Date: 20000830
Docket: IMM-4990-99
BETWEEN:
JASMAIL KULAR
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] This is an application for judicial review of an Immigration Appeal Division (the "IAD") decision dated September 20, 1999 which dismissed the applicant's appeal of a visa officer's decision (rendered on November 26, 1997) refusing the applicant's sponsorship of her husband pursuant to subsection 4(3) of the Immigration Regulations.1
[2] Without hearing the applicant's evidence, the IAD dismissed her appeal for lack of jurisdiction; specifically, on the basis of res judicata.2 The applicant had previously submitted a similar sponsorship application, which had been refused by another visa officer three years before3 for the same reason, namely, subsection 4(3) of the Regulations. Consequently, the IAD held that the matter had already been determined and that res judicata applied. To support its decision, the IAD referred to Kaloti v. MCI (1998), 153 F.T.R. 289 where Dubé J. upheld an IAD decision which had dismissed the applicant's second appeal of a refused sponsorship on the grounds of res judicata. The IAD noted that Dubé J. had certified the following question:
| May an applicant reapply for admission to Canada or the spouse as a member of the family class under paragraph 4(3) of the Immigration Regulations on a ground of a change of circumstances where a previous application by him has been denied on the ground that she entered into the marriage primarily for the purpose of gaining admission to Canada and not with the intention of residing permanently with her spouse? |
[3] When the impugned decision was rendered, the Federal Court of Appeal had not yet made a determination in the Kaloti appeal and as a result, the IAD considered itself bound by Dubé J.'s decision. The IAD denied the applicant's request to postpose its decision until the Court of Appeal disposed of Kaloti on the following grounds:
| At that time, the Court of Appeal had not yet set a date for Kaloti and there was therefore no indication on when that case would be heard and any decision rendered. Accordingly, the IAD dismissed the applicant's appeal. |
[4] The Court of Appeal heard the appeal in Kaloti on March 3, 2000 and on March 13, 2000 it dismissed the applicant's appeal. The Court found that the question certified by Dubé J. "goes beyond the circumstances of this case". Décary J.A., who wrote the opinion for the Court, was of the view that the question, as framed, called upon the Court to answer a question which did not arise from the facts of the case. He then went on to dispose of the case in the following terms:
| [8] Also, the certified question speaks in terms of "a change of circumstances". These terms are inappropriate. The only "circumstance" in proceedings under subsection 4(3) of the Regulations is the intent of the sponsored spouse at the time of the marriage. That intention is fixed in time and cannot be changed. What the learned Judge must have meant, rather, was whether a new application could be made based on relevant and permissible new evidence pertaining to a spouse's intent at the time of marriage. However, in this case, as counsel for the appellant has conceded, for all practical purposes the second application was not based on any new evidence. |
| [9] We are left with a rather simple question: does the Appeal Division have the authority to summarily dismiss an appeal when the appellant seeks to re-litigate, on essentially the same evidence, an issue which the Appeal Division has already |
| decided? |
| [10] The answer has to be in the affirmative. Rearguing a case in appeal for the sake of reargument offends public interest. It is well recognized that superior courts have the inherent jurisdiction to prevent an abuse of their process and there is some |
| suggestion that administrative tribunals do too. |
| [11] Whether that suggestion with respect to administrative tribunals is well-founded need not be further explored here because by the very terms of its enabling statute, the Appeal Division is a "court of record" which has, "as regards [...] matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record" (subsections 69.4(1) and (3) of the Immigration Act). Clearly, therefore, the Appeal Division has jurisdiction to control its process and to prevent its abuse. It may entertain, as it did in this case, preliminary motions to summarily dispose of an appeal which is but an abusive attempt to re-litigate what had been litigated in a previous appeal. A full hearing on the merits of the appeal is not necessary. |
| [12] In the case at bar, counsel for the appellant expressed the view that it was open to an unsuccessful applicant to file a new sponsorship application and pay the scheduled fees in order to require the Appeal Board time and time again as the case |
| may be, to go through a full hearing. The process, in other words, is there to be abused. That, of course, cannot be. |
| [13] While the issue of abuse of process was not squarely raised with the Appeal Division and the Motions Judge, it is implicit in their reasons for judgment that they were both of the view that there was, in the instant case, an abuse of process. |
| The Appeal Division used the expression "appeal by attrition" to describe what was really happening and the Motions Judge did use the very words "abuse of process". In the circumstances, it would serve no useful purpose to send the matter back for |
| express consideration of the abuse of process argument. Nonetheless, one should remain aware of the distinction to be made between "res judicata" and "abuse of process" which has been recently described as follows by Auld L.J. in Bradford & |
| Bingley Building Society v. Seddon: In my judgment, it is important to distinguish clearly between res judicata and abuse of process not qualifying as res judicata, a distinction delayed by the blurring of the two in the court's subsequent application of the above dictum. The former, in its cause of action estoppel form, is an absolute bar to re-litigation, and in its issue estoppel form also, save in "special cases" or "special circumstances" [...] The latter, which may arise where there is no cause of action or issue estoppel, is not subject to the same test, the task of the court being to draw the balance between the competing claims of one party to put his case before the court and of the other not to be unjustly hounded given the earlier history of the matter [...] |
| [14] I agree therefore with counsel for the respondent that it is not necessary in this case to resort to the doctrine of res judicata. The decision of the Appeal Division to summarily dismiss the appeal was open to it in the exercise of its jurisdiction to |
| prevent an abuse of its process. |
| [15] The appeal should be dismissed with costs. |
[5] I wish to point out that in Kaloti, before the Court of Appeal, counsel for the applicant conceded that his client's second sponsor application was not based on any new evidence. That is why, in my view, the Court of Appeal concluded that it was open to the IAD to dismiss the application so as to prevent an abuse of its process. The Court of Appeal did not, as a result, address the issue of res judicata.
[6] In Kaloti, the Court of Appeal did not decide whether an applicant could bring a second application based on new evidence, i.e., evidence that was relevant and admissible. In other words, can an applicant bring a second application so as to demonstrate the intent of the sponsored spouse at the time of the marriage, as is required under subsection 4(3) of the Regulations? In my view, such an application can be brought.
[7] Whether the second application will constitute an abuse of process or whether it should be dismissed by reason of res judicata are questions which the IAD will have to decide. However, it seems to me that the IAD must allow the applicant to present her evidence before deciding these issues. If in the IAD's opinion the evidence adduced does not constitute new evidence, then it will certainly be open to it to dismiss the application on the ground that it is abusive of its process. If the evidence adduced is in fact new evidence, then the Board can decide whether the issues raised are res judicata.
[8] I am therefore of the view that the Board made a reviewable error when it dismissed the applicant's appeal before allowing the applicant to present her evidence. Consequently, the decision of the IAD rendered on September 20, 1999 will be set aside and the matter will be returned for rehearing and redetermination by a different panel.
"Marc Nadon"
Judge
Ottawa, Ontario
August 30, 2000
__________________1 "The family class does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse".
2 The Minister made a motion at the hearing requesting that the appeal be dismissed for lack of jurisdiction.
3 The first refusal was on November 24, 1994. Judicial review proceedings were commenced, but were discontinued on November 15, 1996.