PRACTICE |
Sandhu v. Canada (Minister of Citizenship and Immigration)
IMM-2939-99
McKeown J.
31/8/00
5 pp.
Stare decisis--Application for judicial review of decision by Immigration Appeal Division (IAD) dismissing appeal of decision to refuse sponsored application for landing for applicant's mother, sister--Whether IAD erred in law in failing to follow precedent, stare decisis, in ignoring, misapprehending relevant evidence--Panel favoured two decisions of IAD over F.C.T.D. decision in Kirpal v. Canada (Minister of Citizenship and Immigration), [1997] 1 F.C. 352, to support conclusion it could be "mindful" of mother's medical condition in considering appeal on humanitarian, compassionate grounds--IAD refused to follow Kirpal, did not attempt to distinguish case--Principle of stare decisis applies, panel erred in law in failing to follow precedent of Gibson J.--Not in accordance with doctrine of stare decisis for IAD to look at two other decisions of IAD in preference to F.C.T.D. decision--IAD decision should have referred to Federal Court of Appeal decisions, made it clear it was following latter's decisions in preference to Kirpal decision--Validity of Kirpal decision doubtful, but IAC bound to follow Trial Division decisions on point unless distinguished, based on decisions of Federal Court of Appeal, Supreme Court of Canada--Panel erred in law in refusing to follow, failing to distinguish binding precedent from F.C.T.D.--Rule of law must prevail--Affidavit evidence of applicant must be accepted in preference to statements of IAD, due to fact transcript of panel proceedings lost for reasons beyond control of parties--Board erred in making foregoing perverse finding of facts --Application allowed.