Date: 20180312

Docket: IMM-3802-17

Citation: 2018 FC 288

Ottawa, Ontario, March 12, 2018

PRESENT:  The Honourable Madam Justice Gagné

JUDGMENT AND REASONS

I.  Nature of the Matter

[1]  Mr. Patrice Essindi seeks judicial review of a decision of the Immigration Appeal Division [IAD] dismissing his appeal of an immigration officer’s decision refusing a permanent resident visa to Alima Fanny Essindi [Fanny], whom he considers to be his daughter. The Applicant had sought to sponsor Fanny’s application for permanent residence under the family class. The IAD found that Fanny does not meet the definition of “dependent child” in the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] and thus cannot be considered a member of the family class.

II.  Preliminary Question

[2]  The Respondent argues that the Applicant’s affidavit contains an exhibit and facts that were not before the IAD. Specifically, at paragraph 16 of his affidavit, paragraph 14 of his Memorandum of Argument and paragraph 40 of his Reply Memorandum, the Applicant states that he is not permitted to adopt Fanny under Cameroonian law, since Cameroon already recognizes the existence of a filial relationship between himself and Fanny. The Applicant supports this statement with a legal opinion from Me Wette Bontems, dated nearly a year after the IAD’s decision.

[3]  The Respondent argues that this information must be disregarded by the Court, since the general rule is that a reviewing court must only consider the evidence that was before the administrative decision-maker and none of the few exceptions to that rule apply in this case (Henri v Canada (Attorney General), 2016 FCA 38 at paras 39-41; Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 19-20). Although I agree with the Respondent that this information and Me Bontems’ letter are inadmissible, since they relate to the merits of the matter and do not fall within one of the recognized exceptions to the general rule, I do not believe that it has any impact on the outcome of this application for judicial review. As I told the parties during the hearing, I am willing to take for granted that the Applicant cannot legally adopt Fanny in Cameroon.

III.  Facts

[4]  The Applicant is a Canadian citizen who was born in Cameroon. He immigrated to Switzerland in 1994 where he resided until 2001. When he completed his application for permanent residence in Canada in 2001, he did not declare Fanny as a non-accompanying family member since he was not aware of her existence.

[5]  In 2009, the Applicant visited Cameroon and met Ms. Mekui Koungou Josephine, an old acquaintance with whom he had a brief relationship in 1998. Ms. Mekui informed the Applicant that he was the biological father of her daughter Fanny, born on March 19, 1999.

[6]  The Applicant met Fanny on his next visit to Cameroon in 2010 and since that time, he has maintained a relationship with her, travelling to see her at least once each year. His wife and sons frequently travel to Cameroon with him to visit with Fanny and spend time together. The Applicant often speaks on the phone with Fanny when he is in Canada. He provides financial assistance to Fanny and her mother, which covers her basic needs, schooling, and medical expenses. In January 2014, Ms. Mekui signed a notarized statement granting the Applicant and his spouse sole custody of Fanny, with exclusive decision-making authority and travel rights.

[7]  On January 9, 2013, the Applicant applied to sponsor Fanny’s application for permanent residence under the family class. During the course of the application process, the Applicant was asked to take a DNA test to confirm his status as Fanny’s biological father. A DNA test was sought in this case because (i) the Applicant did not declare Fanny on his permanent residence application in 2001; and (ii) while Fanny’s birth certificate identifies the Applicant as her biological father, verification with the Cameroonian vital statistics authorities indicated that a valid birth certificate cannot have been issued based exclusively on the mother’s declaration as to the father’s identity. The DNA test came back negative.

[8]  On April 7, 2016, an immigration officer at the Canadian Embassy in Dakar, Senegal denied Fanny’s application for permanent residence and the Applicant’s sponsorship application. The immigration officer summarized the applicable legislative provisions and explained that Fanny does not meet the conditions set out in the Immigration and Refugee Protection Act, SC 2001 c 27 [IRPA], and the Regulations to become a permanent resident under the family class. Paragraph 117(1)(b) of the Regulations specifies that a foreign national is a member of the family class if he or she is a “dependent child” of the sponsor. Section 2 of the Regulations defines “dependent child” as the biological or adopted child of the parent who is in a position of dependency with the parent. The relevant legislative provisions are reproduced in Annex A to these reasons.

[9]  Since the DNA test established that Fanny is not the Applicant’s biological child, the immigration officer found that Fanny does not meet the definition of “dependent child” in the Regulations, excluding her from consideration under the family class.

[10]  The Applicant appealed the immigration officer’s decision to the IAD, which dismissed his appeal on November 25, 2016.

IV.  Impugned Decision

[11]  The IAD concluded, as did the immigration officer, that Fanny does not meet the definition of “dependent child” since she is not the Applicant’s biological or adopted child. This means that she cannot be sponsored by the Applicant for the purpose of becoming a Canadian permanent resident under the family class. Furthermore, the IAD noted that it is not permitted to consider humanitarian and compassionate [H&C] grounds at the appeal level, as specified in section 65 of the IRPA.

V.  Issue and Standard of Review

[12]  The Applicant submits that this application for judicial review raises numerous issues. However, his framing of the issues is a result of his misunderstanding that H&C considerations would apply to his and Fanny’s applications. It bears mentioning that the matter before the Court is a judicial review of the IAD’s decision and not that of the immigration officer. Keeping that in mind, I am of the view that this application raises a single issue:

Did the IAD err in finding that Fanny was not a “dependent child” as defined in the Regulations?

[13]  The IAD’s analysis of whether Fanny is the Applicant’s biological child or adopted child, according to the definition of “dependent child” in the Regulations, should be assessed on the reasonableness standard since it is a question of mixed fact and law (Canada (Public Safety and Emergency Preparedness) v Martinez-Brito, 2012 FC 438 at para 16; Boachie v Canada (Citizenship and Immigration), 2010 FC 672 at para 21; Azizi v Canada (Minister of Citizenship and Immigration), 2005 FC 354 at para 14, aff’d Azizi v Canada (Minister of Citizenship and Immigration), 2005 FCA 406).

[14]  The reasonableness standard requires that this Court determine whether the IAD’s decision falls within a range of “possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).

VI.  Analysis

[15]  I am of the view that the IAD’s decision is reasonable. The Applicant believes that his and Fanny’s applications should have been considered by the immigration officer and the IAD on H&C grounds. I respectfully think that he is mistaken.

[16]  H&C grounds may be considered by an immigration officer in his or her assessment of a foreign national’s application for permanent residence in three ways: via subsections 25(1), 25.1(1) and 25.2(1) of the IRPA. Only the first two bear further examination in this case.

[17]  Subsection 25(1) stipulates that the Minister may consider H&C grounds on the request of a foreign national outside Canada who applies for a permanent resident visa “and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act” on this basis.

[18]  Subsection 25.1(1) provides that, “[t]he Minister may, on the Minister’s own initiative, examine the circumstances of a foreign national who is inadmissible – other than under sections 34, 35 or 37 – or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act” on H&C grounds. The Minister is directed to consider the best interests of a child directly affected by its assessment in both subsections 25(1) and 25.1(1) of the IRPA.

[19]  There is no evidence that Fanny requested that the immigration officer consider her application for permanent residence under subsection 25(1) of the IRPA.

[20]  However, subsection 25.1(1) of the IRPA allows an immigration officer to consider H&C grounds on his or her own initiative, a fully discretionary power. Although the immigration officer’s written decision denying Fanny’s application for permanent residence does not mention H&C factors, the Global Case Management System [GCMS] notes indicate that such factors were taken into consideration. The immigration officer considered the relationship between the Applicant and Fanny and balanced it against Fanny’s age (17 at the time) and the fact that she had always lived in Cameroon with her mother and siblings. Since those reasons did not find their way to the written decision that was sent to Fanny, they cannot be seen as the basis for the immigration officer’s decision, nor did they have to be, given that the immigration officer was not obliged to consider H&C factors.

