the parents and the child.
[10] In this case, the main issue is one of facts and in my view, the record contains ample evidence to support the Immigration Appeal Division conclusion that no genuine relationship was established between the applicant and his niece Ding Yinjie. I find that it was reasonably open to the Immigration Appeal Division to conclude as it did, having considered the following facts: a) the only reason for the adoption being the desire of the applicant and his wife to extricate their brother and his wife from a difficult situation resulting from the birth of a second child; b) the contradictory evidence as to the financial support for Ding Yinjie; c) the few visits in China to see the child; d) the contacts that would continue to be maintained between the child and her biological parents.
[11] In my view, it was open to the Immigration Appeal Division to consider, as it did, not only the Adoption Homestudy but the testimonies of the applicant and his wife, as appears from the decision.
[12] For these reasons, the within application for judicial review is dismissed.
[13] Counsel for the applicant suggested that the following question be certified pursuant to section 83 of the Immigration Act:
| Should the cultural context of the adoption be considered in determining whether or not a genuine adoption exists, taking into account the multicultural nature of Canada as set out in the Constitutional Act? |
I agree with the respondent's counsel that the proposed question is one of fact that is wholly linked with the applicant's personal situation. Accordingly, no question will be certified.
J.F.C.F.
__________________1 Tawfik v. Canada (M.E.I.), Ct.file No.93-A-311 (F.C.T.)
2 See M.E.I. v. Kai Hang Shi , IMM-3603-96, dated May 16, 1997, Pinard J.
3 This adjective was added pursuant to the amendment of the Immigration Regulations , 1978, dated February 1, 1993. Prior to that amendment, the definition read "...where the adoption created a relationship of parent and child."