Sendwa v. Canada (Citizenship and Immigration), 2019 FCA 314 : Can You Sponsor a Niece or Nephew If Your Parents Are Still Alive? Federal Court of Appeal Says No

The Federal Court of Appeal considered whether a Canadian citizen could sponsor her niece under the family class when her parents were still alive but she believed she could not financially qualify to sponsor them.

The Court upheld the refusal. It confirmed that the provision allowing a Canadian to sponsor certain other relatives is a last-resort family sponsorship category.

Where the sponsor has a living relative specifically listed in the Immigration and Refugee Protection Regulations, such as a parent, the sponsor cannot use this provision to sponsor a non-listed relative such as a niece simply because sponsoring the parent may be financially difficult or impossible.

Key Principle

Paragraph 117(1)(h) of the IRPR does not allow a sponsor to choose another relative merely because they may not currently meet the financial requirements to sponsor a parent or another specifically listed relative.

For this provision, the important question is generally whether the listed relative exists, not whether the sponsor could successfully complete a sponsorship application for that relative.

This means the “other relative” category is intended for situations where the sponsor genuinely does not have the specified family members who could otherwise fall within the family class.

Background

The appellant was a Canadian citizen who attempted to sponsor her niece, a citizen of Tanzania, for permanent residence.

An immigration officer refused the application because the appellant’s parents were alive in Tanzania.

The appellant argued that her father would likely be medically inadmissible and that she did not have sufficient income to meet the higher financial requirements associated with sponsoring her parents.

She therefore argued that she should be permitted to sponsor her niece instead.

The matter went through the IAD and Federal Court before reaching the Federal Court of Appeal.

Court Findings

The Federal Court of Appeal confirmed that paragraph 117(1)(h) operates as a provision of last resort.

The Court relied on its earlier decision in Bousaleh, which held that where a sponsor has one of the specifically listed relatives, the sponsor cannot use paragraph 117(1)(h) to sponsor a non-listed relative.

The Court rejected the argument that the words “may otherwise sponsor” meant the sponsor could choose another relative when financial circumstances prevented a parent sponsorship.

Instead, the Court held that the existence of the appellant’s living parents was sufficient to prevent her from sponsoring her niece under this category.

Importantly, the Court found that it was not necessary to determine whether the appellant actually satisfied the financial requirements for parent sponsorship.

The financial eligibility criteria did not change the basic operation of paragraph 117(1)(h).

In practical terms, a sponsor cannot bypass a living parent, grandparent, child, sibling, or other listed relative and select a niece, nephew, cousin, or another non-listed relative merely because sponsoring the listed relative would be difficult or unsuccessful.

Outcome

The Federal Court of Appeal dismissed the appeal.

It answered the certified question by confirming that financial eligibility under the parent sponsorship requirements does not need to be considered when determining whether a person can sponsor another relative under paragraph 117(1)(h).

Case Citation:

Sendwa v. Canada (Citizenship and Immigration), 2019 FCA 314 CanLII