Digests

Nawaratnam v. Canada (Minister of Citizenship and Immigration)

IMM-5686-00

2001 FCT 976, Blais J.

30/8/01

17 pp.

Application for judicial review of Immigration Appeal Division of Immigration Refugee Board (IAD) decision that refusal to approve applicant's spouse's application for permanent residence in accordance with law and that no H&C considerations warranting granting of special relief--Applicant now Canadian citizen after obtaining Convention refugee status--Applicant, from Sri Lanka, sponsored ex-fiancée's (also from Sri Lanka) application for landing pursuant to match arranged by parents--Ex-fiancée arrived in Canada in December 1995--Marriage did not take place when couple realized incompatibility--Fiancée moved out, stayed in Toronto, claimed and received social assistance benefits, finally received Convention refugee status--In spite of undertaking of assistance, applicant did not take any steps to repay ex-fiancée's social assistance benefits, explaining no government agency had specifically requested repayment--Applicant married current spouse in August 1998 in Sri Lanka--Issue whether IAD engaged in balancing of H&C considerations against applicant's legal impediments and if so, whether IAD in error--Applicant submitting IAD misapplied test for appeal under Act, s. 77(3) as s. 77(3)(b) making it clear only consideration for IAD on appeal whether H&C considerations exist--Application dismissed--IAD did embark on balancing of H&C considerations against applicant's legal impediment--Decision in Kirpal v. Canada (Minister of Citizenship and Immigration), [1997] 1 F.C. 352 (T.D.) to effect IAD should not weigh extent of legal impediment against strength of H&C factors on H&C application and IAD decision therein set aside--Applicant validly pointing out plain meaning of "humanitarian" and "compassionate" cannot encompass considerations related to sponsor's failure to repay debt of another person--Fact Act, s. 77(3)(b) using words "humanitarian", "compassionate" seem to indicate other grounds should not be considered--Application of Canada (Minister of Citizenship and Immigration) v. Owens (2000), 9 Imm. L.R. (3d) 101 (F.C.T.D.) where Kirpal distinguished on basis decision not patently unreasonable as H&C factors fully considered, with one allegedly irrelevant consideration of effect of legal impediment factored in--Even if IAD herein should have ignored matter of social assistance benefits claimed by ex-fiancée, proper H&C factors fully considered--IAD could reasonably conclude insufficient H&C factors to warrant granting of special relief--Question certified as to whether wrong for IAD to consider nature or circumstances regarding legal impediment when determining on balance of probabilities whether sufficient H&C considerations existing to warrant granting special relief pursuant to Act, s. 77(3)(b)--Immigration Act, R.S.C., 1985, c. I-2, s. 77(3) (as am. by S.C. 1995, c. 15, s. 15; 1999, c. 31, s. 134).