Gharu v. Canada (Minister of Citizenship and Immigration), 2003 FCT 237

Date: 20030225

Docket: IMM-5848-01

Neutral citation: 2003 FCT 237

BETWEEN:

                                                              PUPPY KAUR GHARU

                                                                                                                                                       Applicant

                                                                                 and

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]                 These reasons arise out of an application for judicial review of a decision of the Immigration Appeal Division (the "Tribunal") of the Immigration and Refugee Board granting the motion of the Minister to dismiss the Applicant's appeal on the ground that the appeal constituted an abuse of process. The Tribunal arrived at its decision without a full hearing on the merits of the appeal. The decision that is under review is dated the 23^rd of November, 2001.

BACKGROUND AND THE DECISION UNDER REVIEW

[2]                 The Applicant was landed in Canada in August of 1991. A year later, she married Makhan Singh Gharu in India.

[3]                 In September of 1992, the Applicant filed an Undertaking of Assistance on behalf of her husband to support his entry to Canada as a "member of the family class" as that expression is defined in subsection 2(1) of the Immigration Regulations, 1978^[1]. Based on the Applicant's sponsorship, Mr. Gharu (the "Applicant's husband") sought entry to Canada. His application was refused in July of 1993 on the basis that he was "...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].

[4]                 The Applicant filed a second Undertaking of Assistance in favour of her husband in May of 1994. Her husband again sought entry to Canada. His second application was refused in May of 1995 on the same basis as that on which his first application was refused.

[5]                 The Applicant appealed the second refusal of entry to the Immigration Appeal Division. In November of 1997, the Immigration Appeal Division dismissed the Applicant's appeal.

[6]                 In 1998, the Applicant filed a third Undertaking of Assistance in favour of her husband. The Applicant's third attempt to enter Canada as a member of the family class was denied on the 26^th of July, 1999, once again on the basis that he did not fall within the family class.

[7]                 The Applicant filed a fourth Undertaking of Assistance in favour of her husband on the 8^th of November, 1999. The Applicant's husband's fourth application to enter Canada as a member of the family class was rejected on the 13^th of July, 2000, on the same basis on which his earlier applications had been rejected. It was this fourth rejection that was before the Tribunal and resulted in the decision here under review. In its reasons in support of the decision under review, the Tribunal wrote:

The Federal Court of Appeal, in Kaloti, has confirmed that the [Tribunal] "has jurisdiction to control its process and to prevent its abuse. It may entertain 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".

The refusal in this case was based on section 4(3) of the Immigration Regulations, 1978 ... . The legal validity on the marriage was not challenged. The test to be applied on this motion was also set out in Kaloti:

. . . the certified question speaks in terms of "a change in circumstances". These terms are inappropriate. The only "circumstance" in proceeding under subsection 4(3) of the Regulations in [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.

The issue to be determined is whether there is relevant and permissible new evidence pertaining to Mr. Gharu's intent at the time of the marriage. This evidence can be described as decisive new evidence demonstrably capable of altering the result of the first hearing. It can be evidence that existed at the time of the first appeal but was not reasonably available or, as under the Act, a person may reapply to sponsor an application for permanent residence, evidence that did not exist at the time of the first appeal but came about between the dismissal of the first appeal and this appeal. Decisive new evidence must be probative of the intention fixed in time by the relevant definition of the Act, such as the intention of an applicant at the time of marriage, and must be fresh evidence which genuinely affects an evaluation of the intention rather than merely additional evidence that tries to bolster or create the intention.

[8]                 The Tribunal evaluated the new evidence that was before it. It determined that it was not "decisive new evidence ... probative of the intention [of the Applicant's husband] fixed in time by the relevant definition of the Act, such as the intention of [the Applicant's husband] at the time of marriage, ..." and determined that it did not amount to "...fresh evidence which genuinely affects an evaluation of the intention rather than merely additional evidence that tries to bolster or create the intention."

[9]                 Thus, the Tribunal determined the second application before it by the Applicant on behalf of her husband to be an abuse of process and rejected the application without a full hearing on the merits.

THE ISSUES

[10]            While counsel for the Applicant identified three (3) issues on this application for judicial review in the Applicant's written representations, I am satisfied that those three (3) can briefly be summarized as follows: first, whether the Tribunal erred in its determination that mere re-litigation may constitute an abuse of process; and secondly, whether the Tribunal committed a reviewable error in deciding that the fresh evidence before it was not sufficient, qualitatively and quantitatively, to warrant a full hearing of the appeal.

[11]            At hearing, counsel urged that the Tribunal exceeded its jurisdiction in determining in favour of the Respondent on his motion for a determination that the appeal before it was an abuse of process without providing the applicant with a full hearing on the merits. I indicated to counsel that, since this issue was not identified in the Applicant's written material, I would simply not entertain argument on the issue.

