CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Dhaliwal v. Canada (Minister of Citizenship and Immigration)
IMM-1760-01
2001 FCT 1425, Campbell J.
21/12/01
5 pp.
Application for judicial review of decision by Immigration Appeal Division (IAD) dismissing applicant's appeal on ground of abuse of process--Applicant landed immigrant in Canada on August 31, 1991--Since 1992, applicant made three separate undertakings to sponsor husband to Canada-- All husband's concurrent applications for permanent residence as member of family class refused based on Immigration Regulations, 1978, s. 4(3)--With respect to most recent notice of appeal to IAD, respondent filed notice to dismiss appeal on ground of res judicata, abuse of process--Applicant arguing no evidence before IAD that met test for finding of abuse of process--Relitigation not sufficient basis for finding abuse of process--Additional serious element, such as unjust harrassment, required--Abuse of process must be invoked only in clearest of cases which are extremely rare--Context of present case not demonstrating high threshold met--New applications cannot be made without new evidence pertaining to spouse's intent at time of marriage--Evidence of continuing commitment new as current nature not present in previous hearing, speaks to parties' intention at time of marriage--IAD had before it ample, new, relevant evidence which should have been carefully considered--No evidence applicant made abusive attempt to relitigate--IAD's decision respecting abuse of process made in reviewable error--Application allowed--Immigration Regulations, 1978, SOR/78-172, s. 4(3) (as am. by SOR/93-44, s. 4).