Gan v. Canada (Minister of Citizenship and Immigration), (2014) 462 F.T.R. 152 (FC)

• Judge: Brown, J.
• Court: Federal Court (Canada)
• Case Date: August 13, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 462 F.T.R. 152 (FC);2014 FC 824

Gan v. Can. (M.C.I.) (2014), 462 F.T.R. 152 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. SE.004

Xiao Wen Gan (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3653-13; 2014 FC 824; 2014 CF 824)

Indexed As: Gan v. Canada (Minister of Citizenship and Immigration)

Federal Court

Brown, J.

August 26, 2014.

Summary:

The applicant, a citizen of China, applied for permanent residence on humanitarian and compassionate (H&C) grounds and permanent residence as a member of the family class. She was sponsored by her mother, who had been a Canadian citizen since 2008, and had failed to declare the applicant as a non-accompanying relative on three occasions. An immigration officer refused the application for permanent residence under the family class due to the applicant's exclusion under s. 117(9)(d) of the Immigration and Refugee Protection Regulations. The officer found that H&C considerations did not overcome the applicant's exclusion under the Regulations due to the mother's non-disclosure. The applicant applied for judicial review.

The Federal Court allowed the application and remitted the matter to a different immigration officer for redetermination.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - Gan, a citizen of China, applied for permanent residence on humanitarian and compassionate (H&C) grounds and permanent residence as a member of the family class - She was sponsored by her mother, who had been a Canadian citizen since 2008, and had failed to declare Gan as a non-accompanying relative on three occasions - An immigration officer refused the application for permanent residence under the family class due to Gan's exclusion under s. 117(9)(d) of the Immigration and Refugee Protection Regulations - The officer found that H&C considerations did not overcome Gan's exclusion due to the mother's non-disclosure - The Federal Court allowed Gan's application for judicial review - The officer fixated on and viewed the H&C application through the prism of the mother's failure to declare Gan on three previous applications - Gan was entitled to a genuine and unfettered assessment of her H&C application separate and apart to the extent possible from the mother's sponsorship application - If H&C applications brought by otherwise ineligible persons were determined on the same or predominantly the same basis as grounded their ineligibility, then Parliament's intent in creating a separate H&C process would be defeated.

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer - [See Aliens - Topic 1206 ].

Aliens - Topic 1287

Admission - Immigrants - Sponsorship - Members of the family class - [See Aliens - Topic 1206 ].

Aliens - Topic 1708

Exclusion and expulsion - Immigration - Exclusion - General - Grounds - [See Aliens - Topic 1206 ].

Cases Noticed:

Sultana et al. v. Canada (Minister of Citizenship and Immigration) (2009), 346 F.T.R. 1; 2009 FC 533, refd to. [para. 6].

Weng v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 335; 2014 FC 778, refd to. [para. 6].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 6].

Counsel:

Nancy Myles Elliott, for the applicant;

Meva Motwani, for the respondent.

Solicitors of Record:

Elliott Law Firm, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on August 13, 2014, before Brown, J., of the Federal Court, who delivered the following judgment and reasons at Ottawa, Ontario, on August 26, 2014.