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Lu v Canada 2004 I.A.D.

Lu v Canada 2004 I.A.D. bad faith test to be read ‘conjunctively’: key sttty interp point, onus is on the appellant once exclusion is raised consider types of evidence presented/expected language: appellant and applicant

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Lu v Canada 2004 I.A.D.

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  1. Lu v Canada 2004 I.A.D. • bad faith test to be read ‘conjunctively’: key sttty interp point, onus is on the appellant once exclusion is raised • consider types of evidence presented/expected • language: appellant and applicant • intention to reside permanently as evidence of genuineness only (new test differs from old) • N.B. de novo hearings • issue estoppel – new test under IRPA • what would your own assessment of this story be?

  2. Macapagal v Canada 2004 I.A.D. • test for conjugal relationship: interdependence and 7 indicative factors • after this estd move on to bad faith analysis (? likely to fail here?) • N.B. use of Phillipine law • consequences of tribunal level decision • how does the evidence here compare with Lu? As counsel, what evidence would you submit?

  3. Vong v Canada 2004 I.A.D. • ‘mother’ is undefined in the IRPA and IRPR • nuturing relationship, recogzd in the community + possibly other factors, more than one mother is possible • looks to old Act and draws conclusion on the basis of a lack of definition • evidence of how Vietnamese society views stepmothers • intent of Parliament to anticipate shifting attitudes toward family (??) • note comments re H&C considerations

  4. Natt v Canada 2004 FC • adoption validity and adding members to the family class • they were her dependent children at all times • culture context of understanding of adoption • what legislative purpose [seems to] animate s 117(9)(d)? • compare facts and legal argument to Guzman

  5. Nguyen v Canada 2003 FCTD • remember trial division no longer exists • modern purposive approach to statutory interpretation: look to the object and purpose of the legislation, n.b. use of objectives clause • what do you think of the statement that “…such an interpretation is consistent with the principle of family reunification…” (at para 17)? • what does para 19 mean?

  6. De Guzman v Canada FCA 2005 • challenge to the s.117(9)(d) family class bar firmly rejected, SCC has denied leave • 3 arguments: • regulation is ultra vires • s. 7 of the Charter is breached • international human rights law is infringed

  7. misrepresentation and suspicion of ‘being a bad mother’ • IRPA as framework legislation • Charter: restriction of fundamental choices & psychological stress • s. 25 of IRPA used at several points here • s. 3(3)(f) grounds international law argument • ‘hybrid response to international law argument: ‘signatory’, open set, mandatory language • held: interpretive guidance • no infringement here (CRC, ICCPR), both instruments are in fact ratified

  8. Wrap Up Points – Family Class • spouse or common law partner in Canada class (begins reg 123) for legal temporary residents (not conjugal partners) • family related inadmissibility (Act s 42, Regs s 23) • reg 1 has a general defn of ‘family member’, and reg 2 defines ‘relative’ • s. 28 (Act) residency requirement

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