Essindi v. Canada (Citizenship and Immigration), 2018 FC 288 : Court Addresses Family Sponsorship Refusal Where DNA Evidence Showed Child Was Not Sponsor’s Biological Daughter

The Federal Court reviewed an Immigration Appeal Division decision dismissing Patrice Essindi’s appeal from the refusal of his sponsorship application for Alima Fanny Essindi, whom he considered his daughter. A DNA test established that Fanny was not his biological child, and she had not been legally adopted. The IAD therefore found that she was not a “dependent child” and was not a member of the family class. The Court upheld that conclusion and confirmed that the IAD could not consider humanitarian and compassionate factors once family class membership had not been established.

Key Principle

A sponsor’s genuine parental relationship with a child does not itself make the child a “dependent child” under the Immigration and Refugee Protection Regulations. For family class sponsorship under paragraph 117(1)(b), the child must satisfy the regulatory definition, including being the sponsor’s biological or adopted child. Under section 65 of the IRPA, the IAD cannot grant humanitarian and compassionate relief unless it first determines that the foreign national is a member of the family class.

Background

Mr. Essindi, a Canadian citizen originally from Cameroon, learned in 2009 that Fanny, born in 1999, was believed to be his biological daughter from an earlier relationship. He met her in 2010 and thereafter maintained a close relationship, visiting regularly, communicating by telephone, and financially supporting her schooling, medical expenses, and basic needs. Fanny’s mother later granted Mr. Essindi and his spouse sole custody.

In 2013, Mr. Essindi applied to sponsor Fanny. Because she had not been declared when he immigrated to Canada and questions arose concerning her birth certificate, immigration authorities requested DNA testing. The test showed that Mr. Essindi was not Fanny’s biological father. An officer refused the application, and the IAD dismissed his appeal because Fanny was neither his biological nor adopted child.

Court Findings

• Regulatory Definition of Dependent Child Was Not Met

The Court found the IAD reasonably applied the Regulations. DNA evidence established that Fanny was not Mr. Essindi’s biological child, and there had been no legal adoption. Accordingly, she did not meet the definition of “dependent child” and could not qualify as a family class member under paragraph 117(1)(b).

• IAD Could Not Consider H&C Factors

Mr. Essindi relied heavily on his parental relationship with Fanny and argued that humanitarian considerations should have been considered. The Court explained that section 65 of the IRPA prevented the IAD from considering H&C relief after determining that Fanny was not a member of the family class. The IAD therefore had no discretion to overcome the regulatory definition based on their relationship.

• De Facto Daughter Argument Did Not Change the Result

The officer had not been asked to consider Fanny as a de facto daughter through an H&C request under subsection 25(1). The Court distinguished Zhong, where H&C reconsideration had specifically been requested. Here, neither Mr. Essindi nor Fanny had made such a request. It remained open to Fanny to submit a new permanent residence application accompanied by a written request for H&C consideration.

Outcome

The Federal Court dismissed judicial review, finding the IAD’s decision reasonable. No question of general importance was certified.

Case Citation:

Essindi v. Canada (Citizenship and Immigration), 2018 FC 288 (CanLII)