Docket: IMM-7567-10
Citation: 2011 FC 1382
Ottawa, Ontario, November 29, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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ILEEN ROSE MASSEY
VERONICA MASSEY
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
The
applicants, Ms. Ileen Rose Massey and her biological daughter, Veronica, seek
permanent residence in Canada. Ileen’s mother, Veena Dass, is a Canadian
citizen and sought to sponsor Ileen’s and Veronica’s applications. In all
likelihood, these applications could have been processed in a fairly
straightforward manner but for a single fact that complicated everything. In
2001, Veena adopted Veronica, her granddaughter.
[2]
An
overseas visa officer denied the applicants their requests for permanent
residence in the family class. The officer determined that Veronica’s
application had to be assessed separately from Ileen’s because Veronica was the
legally adopted child of Veena, not the dependent child of Ileen. The officer
concluded that Ileen was not a member of Veena’s family class because, being 37
years old, she was not a dependent child of Veena. Further, she was not
entitled to an exemption on humanitarian and compassionate [H&C] grounds.
[3]
The
applicants claim that the officer fettered his discretion by not analyzing the
H&C request in relation to Veronica. They also submit that his decision was
unreasonable. They ask me to set aside the officer’s decision and refer the
matter back for re-determination.
[4]
I
cannot find grounds to overturn the officer’s decision. Based on the evidence
before him, particularly the evidence relating to Veronica’s adoption, the
officer really had no choice but to exclude Veronica from this application.
Veronica’s situation must turn on an assessment of the genuineness of the
adoption, about which there was little or no evidence before the officer. In
addition, I cannot find that the officer’s decision was unreasonable. He
weighed the relevant H&C factors relating to Ileen’s circumstances. The
fact that he gave less consideration to Veronica was a natural consequence of
the earlier conclusion that her situation had to be assessed separately.
Accordingly, I must dismiss this application for judicial review.
[5]
The
issues are:
1.
Did the
officer fetter his discretion by excluding Veronica from the application?
2.
Was the
officer’s decision unreasonable?
II. Factual Background
[6]
Veena
came to Canada in 1987 as a
live-in-caregiver. In 1989, she sponsored her husband and three daughters,
including Ileen, to come to Canada. In 1992, Veena’s husband and two of her
daughters left India for Canada. However, because she
had been married the year before and was pregnant, Ileen stayed behind in India. Veronica
was born in April 1992.
[7]
Ileen
claims that her husband was emotionally and physically abusive and that they
separated in April 1993.
[8]
In
2001, Ileen and her estranged husband signed an adoption deed making Veena the
adoptive mother of Veronica.
[9]
In
2003, while she was visiting her family in Canada, Ileen left
Veronica in her estranged husband’s care. She later left for the United States
to obtain a work permit in Canada under the live-in-caregiver program. She
was granted a permit in May 2003.
[10]
However,
Ileen claims that in 2004 she discovered that her estranged husband had left
Veronica with a neighbour and that she was no longer attending school. Ileen
decided to return to India to look after Veronica, even though she
had not completed her 24-month work term in Canada which she required
in order to qualify for permanent residence.
[11]
In
2005, Ms. Massey obtained a divorce from her husband.
[12]
In
2009, Veena granted guardianship of Veronica to Ileen. Later that year, Veena
sought to sponsor Ileen and Veronica as members of the family class. Their
application was reviewed by the Canadian High Commission in New Delhi and, in
November 2010, Ileen and Veronica attended an interview with the visa officer.
[13]
The
officer refused the sponsorship application. He also dismissed the request for
relief on H&C grounds.
III. The Officer’s Decision
[14]
At
the outset of the interview, the officer advised the applicants that Ileen did
not meet the definition of a member of the family class, and that Veronica
could not be included on Ileen’s application because she was adopted.
[15]
After
questioning the applicants, the officer informed them that the H&C factors
in this case did not warrant an exemption. He noted that Ileen had used other
means in the past (the live-in caregiver program) that could have led to her
being landed in Canada, and that this option was still available to
her.
[16]
The
officer also acknowledged that Ms. Massey and Veronica were the last two family
members in India. However, while
Veronica is Ileen’s biological daughter, the applicants were, legally speaking,
now sisters. It is not unusual for the parents of a family and two of their
children to reside in Canada, while other children remain in India; this fact
alone did not constitute undue hardship.
[17]
The
officer noted that since Veronica is over 18 years of age, it was unnecessary
to consider the best interests of a child. He also observed that the adoption
had not severed the parent-child relationship between Ileen and Veronica. By
contrast, there was no such relationship between Veena and Veronica. The
officer clearly doubted that a future application by Veronica as a member of
the family class would succeed, notwithstanding the adoption by Veena. A
separate H&C application would probably be her only option.
[18]
The
officer expressly considered all ten of the applicants’ submissions in favour
of an H&C exemption.
[19]
First,
the applicants pointed out that Ileen had been included in Veena’s original
sponsorship application. However, she was ineligible as she was already
married. The officer found that the mere fact that some family members have
been separated by immigration does not create disproportionate hardship.
[20]
Second,
Ileen and Veronica are the last two family members in India. Again, the
officer noted that this, in itself, does not represent a hardship. The family
is in no way prohibited from visiting them in India. Veena last
visited India in 2001.
[21]
Third,
Ileen had to interrupt her live-in caregiver program in Canada in order to
return to India to care for
Veronica. The officer noted that Ileen could still enter Canada under this
program without an H&C exemption. This would not constitute undue hardship.
[22]
Fourth,
Ileen been denied temporary residence visas since 2004 because the officers
reviewing her applications were not satisfied she would leave Canada at the end
of her authorized stay. Since then, no member of the family in Canada has
visited her in India. The officer concluded that there does not
appear to be a close family relationship between Ileen and her family in Canada.
[23]
Fifth,
Veena apparently suffers from anxiety and depression due to her separation from
her daughter. However, she made no effort to visit India since 2001.
The officer found that this long period of separation was within Veena’s
control.
[24]
Sixth,
Veronica has also been denied a temporary residence visa. However, this was not
relevant to this application. Further, Veena has not visited Veronica in India since she
adopted her.
[25]
Seventh,
the family has been separated for 17 years. Again, the officer noted that this
was within Veena’s control.
[26]
Eighth,
family reunification is a goal of the Immigration and Refugee Protection Act,
SC 2001 c 27 [IRPA]. However, the officer observed that there were other legal
means available to the family that did not require an H&C exemption. The
officer found that the family had not pursued those options.
[27]
Ninth,
Ileen alleged that she had been violently abused at the hands of her former
husband. The officer noted that there was no evidence that charges had ever
been laid. Further, in granting the couple a divorce, the Indian Court found that
the allegations of abuse had not been substantiated. In addition, this was not
an important factor given that Ileen has had no contact with her former husband
for many years.
[28]
Finally,
Ileen showed that she is able to establish herself in Canada when she was
previously enrolled in the live-in caregiver program. The officer responded by
pointing out again that she could reapply under that program if she wished.
[29]
The
officer ultimately concluded that an H&C exemption was not warranted in
this case because Ileen was not facing a disproportionate hardship. If she
wished to immigrate to Canada, other means were available to her.
IV. Issue One – Did the officer
fetter his discretion by excluding Veronica from the application?
[30]
The
applicants submit that the officer should have proceeded in one of three ways.
He should have determined that Veronica was Veena’s dependent child by virtue
of the adoption and dealt with the sponsorship application accordingly, or
instructed her to complete a separate application. Alternatively, he should
have requested the additional documentation that was needed to make that
determination. In the further alternative, he should have considered whether
Veronica was a “de facto” dependent of Ileen even though she had been legally
adopted by Veena. The applicants say that this latter request was explicitly
made in their submissions to the officer, and that the officer fettered his
discretion by not responding to it.
[31]
The
applicants also maintain that the officer erred by failing to consider the
impact on Veronica if Ileen reapplied under the live-in caregiver program, as
the officer had proposed. As a consequence, Veronica, then 18, would have been
left alone in India.
[32]
As
I read the officer’s decision, he found that, by virtue of the adoption,
Veronica had to submit a separate application in which the circumstances of the
adoption could be reviewed to determine whether she could be sponsored by Veena
in the family class or, if not, whether there were H&C grounds in her
favour. I cannot see any other realistic way of dealing with the unusual
circumstances before him.
[33]
The
law requires a serious analysis of adoptions in the immigration context. This
could only be done, as the officer suggested, in a separate application.
[34]
Regarding
the question whether the officer could consider Veronica to be Ileen’s de facto
dependent, I note that the applicants requested consideration of Veronica as a
“de facto dependent” in the covering letter accompanying their application,
which stated:
According to this definition,
Veronica would not be considered the “dependent child” of Ms. Massey because
she has been adopted by a person other than the spouse or common law partner of
the parent, namely her grandmother. If for any reason this is not so
determined, then it is requested that Veronica be considered a dependent child
for the purposes of this application.
[35]
Given
this request, was the officer bound to consider whether Veronica was a de facto
dependent? In my view, in the very unusual facts of this case, no.
[36]
A
de facto dependent is a “vulnerable person” who, despite not meeting the
definition of a family member, is reliant on financial and emotional support from
a person applying to immigrate to Canada: see Frank v Canada (Minister of
Citizenship and Immigration), 2010 FC 270 at para 29. In other words, a
de facto dependent is a person who has been found not to be a member of the
family class. Here, no finding has yet been made that Veronica is not a member
of the family class. By virtue of the adoption, she may qualify as Veena’s
daughter.
[37]
Not
surprisingly, neither IRPA nor immigration guidelines specifically contemplate
the unusual situation that was before the officer. Section 8.3 of the Overseas
Processing Manual OP-4 (Processing of Applications under s 25 of the IRPA)
describes “de facto family members” as follows:
De facto family members are
persons who do not meet the definition of a family class member. They are, however, in a
situation of dependence that makes them a de facto member of a nuclear family
that is either in Canada or that is applying to
immigrate. Some examples: a son, daughter, brother or sister left alone in the
country of origin without family of their own; an elderly relative such as an
aunt or uncle or an unrelated person who has resided with the family for a long
time. Also included may be children in a guardianship relationship where
adoption as described in R 3(2) is not an accepted concept. Officers should
examine these situations on a case-by-case basis and determine whether
humanitarian and compassionate reasons exist to allow these children into Canada. (Emphasis added.)
[38]
While
Veronica was in a guardianship relationship with Ileen, her biological mother,
she was also the legally adopted child of Veena. This was not a situation where
adoption was “not an accepted concept”. The manual goes on to describe the
factors that are relevant:
• whether
dependency is bona fide and not created for immigration purposes;
• the
level of dependency;
• the
stability of the relationship;
• the
length of the relationship;
• the
impact of a separation;
• the
financial and emotional needs of the applicant in relation to the family unit;
• the
ability and willingness of the family in Canada to provide support;
• the applicant's
other alternatives, such as family (spouse, children, parents, siblings, etc)
outside Canada able and willing to provide
support;
• the documentary
evidence about the relationship (e.g., joint bank accounts or real estate
holdings, other joint property ownership, wills, insurance policies, letters
from friends and family); and
• any
other factors that are believed to be relevant to the H&C decision.
[39]
While
the applicants did raise the issue of de facto dependency in their covering
letter, their submissions did not address the many factors the officer would
have had to consider.
[40]
Moreover,
H&C exemptions are meant to be an exceptional form of relief. Other avenues
of relief should be pursued first:
A request for consideration on
humanitarian and compassionate grounds must be made in writing and must
accompany an application for permanent residence made under one of the existing
three classes. A determination must first be made that the applicant does not
comply with one of these three classes before such a request is reviewed or
considered. (OP-4 Manual, s 5.3, emphasis added.)
