Lau v. Canada (Minister of Citizenship and Immigration), (2009) 356 F.T.R. 206 (FC)

• Judge: Gibson, D.J.
• Court: Federal Court (Canada)
• Case Date: September 23, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 356 F.T.R. 206 (FC);2009 FC 1089

Lau v. Can. (M.C.I.) (2009), 356 F.T.R. 206 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. NO.010

Tek Ming Lau (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-51-09; 2009 FC 1089)

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

Federal Court

Gibson, D.J.

October 26, 2009.

Summary:

The Immigration Appeal Division (IAD) of the Immigration and Refugee Board dismissed an appeal from a decision of a Visa Officer in Hong Kong refusing to approve the permanent resident visa application made by Feng. Feng was sponsored to come to Canada by the applicant. The Visa Officer had concluded that a purported marriage between Feng and the applicant, seven months after the applicant's divorce in China, was deemed not to be genuine. The IAD dismissed the appeal on the ground that the applicant's divorce was not valid according to the laws of Canada; consequently, he was ineligible to sponsor Feng. The applicant sought judicial review.

The Federal Court allowed the application and set aside the decision. Against a standard of review of correctness, the IAD failed to answer the question of whether or not the divorce was a "divorce granted otherwise than under the [Divorce] Act", and in so doing failed to fully apply the test required under s. 22(3) of the Divorce Act. The court referred the applicant's appeal back to the Board for rehearing and redetermination.

Aliens - Topic 1287

Admission - Immigrants - Sponsorship - Members of the family class - The Immigration Appeal Division (IAD) of the Immigration and Refugee Board dismissed an appeal from a decision of a Visa Officer in Hong Kong refusing to approve the permanent resident visa application made by Feng - Feng was sponsored to come to Canada by the applicant - The Visa Officer had concluded that a purported marriage between Feng and the applicant, seven months after the applicant's divorce in China, was deemed not to be genuine - The IAD dismissed the appeal on the ground that the applicant's divorce was not valid according to the laws of Canada; consequently, he was ineligible to sponsor Feng - The applicant sought judicial review - The Federal Court allowed the application and set aside the decision - The IAD made no determination as to whether the divorce was legally valid in China, against the concept of real and substantial connection - Against a standard of review of correctness, the IAD failed to answer the question of whether or not the divorce was a "divorce granted otherwise than under the [Divorce] Act", and in so doing failed to fully apply the test required under s. 22(3) of the Divorce Act - The court referred the appeal back to the Board for rehearing and redetermination.

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - The issues on this application for judicial review included first, whether the divorce obtained in China by the applicant was properly determined to be a valid divorce in that country; and second, whether the Immigration Appeal Division (IAD) of the Immigration and Refugee Board erred in a reviewable manner in determining that the divorce did not meet the real and substantial attachment or connection test - The Federal Court found that, in light of the case law, the appropriate standard of review was correctness - The first issue was a question of law where the appropriate standard of review was correctness - The second issue was a mixed question of fact and law, and the court should therefore review the decision of the IAD to determine whether it fell within the range of possible, acceptable outcomes which were defensible in respect of the facts and law - See paragraphs 13 and 14.

Conflict of Laws - Topic 2121

Family law - Divorce - Recognition of foreign decrees - General - The Federal Court examined the issue of foreign divorces in the context of immigration law - Section 22(3) of the Divorce Act read that "Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act" - Here, the Immigration Appeal Division (IAD) dismissed an appeal on the ground that the applicant's divorce, granted in China, was not valid according to the laws of Canada; consequently, he was ineligible to sponsor his current wife - The IAD made no determination as to whether the divorce was legally valid in China, against the concept of real and substantial connection to the place of divorce - Accordingly, the court concluded that the IAD failed to fully apply the test under s. 23 - In light of that conclusion, the court made no determination with respect to the IAD's analysis regarding the notions of fairness and harmony with Canadian public policy portion of the test - See paragraphs 15 to 19.

Family Law - Topic 3985

Divorce - Foreign decrees - Recognition of - In Canada - [See Conflict of Laws - Topic 2121 ].

Cases Noticed:

Canada (Minister of Citizenship and Immigration) v. Hazimeh (2009), 344 F.T.R. 160; 2009 FC 380, refd to. [para. 13].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 14, footnote 5].

Amin v. Canada (Minister of Citizenship and Immigration) (2008), 322 F.T.R. 293; 2008 FC 168, refd to. [para. 16, footnote 7].

Jahangiri-Mavaneh v. Taheri-Zengekani, [2003] O.T.C. 705; 66 O.R.(3d) 272 (Sup. Ct. Fam. Ct.), refd to. [para. 19, footnote 9].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 22 [para. 5].

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 130(1) [para. 3].

Immigration and Refugee Protection Regulations - see Immigration and Refugee Protection Act Regulations (Can.).

Authors and Works Noticed:

Castel, Jean-Gabriel, and Walker, Janet, Canadian Conflict of Laws (6th Ed. 2006), vol. 2, pp. 17-7, 17.2 [para. 18, footnote 8].

Counsel:

Samuel R. Baker, Q.C., for the applicant;

Kareena Wilding, for the respondent.

Solicitors of Record:

Baker & Associates, Toronto, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on September 23, 2009, by Gibson, D.J., of the Federal Court, who delivered the following reasons for order, dated October 26, 2009.