Lu v canada 2004 i a d
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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.

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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


Lu v canada 2004 i a d

  • 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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