Sendwa v. Canada (Citizenship and Immigration), 2018 FC 569 : Refusal Upheld Where Sponsor Could Otherwise Pursue Parental Sponsorship Before Sponsoring Another Relative

The Federal Court reviewed the Immigration Appeal Division’s second decision dismissing Thecla Sendwa’s appeal from the refusal of her application to sponsor her adult niece from Tanzania under paragraph 117(1)(h) of the IRPR. Although Ms. Sendwa lacked the income ordinarily required to sponsor her parents, the IAD concluded that the statutory appeal process could potentially overcome financial or medical barriers to parental sponsorship. The Court upheld the IAD’s interpretation and dismissed the judicial review.

Key Principle

Paragraph 117(1)(h) of the IRPR operates as a mechanism of last resort for sponsoring another relative. A sponsor cannot use this provision merely because an enumerated relative, such as a parent, may initially face financial or admissibility barriers. If the sponsor may otherwise sponsor an enumerated relative, including through available statutory appeal and H&C mechanisms capable of overcoming an initial refusal, the condition for sponsoring a generic relative under paragraph 117(1)(h) is not met.

Background

Ms. Sendwa, a Canadian citizen with no relatives in Canada, sought to sponsor her adult niece. Her parents remained alive. A first IAD panel dismissed her appeal because her parents could be sponsored regardless of their possible inadmissibility. In Sendwa 1, the Federal Court set that decision aside, holding that paragraph 117(1)(h) must be considered from the sponsor’s perspective and that the IAD had failed to examine whether Ms. Sendwa was actually eligible or in a position to sponsor her parents.

On redetermination, the IAD accepted that Ms. Sendwa likely lacked the required income to sponsor her parents. However, it reasoned that a parental sponsorship refusal could be appealed to the IAD, where H&C relief might overcome financial ineligibility or medical inadmissibility. The IAD therefore again dismissed her appeal.

Court Findings

• Paragraph 117(1)(h) Is a Last-Resort Provision

The Court rejected Ms. Sendwa’s argument that, once no enumerated relative was already in Canada and she was financially ineligible to sponsor her parents, she could freely sponsor another relative. Reading section 117 as a whole, the Court held that a generic relative can be sponsored only when there is no enumerated relative whom the sponsor may otherwise sponsor.

• IAD Complied With the Earlier Federal Court Decision

Sendwa 1 did not expressly order the IAD to treat financial ineligibility as determinative. The redetermination properly considered whether Ms. Sendwa was eligible or otherwise in a position to sponsor her parents. The Court therefore rejected the argument that the IAD disregarded stare decisis or failed to follow the earlier judgment.

• Appeal Rights Could Affect Sponsorship Capacity

Although an appeal under subsection 63(1) of the IRPA is a right rather than an obligation, its availability provided another means by which an initial parental sponsorship refusal might be overcome. The Court found it reasonable for the IAD to include that possibility when determining whether Ms. Sendwa might otherwise sponsor her parents. The Court also rejected the allegation of bias as speculative and unsupported.

Outcome

The Federal Court dismissed judicial review, finding the IAD’s interpretation and application of paragraph 117(1)(h) reasonable. The Court permitted the parties to make later submissions on a possible certified question.

Case Citation:

Sendwa v. Canada (Citizenship and Immigration), 2018 FC 569 (CanLII)