Kaloti v. Canada ( Minister of Citizenship and Immigration )
IMM-4932-97
Dubé J.
8/9/98
6 pp.
Judicial review of Immigration and Refugee Board, Appeal Division's dismissal of appeal on ground res judicata-In 1990 applicant filing undertaking of assistance to sponsor application for permanent residence of fiancée, whom subsequently married in India in February 1993-Visa officer refusing application pursuant to Immigration Regulations, s. 4(3) on ground marriage not bona fide but entered into primarily for purpose of gaining admission to Canada-S. 4(3) excluding from family class spouse who entered into marriage primarily for purpose of gaining admission to Canada as member of family class, and not with intention of residing permanently with other spouse-Appeal Division confirming visa officer's decision-In 1996 applicant re-sponsored wife's new application for permanent residence-Visa officer denying application, leading to Appeal Division's impugned decision-Applicant submitting Appeal Division ought to have considered whether spouse's intention changing since first appeal-Generally res judicata having application in public law-Not preventing applicant from launching second application based on change of circumstances, provided relevant to matter to be decided-Plain meaning of s. 4(3) clearly centred on intention of spouse at time of marriage, situation not affected by subsequent change of intentions-Applicant's spouse properly adjudged not to be member of family class, matter res judicata-Question certified: may applicant reapply for admission to Canada of spouse as member of family class under Immigration Regulations, s. 4(3) on ground change of circumstances where previous application denied on ground entered into marriage primarily for purpose of gaining admission to Canada, not with intention of residing permanently with spouse-Application dismissed-Immigration Regulations, 1978, SOR/78-172 s. 4(3) (as enacted by SOR/84-140, s. 1; 93-44, s. 4).