Kwan v. Canada (Minister of Citizenship and Immigration)

Kwan v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2001-08-30
Neutral citation
2001 FCT 971
File numbers
IMM-5527-00
Notes
Reported Decision
Decision Content
Federal Court Reports Kwan v. Canada (Minister of Citizenship and Immigration) (T.D.) [2002] 2 F.C. 100
Date: 20010830
Docket: IMM-5527-00
Neutral Citation: 2001 FCT 971
Between:
MAN TIN KWAN,
Applicant,
- and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
Muldoon J.
1. Introduction
[1] This is an application under section 18.1 of the Federal Court Act, R.S.C. 1985, Chap.F-7, for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board (the Appeal Division or the Board). On October 11, 2000, the Board dismissed the appeal from a visa officer's decision to refuse the application for permanent residence of the applicant's would-be adopted child, Qi Wen Zhao.
2. Procedural History
[2] On February 17, 1995, the applicant, Man Tin Kwan, a Canadian resident, submitted an undertaking of assistance with Citizenship and Immigration Canada to sponsor an application for permanent residence made by his purportedly adopted child, Qi Wen Zhao. Qi Wen Zhao had been allegedly adopted three months earlier, on November 9, 1994, when she was ten years old. On September 7, 1995, Qi Wen Zhao submitted an application for permanent residence under the family class to the Canadian embassy in Beijing.
[3] From May 23, 1995 to June 9, 1998, no action was taken regarding the application. The CAIPS notes indicate that the file was withdrawn on June 20, 1996, but no record was located to explain why. On June 9, 1998, the file was re-opened, and on August 18, 1998, Qi Wen Zhao was interviewed by a visa officer with the help of a Cantonese interpreter at the Canadian embassy in Beijing.
[4] By letter dated August 26, 1998, Qi Wen Zhao was informed that her application for permanent residence had been rejected:
This refers to your application for permanent residence in Canada.
I have now completed the assessment of your application and in my opinion it would be contrary to the Immigration Act and the Immigration Regulations, 1978 for you to be granted landing in Canada. I will, therefore, not be able to issue an immigrant visa to you.
Your application has been refused as you are a member of the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act in that you do not meet the requirements of paragraph 2(1) of the Immigration Regulations, 1978 for the issuance of a visa.
Regulation 2(1) stipulates "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.
You were adopted in 1994, when you were 10 years old, by your father's cousin and her husband. During your interview with a visa officer on 18 August 1998 you stated that you currently reside with your biological mother and father and are cared for and financially supported by them. You stated that you have always lived with your natural parents. You stated that you wanted to go to Canada to get a better education. Your sponsor immigrated to Canada in 1986 when you were only 2 years old and you stated that you did not see her again until 1994 when she returned to visit for one month and complete the adoption papers. You have not seen your sponsor since 1994 and you stated that correspondence is limited to cards at Christmas, New Years, and your birthday. You were unable to provide any information about your sponsor's life in Canada or where they live. Your parents are both employed and stated that there are no family problems which make them unable to care for you and your younger sisters.
You have failed to satisfy me, through documents provided and information given at interview, that a genuine parent-child relationship exists between you and your sponsor. As you have always been under the care of your natural parents I must conclude that this adoption was undertaken for the purpose of gaining admission to Canada and you are therefore inadmissible under section 19(2)(d) of the Immigration Act.
...
[5] By letter dated August 27, 1998, the applicant was informed that Qi Wen Zhao's application for permanent residence had been rejected.
[6] The applicant appealed the decision to the Appeal Division of the Board under subsection 77(3) of the Immigration Act, R.S.C. 1985, Chap.I-2, as am. (the Act). On October 4, 2000, a one-member panel of the Board dismissed the appeal. The applicant now seeks an order to set aside the Board's decision. The matter came on for hearing, May 24, 2001 in Winnipeg.
