Date: 20040915
Docket: IMM-4917-03
Citation: 2004 FC 1253
Toronto, Ontario, September 15th, 2004
Present: The Honourable Mr. Justice Campbell
BETWEEN:
PEARL CAROLINE RADIX
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present application the central question in the H & C decision under review is whether the Applicant is a "de facto" member of the family for whom she has worked as a caregiver for a number of years.
[2] There is no question that on the face of the decision under review great weight is placed by the H & C Officer on the answer to the de facto member question. That is, the way the decision is written, the answer forms a critical feature in deciding whether disproportionate hardship exists. There is also no doubt that the investigation of the de facto member question arises from the Citizenship and Immigration Canada guidelines entitled "IP5 Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds" (see Applicants Application Record ("AR"), pp. 123- 220).
[3] With respect to the de facto member issue, guideline 13.8 reads as follows:
13.8 De facto family members
An important consideration is to what extent the applicant would have difficulty in meeting financial or emotional needs without the support and assistance of the family unit in Canada. Separation of persons in such a genuine dependant relationship may be grounds for a positive decision.
Officers should consider the following factors:
* 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;
* ability and willingness of the family in Canada to provide support;
* applicant's other alternatives, such as family (spouse, children, parents, siblings, etc.) outside Canada able and willing to provide support;
* 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);
* whether there is a significant degree of establishment in Canada? (See Section 11.2, Assessing the applicant's degree of establishment in Canada); and
* any other factors relevant to the H & C decision.
(AR, pp. 165-166 ) [Emphasis added]
[4] It is clear that the guidelines are intended to promote consistency (guideline 2.2). I am aware of decisions of this Court that state that guidelines are not binding (see Agot v. Canada (Minister of Citizenship and Immigration) 2003 FCT 436, and Dilmohamed v. Canada (Minister of Citizenship and Immigration) 2002 FCT 9). However, in my opinion, if the guidelines are invoked in a particular case, their use must be considered according to the circumstances of that case in order to judge whether they are fairly applied.
[5] With respect to the determination of whether a person is a de facto member it is worth while to investigate the literal meaning of the term de facto. The shorter Oxford Dictionary defines de facto as "in fact, in reality, in actual existence, force, or possession, as a matter of fact". It is obvious from the guidelines with respect to de facto member as quoted above that a H & C officer should be attempting to determine whether an applicant is, in fact, and in reality, in a genuine dependant relationship within a family unit in Canada. Reaching a fair conclusion to this investigation without doubt forms an important factor in reaching a decision in the H & C application.
[6] In the present case, the decision under review contains the following factual statements and analysis:
Ms. Radix's request for exceptional consideration was based on her relationship with her once employer, the Kaiman family. She worked for the family from October 1990 to November 1995, providing childcare for the Kaiman children, then 7 and 8 years old. She left the family and returned to Grenada in November 1995. According to submissions, Ms. Radix had developed a strong relationship with the children and the family during those years, so when she came back in August 1998, though the Kaiman children were no longer in need of a nanny, she moved back in with the family and continued to reside with them while working outside the family. She stated that she continued to offer her friendship, support and love to the children and she was considered a member of the family and was present for vacations, bat mitzvahs, birthdays and other special family occasions. Counsel further stated in the submissions that Ms. Radix had been with the Kaiman family for close to 10 years now therefore the relationship with the Kaiman family has become a de facto family relationship. The Kaiman family presented letters speaking highly of Ms. Radix and their trust and respect for her.
I have carefully reviewed all the information and documents provided. I acknowledge that there is a very close relationship between Ms. Radix and the Kaiman family. However, there is insufficient persuasive evidence to satisfy me that this relationship amounts to one of de facto family member. Ms. Radix took care of the Kaiman children for 5 years 1990 to 1995. She left the Kaiman family and returned to Grenada in November 1995. She came back to Canada 3 years later in August 1998 due to the reason that she could not find employment in Grenada. The Kaiman family welcomed her into their home and provided her with room and board, found her employment outside the family and treated her as one of their own. I could see that the Kaiman family is extremely kind and generous and Ms. Radix is very well trusted and loved, however, I am not satisfied that the deep roots to form the relationship of de facto family member, the interdependency that would be the foundamental [sic] base of such a relationship and evidence that goes beyond just being included in birthday celebrations and other special family occasions are there to substantiate the de facto family member relationship. The Kaiman family, from the information provided, is a very close and strong union, not a dysfunctional family. Though the children fondly refer to Ms. Radix as a mother figure, the dependency of the Kaiman children on Ms. Radix for physical care and emotional support is minimum given the facts that they were already teenagers when she left them and they are adults now and they have a pair of loving responsible parents there for them. As with Ms. Radix, I acknowledge that it is not without difficulty for her to be separated from the Kaiman family as she has a close bond with the children and been residing with them for close to 5 years now since she came back in Auaugst [sic] 1998. However, she has closer ties in her home country: she has her own children and grandchildren. There is insufficient information to satisfy me that the departure of Ms. Radix would cause undeserved physical or emotional hardship to either the Kaiman children or to Ms. Radix.
Ms. Radix has been working to support herself since her return to Canada in 1998 albeit without permission. She works as a nanny for a couple of families, looking after the children. Her employment earning is unknown as she never filed tax returns. She has about a few thousand dollars in savings. She took some English and math courses to upgrade her knowledge and goes to church regularly. This all demonstrates efforts has been made by Ms. Radix to integrate and establish herself in Canada. However, I am not satisfied that she has become so established to the point that it would cause her unusual or disproportionate hardship if she were to return to Grenada. She has 2 children in Grenada: she has a home to return to. She has some savings which would help her in rebuilding her life in her home company.
Based on he totality of Ms. Radix's circumstance, I am not satisfied that sufficient grounds exist to warrant the waiver of visa requirement. Accordingly, this request is refused.
(AR, pp. 11-12)
[Emphasis added]
[7] It is strenuously argued by counsel for the Applicant that the guidelines were not fairly applied because the requirement of "deep roots" goes well and beyond the standard that should be fairly applied to attain consistency. I agree with this submission.
[8] In my opinion, in the present case, not only does the H & C Officer apply unwarranted criteria to the determination of de facto family membership, but the H & C Officer's decision does not accord with the evidence. It is hard to imagine how much more of a dependant connection a person must have with a family such as the one under consideration in the present case in order to be an actual genuine dependant member of the family. Indeed, in my opinion, the conclusion reached by the H & C Officer is so much in discord with the evidence that I have no hesitation is saying that it is patently unreasonable in the extreme.
[9] As a result, I find the decision under review was made in reviewable error.
ORDER
Accordingly, I set the H & C Officer's decision aside and refer the matter to a different H & C officer for reconsideration.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4917-03
STYLE OF CAUSE: PEARL CAROLINE RADIX
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: SEPTEMBER 15, 2004
REASONS FOR ORDER BY: CAMPBELL J.
DATED: SEPTEMBER 15, 2004
APPEARANCES:
Chantal Desloges FOR THE APPLICANT
Ursula Kaczmarczyk FOR THE RESPONDENT
SOLICITORS OF RECORD:
Green and Spiegel
Barristers & Solicitors
Toronto, ON FOR THE APPLICANT
Morris Rosenberg
Attorney General of Canada FOR THE RESPONDENT
FEDERAL COURT
Date: IMM-4917-03
Docket: IMM-4917-03
BETWEEN:
PEARL CAROLINE RADIX
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER