Date: 19980721
Docket: IMM-3139-97
BETWEEN:
KHANH DUC VUONG,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DUBÉ J :
[1] This application is to review and set aside the decision of the Appeal Division of the Immigration and Refugee Board ("Appeal Division") on June 17, 1997, wherein the applicant's appeal was dismissed for lack of jurisdiction.
[2] On January 26, 1987, the applicant applied to sponsor his adopted daughter. In support of his application, he obtained from the People's Committee of the Socialist Republic of Vietnam, in the district where he formerly resided and where the adoption took place, a document confirming that Xuan Cuc Vuong ("Xuan") was his adopted daughter. In March 1993, Xuan's application for landing was refused on the ground that she was not a member of the "family class" described in the Regulations because she had failed to establish she was the legally adopted daughter of the applicant.
[3] Prior to the hearing before the Appeal Division, the applicant obtained further confirmation from the People's Court of the Socialist Republic of Vietnam that Xuan was his adoptive daughter.
[4] But the Minister made inquiries through the Canadian Embassy in Bangkok to the Vietnamese government to find out if the child had been legally adopted by the applicant. On April 20, 1996, that government replied that, according to the present law of adoption, all adoptions are required to be approved by the People's Committee and must be recorded in the Household Register. Therefore, since the adoption of the applicant's daughter was not recorded in the Household Register, the Vietnamese government could not confirm that the child had been adopted. Consequently, the Appeal Division determined that the daughter was not a member of the "family class" and dismissed the appeal for want of jurisdiction.
[5] At the hearing, the Appeal Division considered documentary evidence comprising a package of 50 items, including sworn affidavits. It heard four witnesses. One was David Vien-Van Chu, a former lawyer practicing in Vietnam between 1969-1975 in the area of public adoptions. He made it quite clear that customary adoption was a usual and frequent practice among the Vietnamese people and that there was apparently a lax approach to making changes in the Household Registers.
[6] The panel found that the applicant's own attempts to have the Household Register changed through addition of the applicant's name were genuine but were thwarted by the nature of the administrative and bureaucratic processes. It held "the testimonies to be genuine, credible and forthright in nature, " but concluded that it could not look behind the official determination of the government of Vietnam.
[7] Shortly before the instant judicial review hearing before this Court the respondent consented to an order setting aside the Appeal Division's decision and referring the matter back for rehearing and redetermination by a differently constituted panel. However, counsel for the applicant seeks an order from the Court directing the Appeal Division to find that the adopted daughter in question is a member of the "family class" and has been legally adopted.
[8] The Federal Court of Appeal on March 4, 1997, in Turanskaya v. Canada (Minister of Citizenship and Immigration)1 confirmed the decision of Simpson J. of this Court that the Federal Court of Canada, Trial Division, has jurisdiction under subsection 18.1(3)(b) of the Federal Court Act to make a direction compelling the Convention Refugee Determination Division to achieve a specific result. And also that it was appropriate to do so where, for the legal error, the alien would necessarily have been found to be a convention refugee. Stone J.A. said as follows, at p. 237:
| [6] The "directions" which the Trial Division is authorized to give under s. 18.1(3)(b) will vary with the circumstances of a particular case. If, for example, issues of fact remain to be resolved it would be appropriate for the Trial Division to refer a matter back for a new hearing before the same or differently constituted panel depending on the circumstances. That, however, is not the case here. The only issue to be resolved by the Trial Division was whether the Refugee Division had erred in law in determining the respondent not to be a Convention refugee because of her former habitual residence in the Ukraine. |
[9] In the circumstances of this case, I find that it is appropriate to dispense the Appeal Division from going through another full hearing since it was in agreement with the facts but committed an error of law in holding that it had no jurisdiction in the matter.
[10] The opinion obtained by the Minister from the People's Committee of the Social Republic of Vietnam refers to the present status. However, it is the law applicable at the time of the adoption that is relevant for the purpose of determining whether there has been a valid adoption under the Immigration Act and the Regulations. The uncontradicted evidence provided by David Vien-Van Chu was clearly to the effect that customary adoption was a usual and frequent practice among the Vietnamese people at the relevant time and that there was a lax approach to the changing of Household Registers because of bureaucratic difficulties.
[11] Consequently, the matter is referred back to a differently constituted panel of the Appeal Division with directions to find that Xuan, the adopted daughter is a member of the "family class" pursuant to section 2 of the Immigration Regulations.
[12] In my view, there is no question of general importance to be certified under subsection 83(1) of the Immigration Act.
OTTAWA, Ontario
July 21, 1998
Judge
__________________1 (1997), 210 N.R. 235.