3. Statement of Facts
[7] The Appeal Division's board member summarized the facts in her findings at page 5 of the decision:
The following are my findings in relation to the evidence adduced in this appeal.
The Appellant, now 68 years of age, was previously married and has six children between 32 and 42 years of age. He remarried in 1986, his new wife being 37 years of age. The Appellant is retired, has a big house and time to spend with more children. The last of his biological children left the family home in 1994.
Mrs. Zhao testified to a desire to have her own biological child. The Appellant and his wife considered adoption in 1989 after Mrs. Zhao had a miscarriage. She was by this time 40 years of age. In explanation for their delay before adopting in 1994, Mrs. Zhao stated that between 1989 and 1994, she was still hoping to get pregnant.
Both the Appellant and Mrs. Zhao testified that the purpose of the adoption was to bring a child into their home. A late marriage, followed by a miscarriage and failure to conceive over a five-year period culminated in this adoption. I am satisfied that Mrs. Zhao wants genuinely to have her own child, and Mr. Zhou [sic] is happy to agree. Yet I note that it was the natural parents who initiated the proposed adoption. According to the Appellant, the natural parents proposed the adoption in 1992, while Mrs. Zhao stated that this proposal was made in 1988. She remembered this as being one year after the natural parents had their third child. Further, the Applicant testified it was best for her to come to Canada as her parents are poor and "cannot give her things." I find that the natural parents' primary motivation was to gain the Applicant's admission to Canada.
The Appellant's evidence was that both the natural and adoptive parents appreciated that the adoption would benefit the natural parents. They are governed by the one-child policy in China. While the natural parents have three children, one born in each of 1984, 1985 and 1987, the evidence was that it is only the first child who is eligible for educational and other state-­provided benefits. The testimony was that a penalty or fee is assessed by the state for the second and third child, who can then be raised by the natural parents at their own cost. The evidence proved that the adoptive parents send money to the natural parents for payment of this penalty or fee for the natural parents' children - not the Applicant.
Whether the natural parents benefit from this adoption in relation to the one-child policy is not clear to me. The second and third child violated the one-child policy, and required payment of fees and expenditures not provided by the state. Yet it was the eldest or first-born child who was adopted because, according to Mrs. Zhao, she knew the girl before she departed for Canada. There was no evidence that the benefits bestowed upon the firstborn would flow to the second-born. Nor was there evidence of whether the Appellant and his wife would continue to provide funds to the Applicant's natural family in connection with their breach of the one-­child policy. Thus I find that the evidence does not prove, on a balance of probabilities, that any specific economic benefit accrues to the natural parents in relation to the one-child policy as a result of the adoption, but am satisfied that it proves that the Applicant will be afforded an improved lifestyle as a result of the financial status of the adoptive parents. Further, I find that the evidence is consistent with the purpose of the natural parents being to provide their eldest child with a better future by gaining her admission to Canada.
I find that the motives of the natural parents are to ensure a better future for their eldest child by gaining her admission to Canada. Yet I also find that this is only one purpose, as I find there is credible evidence to prove that the Appellant and Mrs. Zhao wanted to bring a child into their home to create a second family. As a result they adopted the Applicant in 1994, when she was ten years of age and who would by virtue of her age require parenting. However, these findings must he considered in light of all the evidence adduced.
Beyond the question of the purpose of the adoption is the issue of whether the evidence proves on a balance of probabilities that the adoption creates a genuine relationship of parent and child. I find that the evidence proves, on a balance of probabilities, that such a relationship has not been created. The child's name was not changed, nor was the fact of the adoption generally known outside the Applicant's natural family because, according to the testimony of the Applicant, people "tended to gossip." I find this explanation unsatisfactory, in particular as there was no indication of how or why such "gossip" would be problematic. I also find that the evidence proves, on a balance of probabilities, that there was no change in the parental authority from the natural to the adoptive parents. I find that the only influence exerted by the Appellant on the natural parents or the Applicant is related to the money provided by him, which is intended to benefit the family as a whole and not the Applicant alone. I note, too, that the Applicant continues to refer to the Appellant and his wife as her "uncle" and "aunt." I find that the evidence proves that the Applicant continues to regard her natural parents as her authority and parental figures. The evidence of the witnesses was that the Applicant would not be considered the child of the Appellant and Mrs. Zhao until the girl arrives in Canada, which is when a parent and child relationship would commence.
I find this evidence inconsistent with the adoption creating a genuine relationship of parent and child. I concur with the Appeal Division jurisprudence that the definition of "adopted" requires that the relationship of parent and child commence at the time of adoption, geographic separation notwithstanding. I find that the relationship is not expected to be fully developed, being described in Cansino as "inchoate". In this case, the adoption commenced in 1994, but the Appellant and his wife have taken no parental authority or responsibility for the Applicant. Their continued contribution is financial, which is insufficient to prove a parental relationship. The lack of development of a parent and child relationship is not explained by the evidence, even considering the geographic separation. It is not sufficient to say that after the child comes to Canada a parent-child relationship will commence.
Based on the forgoing [sic], I find that a purpose of the adoption is to gain the Applicant's admission to Canada, and also find that the evidence does not prove that the adoption creates a genuine relationship of parent and child.
This appeal is dismissed for lack of jurisdiction.
4. Issues
a. Did the Board err by refusing to rule on the visa officer's alleged errors of law?
b. Did the Board err by failing to advert to the purposes of the legislation?
c. Did the Board err in interpreting the definition of adopted?
d. Did the Board err in evaluating the genuineness of the relationship?
e. Did the Board err by failing to consider the best interests of the child?
5. Refusal to Rule on the Visa Officer's Alleged Errors of Law
Applicant's Submissions
[8] The Board stated the following at page 1 of its decision:
The visa officer found that there was insufficient evidence of the adoption having created a genuine parent and child relationship, in part, because the child continued to live with her biological parents, who are cousins of the Appellant's wife Shu Zhueng Zhao. The visa officer also described that there was little personal contact between the Appellant and the adopted child between 1986 when she was two years of age and 1994, when the adoption was commenced and the Applicant was 10 years of age. There were no personal visits after 1994 by the Appellant or his wife, who the Applicant referred to as "aunt" and "uncle." Also, there was little evidence of communication between the child and her adoptive parents subsequent to the adoption.
Counsel for the Appellant asserted that the visa officer applied the wrong statutory test in applying the definition of "adopted" to the Applicant and finding her not to be a member of the family class. Further, counsel averred that the conclusion that the adoption was to gain the Applicant's admission to Canada flowed from the visa officer's determination that there was insufficient evidence of a genuine parent and child relationship. He asserts this was without evidence specific to the purpose of the adoption. Counsel for the Appellant also asserts that the visa officer's failure to interview the adoptive parents regarding their motivation, which is a factor for consideration in determining the purpose of the adoption, is tantamount to a breach of natural justice.
I will not make a finding with regard to the errors asserted by Appellant's counsel, as it is not determinative of this appeal. Since the Federal Court ruling in Kahlon, appeals before the Appeal Division are hearings de novo. Thus any deficiencies in the treatment or availability of evidence may be remedied at this proceeding. The onus is on the Appellant to prove his case. Consequently I will analyze all the evidence and submissions in this case to arrive at a decision.
(emphasis added)
[9] The applicant submits that the Board erred when it declined to hold whether the visa officer committed the errors of law which were alleged. The Board did so by relying on Kahlon v. M.C.I. (1989), 97 N.R. 349 (F.C.A.), in which the Court stated at page 351 that an appeal to the Board is a "hearing de novo in a broad sense." The applicant submits that a hearing before the Board is de novo in that the Board can make different findings of fact based on the evidence which was presented to it because it is not bound by the record which was before the visa officer. However, the hearing remains an appeal from the decision of the visa officer, and the Board must rule whether the visa officer erred. The applicant submits that the Board cannot refuse to pronounce itself regarding errors of law, and the failure to do so constitutes an error which goes to jurisdiction.
[10] The applicant submits that the intent of Parliament was to create an appeal process, not a second immigration hearing. Because the applicant appealed to the Board regarding errors of law, he was entitled to know whether those errors were committed. The applicant submits that even if the Board correctly considered and ruled on the substantive legal issues which were before it, the Board nonetheless erred by not ruling on whether the visa officer considered the legal issues correctly. Further, he alleges an error of law committed by the visa officer automatically entitles the applicant to a successful appeal. That is a dubious allegation.
[11] Finally, the applicant submits that all of the jurisprudence before this Court concerns the ability of the Appeal Division to make different findings of fact during a hearing de novo. The cases which were submitted by the respondent, says the applicant, are distinguishable because they do not consider whether the Board must review errors of law.
Minister's Submissions
[12] The Minister submits that the effect of Kahlon, supra, is that the Board may decline to rule on errors which were allegedly made by a visa officer. The Federal Court of Appeal, speaking unanimously through Mr. Justice Mahoney, stated the following at page 350:
[4] In Gana v. M.M.I., [1970] S.C.R. 699, the nature of the appeal to the Immigration Appeal Board under earlier legislation was considered. I agree with the view expressed by Thurlow, C.J., in his concurring judgment in Mohamed v. M.E.I., [1986] 3 F.C. 90 at 95:
The language of the applicable statutory provisions has been changed somewhat since the decision of the Supreme Court in Gana v. Minister of Manpower and Immigration, [1970] S.C.R. 699, and this Court in Srivastava v. Minister of Manpower & Immigration, [1973] F.C. 138, were pronounced but I think the intent of Parliament is still what it was under the former legislation, that is to say, to establish and continue as a court of record a board empowered to decide judicially the facts on which the admissibility of a person depends and not merely to pass on the procedural or substantive supportability of the administrative position on such statutory requirements taken by a visa officer.
...
[5] The effect of that decision is, in my opinion, that the hearing of an appeal by the Immigration Appeal Board is a hearing de novo in a broad sense. I again agree with the view of Thurlow, C.J., expressed in Mohamed, at p. 94:
In my opinion the issue to be decided by the Board on an appeal under s.79 of the Act is not whether the administrative decision taken by a visa officer to refuse an application because the information before him indicated that a person seeking admission to Canada was of a prohibited class was correctly taken but the whole question whether when the appeal is being heard, the person is in fact one of the prohibited class.
(Emphasis added)
[13] The Minister submits that the manner in which the visa officer came to her decision is irrelevant because the issue before the Board is whether the final decision was correct. In Rattan v. M.E.I. (1994), 73 F.T.R. 195 (T.D.), Madam Justice Reed stated at page 198:
[6] The Appeal Division treated the appeal under section 77 as more than just a review of the immigration officer's decision on the basis of the evidence before him. The Appeal Division heard additional evidence, from the applicant, which was not before the immigration officer who made the initial refusal. It addressed its reasons to the evidence before it and decided the issues on that basis.
[7] An appeal under section 77 is not a judicial review where only the correctness of the immigration officer's decision on the basis of the material before him or her is under consideration. This is clear from subsection 77(3) which allows for appeals on questions of fact and from the procedure followed which allows the sponsor, in Canada, to call witnesses and other evidence. The Appeal Division's role is not to determine whether the immigration officer's decision was correctly taken, but to determine if the sponsoree is in fact a member of the class of persons excluded by s.4(3) of the Regulations: Mohammed v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 90 (C.A.) at 94 per Thurlow C.J. For that purpose the sponsor's evidence, and the immigration officer's decision must be reviewed in coming to the decision. If the sponsor can satisfy the panel that the immigration officer's conclusions were incorrect, an appeal is allowed.
(Emphasis added)
[14] Therefore, the Minister submits that the Board did not err when it declined to make a ruling regarding possible errors which were committed by the visa officer.
Analysis
[15] Paragraph 77(3)(a) of the Act establishes the right of appeal for sponsors of unsuccessful applicants for landing in Canada:
Appeals by sponsors
77(3) Subject to subsections (3.01) and (3.1), a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds:
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact;
...
[16] In Kahlon, supra, the Federal Court of Appeal held that an appeal to the Appeal Board is a hearing de novo in a broad sense. As discussed in R. Sullivan, Statutory Interpretation (Concord, Ont.: Irwin Law, 1997) at page 41, courts are to use the ordinary meaning of words if there is no reason to reject it in favour of another interpretation. Black's Law Dictionary, 6th ed. (St. Paul, Minn.: West Publishing, 1990) at page 721 defines a "hearing de novo" as follows:
Generally, a new hearing or a hearing for the second time, contemplating an entire trial in the same manner in which the matter was originally heard and a review of the present hearing. Trying matter anew the same as if it had not been heard before and as if no decision had been previously rendered...On hearing "de novo" court hears the matter as a court of original and not appellate jurisdiction.
The Dictionary of Canadian Law, 2nd ed., (Dukelow and Nuse, Scarborough, Ont., Carswell, 1994) at page 549, defines "hearing de novo" thus:
"***[I]s *** an altogether fresh or new hearing and not limited to an enquiry to determine if the tribunal acted properly and correctly on the evidence and material before it ***" Newterm Ltd., Re (1988) 38 M.P.L.R. 17 at 19, 70 Nfld. & P.E.I.R. 216, 215 A.P.R. 216 (Nfld.T.D.), Steele, J.
[17] The Court does not accept the applicant's contention that a hearing de novo applies uniquely to errors of fact. A hearing de novo is undertaken as if the matter were before the Appeal Division for the first time, and the issue is not how the visa officer came to her conclusion, but whether the sponsoree is a member of the family class. An appeal under subsection 77(3) is not a judicial review, but an entirely new hearing in which the Board examines the whole record and hears submissions by the appellant and a case officer. "If the sponsor can satisfy the panel that the immigration officer's conclusions were incorrect, an appeal is allowed," according to Reed, J. in Rattan, supra, p. 199.
[18] In the case at bar, the Board reviewed the evidence which was before the visa officer and discussed her conclusions. The Board also heard submissions regarding the alleged errors. The only step which the Board omitted was to adjudge whether the visa officer was mistaken in law. Although it may have been salutary for the Board to pronounce on whether or not an error occurred, if only to prevent future problems, it was not obliged to do so. It was for the sponsor to convince the Board that the sponsoree is a member of the family class, and as a matter of effective advocacy, counsel may have wished to demonstrate how the visa officer allegedly erred. However, the Federal Court of Appeal envisaged a broad interpretation of the definition of a hearing de novo , and this Court is not inclined to narrow it by obliging the Board to review the visa officer's alleged errors of law. The case of Kahlon, supra, is binding on this Court.
[19] Nor does this Court agree with the applicant's proposition that refusing to pronounce on the correctness of the visa officer's decision entitles the applicant to success on appeal. The Board's purpose is not to uphold nor to reject the visa officer's decision, but to determine whether the sponsoree is a member of the family class. Subsection 77(3) after all, provides for an appeal as such, not judicial review, which could mean rejecting the visa officer's decision if such were the proper course.
[20] The applicant submitted in oral argument that if the visa officer's alleged errors of law are irrelevant to the Board, the applicant's remedy from the decision of the visa officer must be a judicial review in the Federal Court. The proposition is incorrect because it is the Board which is enabled under subsection 77(3) to review decisions of the visa officer on any ground of appeal involving a question of law or fact, or mixed law and fact; the first step is to appeal the decision of the visa officer to the Board in a hearing de novo. Should it make the same error as the visa officer, or a different error, the remedy is then to seek judicial review of the Board's decision in the Federal Court, trial division.
[21] Given the Court's findings regarding the nature of a hearing de novo, and given that this present proceeding is a judicial review of the decision of the Immigration Appeal Division, the Court declines to review the decision of the visa officer, and will review only the applicant's submissions regarding errors which were allegedly committed by the Board.
6. Failure to Advert to the Purposes of the Legislation
[22] The Board stated the following at page 2 of the decision under appeal:
1. Where there is no abuse of the immigration process
Counsel asserts that the definition of "adopted" should be interpreted in light of the intentions of Parliament to prevent abuse of the immigration process. He explained, but tendered no evidence, that Citizenship and Immigration Canada (CIC) sought to prevent the use of adoptions as a means to successfully sponsor otherwise non-eligible applicants; that the purpose of the 1993 amendments to the definition was to prevent adoptions for immigration purpose.
Counsel went on to add that the age of the adopted child is one way to determine if the adoption is genuine. For example, if the adopted child is under the age of 13, this can be assumed to be a bona fide adoption. This would be a child in need of parenting, and there would be no abuse of the immigration process.
I accept that the age of the child at adoption is one factor which may be considered in determining the bona fides of the case, as well as the purpose of the adoption. However I am not persuaded that it is determinative. I note that the 1993 amendments to the Immigration Regulations, 1978 (the "Regulations") do not provide for such a test. Even if I were so persuaded, I have no basis on which to find that 13 is the relevant age. In this case the Applicant was 10 years of age when the adoption was commenced. This is a factor I considered in determining whether the Applicant falls within the family class.
2. Microscopic examination of the relationship not required
Counsel for the Appellant submits that "microscopic"examination of the relationship between appellants and their adoptive child is unnecessary to prevent abuse of the immigration process. He posits that compliance with the definition of "adopted" requires only proof of the existence of a parent and child relationship. He does not propose a test to determine the existence.
In this regard, the Appeal Division is bound by Federal Court dicta in Sharma and Edrada, both of which dealt with the definition of "adopted" prior to its amendment. I note that even prior to adding the elements of a genuine parent and child relationship as well as the immigration purpose to the definition, these decisions of the Federal Court bound the Appeal Division to undertake a factual analysis of the relationship. This issue was also discussed in my decision in Capiendo in which counsel raised this same point.
Legislative Framework
[23] Paragraph 6(2)(a) of the Act allows any Canadian citizen or permanent resident to sponsor the application for landing of any person who is a member of the family class:
Sponsorships
6(2) Any Canadian citizen or permanent resident may, where authorized by the regulations, sponsor the application for landing of
(a) any person who, in relation to the Canadian citizen or permanent resident, is a member of the family class;
...
[24] Subsection 2(1) of the Regulations defines "member of the family class" as follows:
"member of the family class", with respect to any sponsor, means
...
(b) the sponsor's dependent son or dependent daughter
...
[25] Subsection 2(1) of the Regulations defines "dependent daughter" as follows:
"dependent daughter"means a daughter who
(a) is less than 19 years of age and unmarried,
...
[26] Subsection 2(1) of the Regulations defines "daughter" as follows:
"daughter" means, with respect to a person, a female
...
(b) who has been adopted by that person before having attained 19 years of age;
[27] Subsection 2(1) defines "adopted" 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.
(Emphasis not in text)
Applicant's Submissions
[28] The applicant submits that the Board erred in failing to have regard to the purpose of the legislation when it determined that Qi Wen Zhao did not meet the definition of "adopted" under the Regulations. To aid in determining the purpose of the legislation, the applicant submits the Regulatory Impact Analysis Statement, C. Gaz. 1993.II.630. (the RIAS) which accompanied amendments to the Regulations concerning adopted children:
Description
These amendments remove the previous distinction between children adopted abroad and natural born children for the purposes of determining family membership. To reduce the potential of adoptions of convenience (adoptions undertaken for immigration purposes or for eventual sponsorship of the birth family), the amendments provide for adoptions undertaken in situations where the child is in need of parental care.
In the past, adopted children were eligible for family class membership only if the adoption had taken place before the child had reached the age of thirteen. Similarly, an adopted child was eligible to be admitted as dependant accompanying an independent immigrant or a sponsored family class member if the child had been adopted before reaching the age of thirteen.
These provisions prevented adoption in cases where the adopted child over thirteen years of age was genuinely in need of parental care. This concern has been raised by the Parliamentary Subcommittee on Equality, in its Report Equality for All. As well, several court actions have been initiated against the previous provisions alleging that they were discriminatory and contrary to the equality provision of the Canadian Charter of Rights and Freedoms. In addition, the age barrier was not consistent with the United Nations Convention on the Rights of Children and did not reflect the negotiations on international adoption under the auspices of the Hague Conference on Private International Law.
The amendments extend the eligibility of an adopted child for purposes of immigration to children under nineteen years of age, thus bringing the adoption provisions in line with the other immigration provisions dealing with sponsorship of children and dependency.
The amendments also seek to address the potential for use of the adoption provisions to circumvent immigration requirements. The family relationship created by adoption would normally preclude the ability of the child to sponsor the birth family. To prevent the misuse of the adoption provisions for the purposes of immigration, regulations are amended to prohibit adoptions of convenience. These amendments are modelled on the marriage of convenience clause and permit an assessment of the authenticity of the adoption.
Alternatives Considered
Because of the potential for abuse, careful consideration was given to retaining the status quo. However, it was concluded that it was necessary to develop an approach which balances considerations of equality and fairness, concerns regarding the welfare of the child and the use of the family class provisions to circumvent immigration requirements.
[29] The applicant also submits the following affidavit by Richard Clive Harrison:
I, Richard Clive Harrison, of the City of Nepean, in the Province of Ontario, MAKE OATH AND SAY AS FOLLOWS:
1. I am a Program Development Officer with the Policy and Program Development Branch of the Canada Employment and Immigration Commission.
2. I have reviewed policy files, from 1961 to the present [1997], of the Canada Employment and Immigration Commission at its headquarters in Hull, Quebec, as well as files of the said Commission and of the former Department of Manpower and Immigration held by the National Archives of Canada with respect to adoption in the immigration context. What follows is information I obtained from the said files.
3. In approximately 1974, a problem came to light, namely persons arriving in Canada for the purpose of being adopted by relatives in the hope of then being landed pursuant to paragraph 31(1)(f) or (g) of the Immigration Regulations Part I.
4. Two provinces, Manitoba and Ontario, expressed concerns about this situation. The problem continued into 1976, when the Ministry of Community and Social Services of the Province of Ontario reported that there were approximately 900 sibling adoptions in Ontario in 1975, the vast majority of which were of persons from outside Canada. Very few of these children were said to fall within the class of persons described in paragraph 31(1)(g) because they had not been nominated or placed with an adoption agency; rather one or both parents were usually living overseas and were no worse off materially than any of their compatriots.
5. A sampling of six councillors in a Canada Immigration Centre in the Ontario Region of the Department of Manpower and Immigration over a two week period some time prior to April [illegible] 1976 showed that the six councillors had received a total of 16 applications on behalf of children adopted in Canada. Of these, nine were for siblings, five were for nephews and nieces and two were from putative fathers. Three of the 16 children were under 13 years of age, while 5 had passed their seventeenth birthday. This sampling was thought to be fairly representative of the situation in the Region.
6. It also became obvious that the age of adoption for adopted sons and daughters in the sponsored dependant category of immigrants was used to circumvent the selection process by permitting the adoption and sponsorship of persons who could immediately enter the labour market on arrival. Therefore, a person who should have been assessed as an independent applicant would enter as an adopted son or daughter and avoid the labour market assessment in the selection criteria. This avenue was also open to applicants who could not qualify in the independent category, but could arrange to be adopted. The result was that a movement of unselected , poorly qualified young workers was created.
7. The records indicate that the aim of the Department of Manpower and Immigration and the provinces throughout was to develop regulations to recognize adoptions in the immigration process while preventing abuse. The issue was considered from a number of perspectives, although no thorough statistical study of the problem is recorded as having been made. The underlying concerns were to protect the best interests of children, foster the development of a true parent-child relationship, and prevent abuse of the immigration program. Solutions proposed included requiring a minimum age difference between parent and child, adjusting the age limit for adoption to correspond [illegible].
8. It is against this backdrop that the Immigration Regulations, 1978 required that sons and daughters be adopted prior to obtaining thirteen years of age to qualify for the benefits enjoyed by sons and daughters qua sons and daughters under the Immigration Regulations, 1978. The proposal of age 13 was adopted to prevent the kind of abuse of the immigration program observed.
9. I make this affidavit in respect to an appeal by Gerardo Morzan Decayanon and not for any improper purpose.
[30] The applicant submits that the current definition of "adopted" has two purposes: to allow the adoption of children who are under the age of 19, and to prevent the circumvention of immigration requirements. The applicant submits that the law tries to prevent two types of immigration abuse. The first is when a child enters Canada to sponsor his or her birth family. The second is when a child is adopted to avoid the more demanding evaluation for independent workers and obtains employment upon arrival in Canada. The applicant submits that it is the latter type of abuse which is targeted by the legislation. The applicant defines the goals of the legislation as preventing the illegal immigration of children who then start working, or who fall into the social system for support, or who are forced by their adoptive parents into the job market, or into the social welfare system.
[31] In the case at bar, the child was said to have been adopted at age 10. The applicant submits that she was not adopted to enter the labour market, nor was there any evidence that her adoptive parents would abandon her to the welfare system. Therefore, the Board erred because it never referred to the potential abuse that would be caused to the immigration system by allowing Qi Wen Zhao to enter Canada.
[32] The applicant submits that the Board should not evaluate the quality of the parent/child relationship, but rather its existence. Nor should the Board consider whether the adoption is to provide the child with a stable home environment. The applicant submits that an adoption is not genuine only when it might abuse the immigration or social welfare systems, and the Board must specifically make such a finding.
Minister's Submissions
[33] The Minister submits that the purpose of the definition of "adopted" is to prevent the misuse of the adoption provisions for improper immigration purposes such as circumventing the legislated selection process. The concerns cited by the applicant are some of the potential outcomes of abuse of the immigration program.
[34] To address potential abuse of the immigration program, urges the Minister at paragraph 22 of her memorandum of argument, legislators specifically directed the Board to consider whether there is a genuine parent/child relationship. It is, therefore, not for the Board to look beyond the statutory test and to decide to admit a child because, notwithstanding the absence of a genuine relationship, her admission would not result in pressures on the social services system. The Immigration Appeal Division is driven to determine whether there be a genuine parent-child relationship and it ought never to duck that duty. The Board resolutely faced it, here.
Analysis
[35] The Court is not convinced that the applicant's version of statutory purposes of the definition of "adopted" is entirely correct. Before the amendment in 1993, the definition of "adopted" under the Immigration Regulations, C.R.C., c. 940, s.2 (1978) stated:
"adopted", with respect to a child, means adopted under the laws of any province of Canada, or under the laws of any country other than Canada or any political subdivision thereof where the adoption created a relationship of parent and child and was completed prior to the 13th birthday of the child.
[36] The definition of "adopted" was amended by SOR/93-44 to its current form:
"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.
[37] The first ch