CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Kular v. Canada (Minister of Citizenship and Immigration)
IMM-4990-99
Nadon J.
30/8/00
5 pp.
Application for judicial review of IAD decision dismissing applicant's appeal from visa officer's decision refusing applicant's sponsorship of husband pursuant to Immigration Regulations, s. 4(3) on basis marriage not bona fide--IAD dismissed appeal on basis of res judicata: applicant had previously submitted similar sponsorship application, refused by another visa officer 3 years before, for same reason--IAD referred to Kaloti v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 289 (F.C.T.D.) in support--Application allowed--When IAD handed down decision, F.C.A. had not yet heard appeal in Kaloti, and IAD denied applicant's request for stay until disposal of appeal--When F.C.A. [2000] 3 F.C. 390 finally dismissed appeal in Kaloti, did so without resorting to doctrine of res judicata as second application not based on any new evidence and open to IAD in exercise of jurisdiction to summarily dismiss appeal to prevent abuse of process--Applicant could bring second application, based on new, relevant and admissible evidence, so as to demonstrate intent of sponsored spouse at time of marriage--IAD must allow applicant to present evidence before deciding issues--If no new evidence presented, open to IAD to find abuse of process--If new evidence presented, IAD can decide whether issues raised res judicata--IAD committed reviewable error when dismissed applicant's appeal before allowing applicant to present evidence--Immigration Regulations, 1978, SOR/78-172, s. 4(3).