[21]  I disagree with the Applicant’s allegation that, “[t]his Court is left in a vacuum in reading the reasons of the IAD and the Immigration Officer” (Applicant’s Further Memorandum at para 11). Rather, I believe that the IAD’s decision clearly establishes the reasons for its dismissal of the Applicant’s appeal.

[22]  Section 65 of the IRPA stipulates that the IAD may not consider H&C considerations, “unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations.” Once the IAD reasonably concluded that Fanny is not a member of the family class because she is not the Applicant’s biological or adopted child, it was precluded from considering H&C factors.

[23]  The Applicant understands the immigration officer’s decision as having determined that Fanny “is not [his] daughter, de facto daughter or de facto adopted daughter”. That is incorrect. The immigration officer determined that Fanny is not the Applicant’s biological child.

[24]  The immigration officer was not asked to consider whether Fanny may be a de facto daughter or a de facto adopted daughter.

[25]  Furthermore, Fanny did not seek judicial review of the immigration officer’s decision not to consider H&C factors, nor of the decision not to justify denying her application for permanent residence on H&C factors. In Sultana v Canada (Citizenship and Immigration), 2009 FC 533, this Court stated that :

[15] It is worth mentioning that Mr. Arif appealed this decision to the Immigration Appeal Division of the Immigration and Refugee Board (the IAD). The appeal was dismissed without a hearing on February 4, 2009, on the ground that the IAD has no discretionary jurisdiction to consider humanitarian and compassionate considerations. Relying on section 65 of the IRPA and on the jurisprudence from this Court (most notably Huang v Canada, 2005 FC 1302), the IAD ruled that the proper forum in which to challenge a section 25 H&C decision by the Minister is to seek judicial review of that decision by the Federal Court. This was clearly the right decision to make.

[26]  Rather, as Fanny’s sponsor, the Applicant appealed the immigration officer’s decision to the IAD (pursuant to subsection 63(1) of the IRPA) and is now seeking judicial review of the IAD’s decision. The Applicant relies heavily on this Court’s decision in Zhong v Canada (Citizenship and Immigration), 2017 FC 223, to support his position. In that case, the applicant’s permanent residence application as a member of the family class was initially denied. The applicant, by way of a representative retained by the applicant’s parents, sought a reconsideration of the immigration officer’s decision on H&C grounds, specifically requesting that the immigration officer consider the applicant as a de facto family member, taking into account the best interests of the child. The immigration officer denied that request on the basis that there was insufficient evidence to conclude that the applicant was a de facto family member. Justice Keith M. Boswell allowed the judicial review and sent the decision back for reconsideration. He was of the view that the immigration officer failed to reference key pieces of evidence that “strongly suggest that the Applicant is a de facto daughter of Mr. Zhong and Ms. Fan” (at para 30).

[27]  Contrary to the Applicant’s submissions, the Zhong case is not applicable here, since Fanny and the Applicant never sought to have Fanny’s application considered or reconsidered on H&C grounds. On appeal, the IAD was statutorily precluded from doing so.

VII.  Conclusion

[28]  Since the IAD’s decision to dismiss the Applicant’s appeal was reasonable, and is defensible in respect of the facts and the law, this application for judicial review is dismissed. It remains open for Fanny to make another application for a permanent resident visa, accompanied by written information in support of a request for H&C consideration under subsection 25(1) of the IRPA.

[29]  The parties did not propose any question of general importance for certification and none arises from this case.

Annex A

Legislative provisions

Immigration and Refugee Protection Act

Loi sur l’immigration et la protection des réfugiés

Immigration and Refugee Protection Regulation

Règlement sur l’immigration et la protection des réfugiés

JUDGMENT in IMM-3802-17

THIS COURT’S JUDGMENT is that:

• 1.This application for judicial review is dismissed;

• 2.No question of general importance is certified.

“Jocelyne Gagné”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: