Date: 20011221
Docket: IMM-1760-01
Neutral citation: 2001 FCT 1425
BETWEEN:
BALJIT KAUR DHALIWAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.:
[1] The Applicant brings this judicial review of the decision of the Immigration Appeal Division (the "IAD") dated March 13, 2001, wherein it dismissed the Applicant's appeal on the ground that it constituted an abuse of process.
[2] The Applicant became a landed immigrant in Canada on August 31, 1991. On August 21, 1992, the Applicant married Jaswant Singh Dhaliwal in India. Since 1992, the Applicant has made three separate undertakings to sponsor her husband to Canada, and all of her husband's concurrent applications for permanent residence as a member of the family class have been refused based on s.4(3) of the Immigration Regulations, 1978, which reads as follows:
4(3) 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.
4(3) La catégorie des parents ne comprend pas le conjoint qui s'est marié principalement dans le but d'obtenir l'admission au Canada à titre de parent et non dans l'intention de vivre en permanence avec son conjoint.
The Applicant appealed the second refusal to the IAD, but the IAD dismissed the appeal on September 8, 1997, also on the basis of s.4(3).
[3] The Applicant also appealed the third refusal which is the start point of the judicial review in the present case. On each of the Applicant's efforts, she has attempted to show that evidence of the continuing relationship between she and her husband over the past ten years is proof that they, at the time of their marriage, intended to reside permanently together. That is, the Applicant bases her applications on the concept that subsequent proof of commitment is proof of commitment at the time of marriage.
[4] With respect to the most recent notice of appeal to the IAD, the Respondent filed a notice to dismiss the appeal on the ground that it was res judicata or an abuse of process. The IAD accepted submissions and heard oral arguments on the motion from both parties. On March 13, 2001, the IAD granted the motion and dismissed the Applicant's appeal on the basis that it constituted an abuse of process. In doing so, the IAD applied the decisions in Kaloti v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 390 and Kular v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1393 QL) and concluded as follows:
I find that the appellant is seeking to re-litigate, on essentially the same evidence, what has been litigated in a previous appeal. I therefore find this second attempted appeal to be an abuse of process. I find that the present appeal constitutes an abuse of process because it is based on the same facts and circumstances as the previous appeal. It is not necessary to resort to the doctrine of res judicata in the instant case.
[5] In effect, the Applicant argues that there was no evidence before the IAD that met the test for the finding of abuse of process. The only issue on this judicial review is whether the Applicant is correct.
[6] Relitigation, in and of itself, is not a sufficient basis for a finding of abuse of process; an additional serious element, such as unjust harrassment, is required (Bradford & Bingley Building Society v. Seddon, [1999] 1 W.L.R. 1482 (C.A.) at 1491). An abuse of process determination prevents a party from seeking redress from a court. In light of the severity of this result, the Supreme Court of Canada has held that abuse of process must only be invoked in the "clearest of cases" and such cases will be "extremely rare" (Blencoe v. British Columbia (Human Rights Commission), [2000] S.C.J. No. 43). In my opinion, the context of the present case does not demonstrate that this high threshold has been met.
[7] The Federal Court of Appeal held in Kaloti that an "abusive attempt to relitigate" can be an abuse of process. Implicit in Kaloti, and accepted in Kular, is the point that, in matters such as this, new applications cannot be made without new evidence pertaining to a spouse's intent at the time of marriage. The Applicant argues that the evidence of continuing commitment is new in that its current nature was not present in the previous hearing, and that it speaks to the parties' intention at the time of marriage. I agree with this submission.
[8] It is not contested that the IAD typically uses evidence of subsequent conduct (see: Ugwu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1241 (QL) (F.C.T.D.) and Meelu v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 25 (QL) (F.C.T.D.). In addition, s.5.9.1 of the Immigration Overseas Processing Manual lists several factors that visa officers should consider when deciding if a marriage is a marriage of convenience, including whether spouses have lived together. This guideline recognizes that evidence of commitment over time is capable of establishing bona fides at the time of marriage. The weight to be afforded to such evidence is a decision to be made after hearing the evidence.
[9] In my opinion, in the present case, the IAD had before it ample, new, and relevant evidence which should have been carefully considered. In the attempt to have the IAD do so, there is no evidence that the Applicant was making "an abusive attempt to relitigate". Therefore, I find that the IAD's decision respecting abuse of process is made in reviewable error.
O R D E R
[10] Accordingly, for the reasons provided, the IAD's decision is set aside and the matter is referred back to another panel for redetermination, on the direction that the panel hear the new evidence and decide on its admissibility and weight.
"Douglas R. Campbell"
JUDGE
Calgary, Alberta
December 21, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20011221
Docket: IMM-1760-01
BETWEEN:
BALJIT KAUR DHALIWAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1760-01
STYLE OF CAUSE: BALJIT KAUR DHALIWAL v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: December 20, 2001
REASONS FOR ORDER AND ORDER: CAMPBELL, J.
DATED: December 21, 2001
APPEARANCES:
Mr. Peter Wong FOR APPLICANT
Ms. Tracy J. King FOR RESPONDENT
SOLICITORS OF RECORD:
Caron & Partners
Calgary, Alberta FOR APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
Email this Content