De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 (2005)
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De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 (2005)
Date: 20051220
Docket: A-558-04Citation: 2005 FCA 436CORAM: DESJARDINS J.A.EVANS J.A.MALONE J.A.BETWEEN:JOSEPHINE SOLIVEN DE GUZMANAppellantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondentHeard at Vancouver, British Columbia, on October 24, 2005.Judgment delivered at Ottawa, Ontario, on December 20, 2005.REASONS FOR JUDGMENT BY: EVANS J.A.CONCURRED IN BY: DESJARDINS J.A.CONCURRING REASONS BY: MALONE J.A.Date: 20051220Docket: A-558-04Citation: 2005 FCA 436CORAM: DESJARDINS J.A.EVANS J.A.MALONE J.A.BETWEEN:JOSEPHINE SOLIVEN DE GUZMANAppellantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondentREASONS FOR JUDGMENTEVANS J.A.A. INTRODUCTION[1] In 1993, Josephine Soliven de Guzman, a citizen of the Philippines, came to live in Canada. When she applied to the Canadian embassy in Manila for her permanent resident visa, and when she was landed in Canada, she told immigration officials that she was single and had no dependants, other than her daughter, Shara Mae, who was accompanying her. This was not true: she also had two sons, Jay and Jayson, whom she left in the Philippines with their father.[2] Eight years later, after establishing herself in this country and becoming a Canadian citizen, Ms de Guzman applied to sponsor the admission to Canada of Jay and Jayson as members of the family class. They were then 17 and 16 years old respectively. However, they were refused visas under paragraph 117(9)( d ) of the Immigration and Refugee Protection Regulations (" Regulations "), on the ground that they were not members of the family class because they had not been examined for immigration purposes when Ms de Guzman applied to come to Canada. Accordingly, Ms de Guzman's application to sponsor her sons was denied.[3] Ms de Guzman says that paragraph 117(9)( d ) is invalid on three grounds. First, it is not authorized by the relevant enabling section of the Immigration and Refugee Protection Act (" IRPA "). Second, by preventing the reunification in Canada of parent and child, the regulation violates the parent = s rights under section 7 of the Canadian Charter of Rights and Freedoms . Third, the regulation is inconsistent with international human rights instruments to which Canada is signatory, and which protect the right of families to live together and the best interests of children.[4] The practical significance of paragraph 117(9)( d ) is that it deprives those to whom it applies of the benefit of the favourable immigration treatment afforded to members of the family class. Family reunification is an objective of IRPA : paragraph 3(1)( f ).[5] Sponsorship as a member of the family class provides the best opportunity for starting a new life in Canada for those who may not qualify for admission under other selection criteria. The outcome of this appeal is of importance to a significant number of people, in addition to the parties.[6] The broad sweep of paragraph 117(9)( d ) has been narrowed somewhat by an amendment which brought back into the family class non-accompanying family members who were not examined because an officer decided that no examination was necessary: subsection 117(10), added by SOR/2004-167, subsection 41(4). However, this does not assist Ms de Guzman.B. HISTORY OF THE PROCEEDING[7] Ms de Guzman appeals to this Court from the decision of a Judge of the Federal Court dismissing her application for judicial review to set aside a decision of the Immigration Appeal Division of the Immigration and Refugee Board. The Judge = s decision is reported as de Guzman v. Canada(Minister of Citizenship and Immigration) , 2004 FC 1276.[8] In a decision dated September 26,...See the full content of this document
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