CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Permanent Residents |
Frounze v. Canada (Minister of Citizenship and Immigration)
IMM-819-03
2004 FC 331, Russell J.
26/2/04
13 pp.
Judicial review of Board's decision dismissing appeal of denial of applicant's sponsorship of natural parents-- Applicant adopted by elderly relatives to circumvent Soviet law by which apartment would revert to State if died without heir--No genuine parent-child relationship created, intended --Board holding natural parents not members of family class --As to preliminary issue that leave application out of time, matter res judicata as leave already granted--Issue of regulatory interpretation: when "adopted" used in Immigration Regulations, 1978, s. 2(1), whether always need to consider whether adoption at issue created genuine relationship of parent and child--Borno v. Canada (Minister of Citizenship and Immigration) (1996), 118 F.T.R. 104 (F.C.T.D.) distinguished--Immigration Regulations (Regulations), s. 2(1) definition of "adopted" including "where the adoption creates a genuine relationship of parent and child"--Therefore, whenever "adopted" comes up for consideration under Regulations, not sufficient to consider bare legality of adoption, decision maker must also determine whether genuine relationship of parent and child created--Under Regulations, s. 2(1), someone will not have been adopted if no genuine relationship of parent and child created--In such case, mother and father of such person will remain male and female of whom person is the issue--Applicant issue of natural parents who she now wishes to sponsor--Board merely assumed because applicant adopted legally in accordance with Soviet law she could not sponsor her natural parents--Failed to assess whether adoption created genuine relationship of parent and child--Error of law by Board-- Application allowed--Question certified: must Appeal Division always address genuineness of parent-child relationship under s. 2(1) of Immigration Regulations, 1978, even when adoption in question established as lawful in accordance with laws of province or country other than Canada?--Immigration Act, R.S.C., 1985, c. I-2, s. 77(3) (as am. by S.C. 1995, c. 15, s. 15)--Immigration Regulations, 1978, SOR/78-172, s. 2(1) "adopted" (as am. by SOR/93-44, s. 1).