ANALYSIS

[12]            As noted in a quotation earlier in these reasons from the reasons of the Tribunal, the Tribunal relied on the decision of the Federal Court of Appeal in Kaloti v. Canada (Minister of Citizenship and Immigration)^[3]. The decision of the Immigration Appeal Division that was there under consideration, producing essentially the same result as that arrived at by the Tribunal in this matter, was made by the Immigration Appeal Division and affirmed on judicial review to the Trial Division of this Court on the basis res judicata. Justice Décary, for the Court of Appeal on appeal from this Division, wrote at paragraphs 9 to 11 of his reasons:

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?

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.

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" ... . 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.                                                                                                                                 [citations omitted]

[13]            Justice Décary continued in paragraphs 13 and 14 of his reasons as follows:

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. ...

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.                                                                                                                                   [Some text, one citation and a quotation from that citation omitted]

[14]            The Court of Appeal judgment in Kaloti was rendered on the 13^th of March, 2000. On the 30^th of August in the same year, Justice Nadon then of the Trial Division, rendered judgment in Kular v. Canada (Minister of Citizenship and Immigration)^[4]. Justice Nadon wrote at paragraphs 5 to 8 of his reasons:

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.

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.

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.

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.                

[15]            The Supreme Court of Canada delivered its judgment in Blencoe v. British Columbia (Human Rights Commission)^[5] on the 5^th of October, 2000. While the factual background that was there before the Supreme Court of Canada was substantially different, in his reasons on behalf of the majority, Justice Bastarache addressed the issue of abuse of process. He wrote at paragraph 120 of his reasons:

In order to find an abuse of process, the court must be satisfied that, "the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted"... . According to L'Heureux-Dubé J. in Power, ..., "abuse of process" has been characterized in the jurisprudence as a process tainted to such a degree that it amounts to one of the clearest of cases. In my opinion, this would apply equally to abuse of process in administrative proceedings. For there to be abuse of process, the proceedings must, in the words of L'Heureux-Dubé J., be "unfair to the point that they are contrary to the interests of justice" ... . "Cases of this nature will be extremely rare" (Power, ...). In the administrative context, there may be abuse of process where conduct is equally oppressive.

[16]            In Dhaliwal v. Canada (Minister of Citizenship and Immigration)^[6], my colleague Justice Campbell, after citing Kaloti and Kular, wrote at paragraphs 5 to 7 of his reasons:

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.

Relitigation, in and of itself, is not a sufficient basis for a finding of abuse of process; an additional serious element, such as unjust harassment, is required... . 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.

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. ...                                                                                                                                                  [one citation omitted, emphasis added]   

[17]            With great respect, I am satisfied that an applicant seeking to relitigate on facts such as those now before the Court must present more than simply "...new evidence pertaining to a spouse's intent at the time of marriage." In a quotation from the reasons of the Tribunal for the decision here under review that appears earlier in these reasons, the Tribunal speaks of "relevant and permissible new evidence" that can be described as "decisive new evidence demonstrably capable of altering the result of the first hearing." The Tribunal continued:

Decisive new evidence must be probative of the intention fixed in time by the relevant definition of the Act such as the intention of the applicant at the time of marriage, and must be fresh evidence which genuinely affect an evaluation of the intention rather than merely additional evidence that tries to bolster or create the intention.

On the unique facts of this matter, including as they do four (4) sponsorships and related applications for landing in Canada, each rejected by a different Visa Officer on common grounds, each of which rejections could have been appealed to the Tribunal and two (2) of which were in fact so appealed, I adopt the foregoing comments of the Tribunal as my own.

[18]            The Applicant has had "her day in court". She is not precluded by the determination of abuse of process that is here under review from again seeking to have her husband's intent at the time of marriage redetermined on the basis of truly fresh evidence that is both qualitatively and quantitatively significant. On the facts that were before the Tribunal in this matter, and that are before the Court, I am satisfied that the Tribunal's conclusion that the new evidence that was before it did not meet that test but was rather "...merely additional evidence that tries to bolster or create the intention", was reasonably open to it. This fact situation represents, I am satisfied, one of those "extremely rare" and "clearest of cases" to which Justices Bastarache and Campbell referred in reasons earlier quoted.

CONCLUSION

[19]            Based upon the brief foregoing analysis, this application for judicial review will be dismissed. Neither counsel, when advised of the result at the close of hearing, recommended certification of a question. I am satisfied that no serious question of general importance arises on the facts of this matter. No question will be certified.

______________________________

       J. F.C.C.

Ottawa, Ontario

February 25, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                 IMM-5848-01

STYLE OF CAUSE: PUPPY KAUR GHARU v. THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:         CALGARY, ALBERTA

DATE OF HEARING:           FEBRUARY 12, 2003

REASONS FOR ORDER OF GIBSON, J

DATED:                                    FEBRUARY 25, 2003                                                    

APPEARANCES:

Mr. Dalwinder S. Hayer                                      FOR APPLICANT

Ms. Tracey King                                                  FOR RESPONDENT

SOLICITORS OF RECORD:

Mr. Dalwinder S. Hayer                                      FOR APPLICANT

Barrister and Solicitor

Calgary, Alberta

Morris Rosenberg                                                 FOR RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario