Digests

Nguyen v. Canada (Minister of Citizenship and Immigration)

IMM-1937-02

2003 FCT 325, Gibson J.

19/3/03

13 pp.

Judicial review of decision of Immigration Appeal Division (IAD) of Immigration and Refugee Board wherein IAD rejected appeal by applicant from decision of visa officer rejecting applicant's brother's application for permanent residence in Canada--Applicant had sponsored brother's application for permanent residence, as member of family class--Whether IAD erred in interpreting "member of the family class" as defined in Immigration Regulations, 1978, r. 2(1)--Definition of "member of the family class" setting out in paragraphs (a) to (g), relatives of potential sponsor and fiancée of potential sponsor whom potential sponsor entitled by Regulation, s. 5(2) to sponsor--Paragraph (h) "mechanism of last resort" to ensure potential sponsor who has any relative, regardless of age or relationship, will not be without opportunity to sponsor relative in circumstances where there is no one described in paragraphs (a) to (g) of definition that he or she "may otherwise sponsor"--Such interpretation consistent with principle of family unification without providing potential sponsor with option in favour of relative outside classes described in paragraphs (a) to (g)--If sponsor has resort to paragraphs (a) to (g), option of last resort not exercisable simply because all persons described in paragraphs (a) to (g) prefer not to join potential sponsor in Canada--Interpretation consistent with purposive interpretation of legislative scheme as whole--On fact of present matter, applicant, at time decision under review delivered, not without resort to "member of family class" described in paragraphs (a) to (g) of definition--Mother was alive--Evidence, not emanating directly from mother, indicating mother did not wish to come to Canada and that she had had medical difficulties--IAD found impediments to applicant successfully sponsoring mother not to be determinative--Evidence regarding impediments less than fully persuasive; even if fully persuasive, evidence would not have affected outcome--Essense of analysis that where sponsor has relative living abroad within classes of persons described in paragraphs (a) to (g) of "member of family class" definition in Regulations, no authority to choose to sponsor person falling within paragraph (h) of definition--Would be quite inappropriate to have regard to new legislative and regulatory scheme, not before IAD when decision under review made, in arriving at present decision--In light of arrival of complete new legislative and regulatory scheme since time decision under review made, decision herein not of "general importance" warranting certification of question-- Application for judicial review dismissed--Immigration Regulations, 1978, SOR/78-172, ss. 2(1) "member of the family class" (as enacted by SOR/93-44, s. 1), 5(2) (as am. by SOR/97-145, s. 3).