Francois v. Canada (Citizenship and Immigration), 2019 FC 748 : H&C Refusal Set Aside Where Officer Focused on the Status Quo, Ignored Benefits of Family Reunification, and Relied on Speculation

The Federal Court reviewed the refusal of humanitarian and compassionate relief sought to allow a young man in Haiti to be processed as the de facto dependent son of the applicant.

The applicant had raised the young man as his son from early childhood and had always believed he was the biological father. DNA testing later revealed otherwise. Although IRCC accepted that there had been no intentional misrepresentation, the subsequent request for H&C relief was refused.

The Court found that the officer’s best interests analysis was incomplete and that important conclusions were based on speculation rather than evidence.

Key Principle

A best interests of the child analysis must go beyond describing the existing situation.

The decision-maker must consider both:

• what the child’s circumstances will be if H&C relief is refused; and
• how the child’s circumstances may improve if relief is granted.

The analysis must also consider all children directly affected, meaningfully engage with their particular circumstances, and avoid speculative assumptions about alternative family support that is not established by the evidence.

Background

Watson had lived with Edvard and his family in Haiti from approximately age three and had always been treated as Edvard’s son.

After Edvard left Haiti, Watson remained with Edvard’s mother and sister until they died. He later lived with a friend of Edvard, while Edvard continued sending money for his expenses.

When Edvard included Watson as a dependent in his permanent residence application, IRCC requested DNA testing. The results unexpectedly showed that Edvard was not Watson’s biological father.

IRCC accepted that Edvard had not intentionally misrepresented the relationship. He therefore requested H&C relief so that Watson could be processed as his de facto dependent son.

Court Findings

The Court identified several problems with the BIOC analysis.

First, the officer focused almost entirely on maintaining the existing long-distance relationship between Watson and the family in Canada. The officer did not meaningfully assess the other side of the equation, namely the benefits Watson would receive from being reunited with Edvard and his de facto siblings in Canada.

The decision also failed to adequately consider the interests of Edvard’s Canadian children in living with Watson as part of the same family unit.

Second, important facts were overlooked. Watson’s grandmother and aunt, with whom he had lived for years, had both died. He was living with a family friend who had indicated that she could no longer continue caring for him.

The officer also treated Edvard’s failure to legally adopt Watson after receiving the DNA results as a negative factor. The Court found this unreasonable. Edvard had always believed Watson was his son, was already listed as his father on the Haitian birth certificate, and continued actively pursuing a lawful immigration avenue through H&C relief.

The Court was also concerned by unsupported assumptions about possible support in Haiti.

The officer speculated that unidentified extended family members might assist Watson despite there being no evidence that such relatives were available. The officer also suggested that Watson could develop a relationship with his biological mother, despite evidence that she had played virtually no role in his life since he was three years old.

Outcome

The Federal Court allowed the application for judicial review, set aside the H&C refusal, and remitted the matter to a different officer for reconsideration.

Case Citation:

Francois v. Canada (Citizenship and Immigration), 2019 FC 748 CanLII