The following is a fax that I sent to the IAD and CBSA regarding the validity of a visa office refusal on a spousal sponsorship. My client had entered Canada along with his first wife and stayed for not quite a year. Both returned to their country of origin and obtained a divorce there before returning to Canada. This only became an issue when my client returned to his country to re-marry. When he sponsored his second wife, the visa office refused on the grounds that the divorce would not be recognized under the Divorce Act as he was not living in his country of origin for the requisite period of time.
Rather than wait for the 2 years for the appeal to be heard by the Immigration Appeal Division, I obtained an Order from the Court of Queen's Bench of Alberta recognizing the validity of the foreign divorce. I then presented it to the IAD and CBSA expecting the CBSA to consent. Imagine my surprise when the CBSA indicated that the IAD was to somehow ignore the commandment.
This was my response.
I am in receipt of Minister's correspondence dated February 12, 2015 indicating that even though a Superior Court, that is, a Court of Queen's Bench in Canada has recognized the validity of the appellant's divorce, they are of the position that the visa office refusal is valid in law.
The visa office refusal is no longer valid in law.
If the Minister's counsel position is accepted, it would undermine the Rule of Law in Canada.
I refer the IAD and the Minister's Counsel to Master Funduk's decision concerning stare decisis.
"I am bound by decisions of Queen's Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior court's judicial ladder. I do not overrule decisions of a judge of this court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around".
A visa officer does not overrule a decision of a Judge of the Court of Queen's Bench of this country.
It is the other way around.
I'm happy to advise that I received a decision today from the IAD confirming that it must respect a decision of a Superior Court of this country and remitting the matter back to the visa office for further processing.