[41]
In
the circumstances, a decision had to be made on the question of Veronica’s
eligibility in the family class before considering the possibility that she
might be a de facto dependent of Ileen.
[42]
As
for Veronica’s best interests, I find that the officer put forward the best
solution available in the circumstances before him – that Veronica should seek
permanent residence on the strength of her own application. Veronica’s (and
Ileen’s) best interests are likely best served by seeking entry to Canada in the
manner proposed by the officer. To my mind, this was a sufficient consideration
of Veronica’s best interests in the circumstances.
V. Issue Two – Was the officer’s
decision unreasonable?
[43]
The
applicants submit that the interview with the officer demonstrates that the adoption
of Veronica was designed to protect her, which demonstrated Veena’s love for
and her relationships with both Ileen and Veronica. The applicants also assert
that the later decision to grant Ileen guardianship of Veronica was a sign of
love, not of a lack of relationship. The applicants also submit that the fact
that Veena provides monthly financial support to Ileen establishes their
relationship.
[44]
The
applicants assert that their many attempts to obtain temporary resident visas
also demonstrate that there is a reciprocal willingness to reunite with the
family in Canada. The officer
found that Veena had put a “tremendous effort” into getting her daughter to Canada, which the applicants
say demonstrates that their relationship is strong.
[45]
Further,
the applicants contend that the officer was required to conduct a “best interests
of the child” analysis. As she was 18 at the time of the decision, Veronica is
still considered a “child” under the regulations. The applicants submit that
the officer was not “alert and sensitive” to the interests of Veronica.
[46]
The
applicants further object to the officer’s apparent suggestion that the family
should reunite in India. They note that one of the objectives of IRPA
is to see families reunited in Canada.
[47]
In
my view, as described above, the officer explained in detail why an H&C
exemption was not warranted in this case, and provided a direct response to
each of the applicants’ submissions.
[48]
In
addition, recent jurisprudence of this Court has held that there is no need to
consider the best interests of a person over the age of 18 as a “child directly
affected” in an application brought under s 25 of IRPA. In Leobrera v Canada
(Minister of Citizenship and Immigration), 2010 FC 587, Justice Michel
Shore relied on domestic legislation, international instruments and the
jurisprudence of the Federal Court of Appeal and Supreme Court to reach the
conclusion that “childhood is a temporary state which is delineated by the age
of the person, not by personal characteristics” (at para 72).
[49]
In
my view, the officer did not err by stating that there was no need to consider
Veronica’s best interests. In any event, I believe the officer properly
considered those interests. The officer explicitly considered Veronica’s schooling,
financial and housing situation, and the family members available to her in
both India and Canada.
[50]
Therefore,
the officer’s conclusion that the evidence did not justify exceptional relief
was not unreasonable. He considered all relevant factors, did not ignore the evidence,
and did not rely on irrelevant considerations.
VI. Conclusion and Disposition
[51]
In
my view, the officer did not fetter his discretion by failing to treat Veronica
as a de facto dependent. Further, the officer’s decision was reasonable.
Therefore, I must dismiss this application for judicial review. Neither party
proposed a question for certification and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is dismissed;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act, SC 2001, c 27
Humanitarian
and compassionate considerations — request of foreign national
25.
(1) The Minister must, on request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this Act, and may, on
request of a foreign national outside Canada, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligations
of this Act if the Minister is of the opinion that it is justified by humanitarian
and compassionate considerations relating to the foreign national, taking
into account the best interests of a child directly affected.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Séjour
pour motif d’ordre humanitaire à la demande de l’étranger
25.
(1) Le ministre doit, sur demande d’un étranger se trouvant au Canada qui
est interdit de territoire ou qui ne se conforme pas à la présente loi, et
peut, sur demande d’un étranger se trouvant hors du Canada, étudier le cas de
cet étranger; il peut lui octroyer le statut de résident permanent ou lever
tout ou partie des critères et obligations applicables, s’il estime que des
considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
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