On Indian Marriages especially where a party is divorced before, a federal court decision of GILL V CIC is very interesting one. Please note that having children out of a relationship does not guarantee that your appeal be allowed. There had been several other cases where even after having 2 kids appeal was rejected. Federal Court decision directs tribunal Members to be mindful of previous immigration history of the appellant. There are several other cases which refers to credibility of parties, apprehension of bias, interpretation of proceedings and procedural fairness and may assist you while in this situation. (www.CANLII.com). Its important to understand that IAD Members are not bound by decision taken by higher courts instead can take a note of it because circumstances and facts of a cases usally differ from others.
At times its better not to appeal to IAD but instead to reapply with a PERFECTED application especially if there are change in circumstances i.e birth of child etc in a spousal relationship.( Please remember you may have to wait for 2.5 years to be heard at the BOARD). So the question is; should you wait 2.5 years or reapply and may be successful at the POST within 6 months. I am also usally very mindful of 'res judicata'. Its also called abuse of process. So in other words if you are heard once before a Member at IAD hearing, you may not get another chance unless otherwise there are serious change in circumstances.
LOW INCOME CUT OFF CASES: JUGPHALL v CIC and DANG V CIC are leading cases on this issue. Current income is a strong H&C factor (one of the factors) in allowing the appeal in equity. The Board Members are also referring to the latest decision in MALATA (trackable earning while applying JUGPHALL). i.e simply giving a copy of NOA and income on line 150 may not be good enough; you must show a track how this income was actually produced.
(please note! The Board members are using preceeding 3 years income and 30% higher of MNI while applying 'Jugphall' decision (see decision of Surjit Singh Chohan by member Kenneth Mclean). Anything short of it will be caught by 'Cherwa' Decision of federal Court.) If Cherwa test is applied you need TONS of H&C.
Section 117(1)(c) refusals where sponsor is sponsoring step parent or lets say principal parent is step and dependent is a biological mother, CIC v VONG FC 855 (canlii) is an interesting case to follow
Section 11(9)(d) cases non accompanying/non examined cases are seriously difficult cases. Perhaps, the better remedy is to request H&C (A125) to VISA POST and if rejected go to FC.
Medical: Hilowitch (Supreme court case) Jarnail Singh Johal IAD decision are important cases to consider..
Capacity to Consent in Marriage Cases: Khela V CiC Malay V CIC
Assessment by a licensed Pshcologist is extremely important to ensure validity of marriage in relation to capacity to consent.
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