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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
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?
macapagal v canada 2004 i a d
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?
vong v canada 2004 i a d
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
natt v canada 2004 fc
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
nguyen v canada 2003 fctd
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?
de guzman v canada fca 2005
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
slide7
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
wrap up points family class
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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