Judgments

[2000] 3 F.C. 390

A-526-98

Yaspal Singh Kaloti (Appellant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Kaloti v. Canada (Minister of Citizenship and Immigration) (C.A.)

Court of Appeal, Décary, Sexton and Evans JJ.A. —Toronto, March 3; Ottawa, March 13, 2000.

Citizenship and Immigration — Immigration practice — Appeal from dismissal of application for judicial review of IRB, Appeal Division’s dismissal of appeal — Appellant applying for permanent residence of wife in 1993, again in 1995 — Both applications refused on ground spouse excluded from family class by Immigration Regulations, 1978, s. 4(3) as marriage not bona fide — IRB,AD confirming visa officer’s decision, dismissing first appeal — Dismissing second appeal on basis of res judicata — No new evidence — Under Immigration Act, s. 69.4(1), (3) IRB,AD “court of record” having “as regards matters necessary or proper for due exercise of jurisdiction all such powers, rights, privileges as are vested in a superior court of record” — Thus having jurisdiction to control process, prevent abuse — Second appeal abusive attempt to relitigate matter litigated in previous appeal — IRB,AD having jurisdiction to summarily dispose of such appeal.

Citizenship and Immigration — Status in Canada — Permanent residents — F.C.T.D. dismissing application for judicial review, certifying question as to whether sponsor can re-apply for admission to Canada of spouse as member of family class under Immigration Regulations, 1978, s. 4(3) on ground of change of circumstances where previous application denied on ground immigrant entered into marriage primarily to gain admission to Canada — Question going beyond circumstances — Inviting opinion as to right to even re-apply to visa officer — Inappropriate to speak of change of circumstances in s. 4(3) proceedings — Intent of sponsored spouse at time of marriage fixed in time, cannot change.

Practice — Res judicata — Appeal from dismissal of application for judicial review of IRB,AD’s dismissal of appeal — Appellant applying for permanent residence of wife in 1993, 1995 — Applications refused on ground spouse excluded from family class by Immigration Regulations, 1978, s. 4(3) as marriage not bona fide — IRB,AD dismissing second appeal on basis of res judicata — Not necessary to resort to res judicata — Within IRB,AD’s jurisdiction to summarily dismiss appeal to prevent abuse of process.

This was an appeal from the Trial Division’s dismissal of an application for judicial review of the Immigration and Refugee Board, Appeal Division’s dismissal of an appeal from the visa officer’s refusal of an application for permanent residence. In 1993 the appellant’s application for permanent residence of his wife was refused on the ground that she was not a member of the family class under Immigration Regulations, 1978, subsection 4(3) as the marriage was not bona fide, but was entered into primarily for the purpose of gaining admission to Canada. The Appeal Division confirmed the visa officer’s decision and dismissed the appeal. In 1995 the appellant applied again to sponsor his spouse for permanent residence. That application was refused on the same grounds. The Appeal Division dismissed the second appeal on the basis of res judicata. Dubé J. denied the application for judicial review on the ground that subsection 4(3) is centred on the intention of a spouse at the time of the marriage which cannot be affected by a subsequent change of intentions. He certified the following question: whether an applicant can re-apply for admission to Canada of his spouse as a member of the family class under subsection 4(3) on the 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.

Held, the appeal should be dismissed.

The certified question went beyond the circumstances herein. It invited an opinion as to the right of an applicant to even re-apply to a visa officer, an issue which did not arise here. Also, use of “change of circumstances” was inappropriate since the only “circumstance” in proceedings under subsection 4(3) was the intent of the sponsored spouse at the time of the marriage. That intention is fixed in time and cannot be changed. The second application was not based on any new evidence. Therefore, the issue was whether the Appeal Division has the authority to summarily dismiss an appeal which seeks to re-litigate, on essentially the same evidence, an issue which it has already decided. The answer was affirmative. Rearguing a case in appeal for the sake of reargument offends public interest. Under Immigration Act , subsections 69.4(1) and (3) 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”. 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 relitigate what had been litigated in a previous appeal. A full hearing on the merits is not necessary.

It was implicit in the reasons for judgment of the Appeal Division and the Motions Judge that there was an abuse of process herein, and thus it would serve no useful purpose to send the matter back for express consideration of the abuse of process argument. It was not necessary to resort to the doctrine of res judicata.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Immigration Act, R.S.C., 1985, c. I-2, ss. 69.4(1) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18), (3) (as enacted idem), 77(3)(a) (as am. by S.C. 1995, c. 15, s. 15).

Immigration Regulations, 1978, SOR/78-172, s. 4(3) (as am. by SOR/93-44, s. 4).

CASES JUDICIALLY CONSIDERED

APPLIED:

Bradford & Bingley Building Society v. Seldon, [1999] 1 W.L.R. 1482 (C.A.).

REFERRED TO:

O’Brien v. Canada (Attorney General) (1993), 12 Admin. L.R. (2d) 287; 153 N.R. 313 (F.C.A.); R. v. Jewitt, [1985] 2 S.C.R. 128; (1985), 20 D.L.R. (4th) 651; [1985] 6 W.W.R. 127; 21 C.C.C. (3d) 7; 47 C.R. (3d) 193; 61 N.R. 159; Levi Strauss & Co. v. Roadrunner Apparel Inc. (1997), 76 C.P.R. (3d) 129; 221 N.R. 93 (F.C.A.); Sawatsky v. Norris (1992), 10 O.R. (3d) 67; 93 D.L.R. (4th) 238; 6 Admin. L.R. (2d) 228 (Gen. Div.); Nisshin Kisen Kaisha Ltd. v. Canadian National Railway Co., [1981] 1 F.C. 293 (1980), 11 D.L.R. (3d) 360 (T.D.); affd by [1982] 1 F.C. 530 (1981), 122 D.L.R. (3d) 599; 36 N.R. 181 (C.A.).

APPEAL from the Trial Division’s dismissal of an application for judicial review (Kaloti v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 289; 49 Imm. L.R. (2d) 187 (F.C.T.D.)) of the dismissal of an appeal by the Appeal Division of the Immigration and Refugee Board against a visa officer’s denial of a spousal sponsorship for permanent residence application. Appeal dismissed.

APPEARANCES:

Stephen W. Green for appellant.

Kevin Lunney for respondent.

SOLICITORS OF RECORD:

Green and Spiegel, Toronto, for appellant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

[1]        Décary J.A.: In August 1990, the appellant filed an undertaking of assistance to sponsor the application for permanent residence of his fiancée whom he subsequently married in India in February 1993. In May 1993, a visa officer refused his application pursuant to subsection 4(3) of the Immigration Regulations, 1978 [SOR/78-172 (as am. by SOR/93-44, s. 4)] (the Regulations) on the ground that the marriage was not bona fide but was entered into by the spouse primarily for the purpose of gaining admission to Canada and not with the intention of residing permanently with the appellant. The visa officer determined that the appellant’s spouse was therefore not a member of the family class.

[2]        The appellant appealed to the Appeal Division of the Immigration and Refugee Board (hereinafter the Appeal Division) pursuant to paragraph 77(3)(a) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1995, c. 15, s. 15)]. The Appeal Division confirmed the decision of the visa officer and dismissed the appeal for lack of jurisdiction on February 20, 1995 because the appellant’s spouse was a person described in subsection 4(3) of the Immigration Regulations, 1978 and therefore not a member of the family class.

[3]        In 1995, the appellant made a new application to sponsor his spouse for permanent residence and paid a new fee for processing. The appellant’s spouse was interviewed on October 17, 1995 in India and the appellant was interviewed on January 22, 1996. Following the interviews, the visa officer refused the application for permanent residence on the same grounds as are outlined above. The appellant filed a new notice of appeal to the Appeal Division.

[4]        The respondent then made a motion to dismiss the appeal for lack of jurisdiction on the basis of res judicata. The motion was granted by the Appeal Division. The appellant applied to the Federal Court, Trial Division for leave and for judicial review. Mr. Justice Dubé dismissed the application for judicial review[1] but certified the following question of general importance:[2]

“May an applicant re-apply for admission to Canada of his spouse as a member of the family class under s. 4(3) of the Immigration Regulations on the 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?”

[5]        Relying on the decision of this Court in O’Brien v. Canada (Attorney General)[3], Dubé J. expressed himself as follows:[4]

Consequently, I must find that, generally, res judicata has an application in public law. Otherwise applicants could re-apply “ad infinitum” and “ad nauseam” with the same application, an abuse of the process of administrative tribunals. However, that would not prevent an applicant from launching a second application based on change of circumstances provided, of course, that the change of circumstances was relevant to the matter to be decided.

Again, in the instant matter, the plain meaning of s. 4(3) of the Immigration Regulations is clearly centered on the intention of a spouse at the time of the marriage, a situation that cannot be affected by a subsequent change of intentions on her part. Therefore, the applicant’s spouse was properly adjudged not to be a member of the family class and the matter became res judicata. It does not follow that she may not seek admission to Canada under some other provisions of the Immigration Act.

[6]        The respondent, who had relied in both instances below on the doctrine of res judicata, refined his strategy in his submissions before us. He submitted that the proceeding undertaken by the appellant before the Appeal Division was an abuse of process, of a kind “which the doctrine of res judicata seeks to prevent”. According to counsel, resort to the doctrine of res judicata was “not ultimately necessary, as every statutory tribunal has an implied or ancillary jurisdiction to prevent an abuse of its own process”.

[7]        The question as certified by the Motions Judge goes beyond the circumstances of this case. As phrased, it would invite an opinion as to the right of an applicant to even re-apply to a visa officer, an issue which does not arise here.

[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 relitigate, 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[5] and there is some suggestion that administrative tribunals do too.[6]

[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) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18] and (3) [as enacted idem] 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 relitigate 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:[7]

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 relitigation, 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.

Sexton J.A.: I agree.

Evans J.A.: I agree.

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