Date: 20011210
Docket: IMM-1982-01
Neutral citation: 2001 FCT 1354
BETWEEN:
AMRIK SINGH SEKHON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant seeks judicial review of a decision of the Appeal Division of the Immigration and Refugee Board (the "Appeal Division") dated March 30, 2001, wherein the Appeal Division dismissed the appeal by the applicant.
[2] The issue is whether the Appeal Division breached the principles of natural justice by inviting the applicant to make submissions and denying the applicant an opportunity to be heard.
FACTS:
[3] The facts in this case are confusing at best. On August 27, 1997, the Appeal Division dismissed the appeal of the applicant from the refusal of his adopted son's application for permanent residence, finding that the appellant had failed "to establish a genuine parent-child relationship" or that " this adoption was entered into for any reason other than to gain admission" for the adopted son into Canada.
[4] On January 9th, 1998, the applicant filed a second application to sponsor his adopted son and then filed a notice of appeal from the refusal of the second application on May 5, 1999. On January 12, 2000, the Minister wrote to the Registrar of the Immigration and Refugee Board asking that they not reconsider this adoption pursuant to the principle of res judicata. The Minister's representative also asked that "the Board treat this letter as a motion and deal with this issue in chambers."
[5] The hearing of the appeal had been scheduled for April 5, 2000. The applicant's lawyer wrote to the Board on January 23, 2000, stating that his client had to undergo considerable expenditures and suggesting that he be allowed to make written submissions on the issue of res judicata upon receipt of the Minister's written submissions. He then stated: "I would request that the Board deal with the res judicata issue prior to the hearing".
[6] The Board then acknowledged the letter on January 28, 2000 and the letter of the Minister of January 12, 2000 and stated:
This issue will be dealt with by way of written submissions, as follows:
Counsel for the Appellant's reply on or before February 20, 2000
Counsel for the Minister's response on or before March 2, 2000
For some unknown reason, the applicant's lawyer never received a copy of this letter. Accordingly, on March 14, 2000, the applicant's lawyer wrote an urgent letter by fax to the Board stating that he had not heard a response to his letter of January 23, 2000. He also states:
... This case raises legal issues as to res judicata. I would request an urgent telephone conference call to discuss how we will proceed in light of the fact that my letter of January 23, 2000 has not yet been responded to.
The Board responded to that letter on March 16, 2000 and stated that they had responded and indicated:
Given the passage of time and the fact that the Federal Court of Appeal has now released its decision in Kaloti v. MCI (copy enclosed), the Board requests written submissions on the issues of res judicata and abuse of process in the following order:
Applicant, Counsel for the Minister, will have until March 30, 2000 to file his submissions Respondent, Mr. Sekhon, will have until April 13, 2000, to file his response Applicant, Counsel for the Minister, will have until April 20, 2000 to reply.
[7] The Minister then filed written submissions on the issues of res judicata and abuse of process on March 30, 2000 and the applicant in this case before me filed submissions on April 9, 2000. The applicant stated, inter alia:
2. ... the applicant notes that the hearing before the Appeal Division is pursuant to the decision of the Federal Court of Appeal in Kahlon. As such it is a hearing de novo and, as a result, it is open for the respondent to bring evidence up until the time of the hearing as to the creation of a genuine parent-child relationship. Therefore, with respect to paragraphs 16, 17 and 18, the respondent [the applicant in the case before me] submits that it is not possible for the applicant to assert without hearing the evidence that the case should be dismissed for abuse of process because the respondent has not yet been given any opportunity to present the evidence. The respondent submits therefore that the motion of the application is at this time premature.
[8] Then, the applicant makes specific submissions on the duty to hear evidence as follows:
22. The respondent submits that if the Appeal Division is entitled to consider res judicata, it can do so only after reaching a determination on the exercise of its discretion before it heard any testimony and before it considered the evidentiary basis of the second appeal. This issue appears not to have been raised in Kolati v M.C.I.
23. As noted above, this Court in Vasquez v M.C.I., recognized that while res judicata could apply, it required a determination of whether on the evidence there had been a change in conditions such that the discretion to refuse the claim because of an earlier refusal ought not be exercised to preclude recognition on the second claim. In the case at bar, the respondent submits that the Board must hear evidence before concluding that the doctrine of res judicata applies.
[9] The Minister then filed a reply on April 27, 2000. The Appeal Division of the Board did not issue its decision until March 30, 2001. However, on August 30, 2000, Mr. Justice Nadon of the Federal Court, Trial Division, issued reasons in Kular v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1393, wherein he stated that with respect to the intent of one of the parties to the marriage, new evidence could be produced before deciding res judicata. He stated specifically at paragraphs 6 and 7 as follows:
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, than 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.
ANALYSIS
[10] While I have some doubt as to whether the Kular case should apply in the case of an adopted child, in my view, the Board was bound to follow it. The Appeal Division did refer to Kular, supra, in its reasons as follows:
The respondent claims that it is premature to consider any new evidence at this time because an appeal hearing is a de novo hearing and that he is entitled to lead evidence up until the time of the hearing. He further submits that without hearing the evidence it is impossible to determine whether the appeal should be dismissed for abuse of process because he has not been given any opportunity to present the evidence. The panel is mindful that the Federal Court, Trial Division held in Kular that the IAD must allow the respondent to present evidence before deciding whether it constitutes new evidence or whether the appeal is abuse of its process. In my view this does not mean that the IAD must grant the respondent an oral hearing, but that he must be given the opportunity to present evidence. It is clear from the Federal Court of Appeal's decision in Kaloti, the IAD 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." The Court of Appeal held that "[a] full hearing on the merits of the appeal is not necessary." In this case the IAD entertained a motion to dismiss the appeal for lack of jurisdiction on the grounds of abuse of process and res judicata.
The respondent could have presented evidence by way of affidavit, as provided for in Rule 27(5) of the Immigration Appeal Division Rules, but he insisted on a full hearing of the appeal and the opportunity to present "new" evidence that may be created in the future (after the motion). In my view the motion brought by the Minister is similar to a motion for summary judgement. A responding party must "put their best foot forward" and not hang back waiting for trial or lie in the weeds. The respondent must provide the IAD with a summary of the facts that are alleged to be new and would justify allowing the second appeal to proceed. The IAD would then assume those facts to be true and decide whether they constitute new evidence and whether the evidence could not have been obtained at the time of the first appeal through due diligence or whether the new appeal is an abuse of process. ...
[11] I agree with the Appeal Division that they were under no obligation to grant a full oral hearing but I have some concern as to whether they provided a full opportunity to counsel for the applicant to be heard. In my view, the Appeal Division should have provided counsel with a copy of the Kular decision and asked them for their submissions with respect to the application of Kular to this case. The applicant's counsel also erred in not providing the Appeal Division with a summary of the proposed new evidence. The only evidence that was referred to by the Board, and of which they had knowledge, was in the sentence:
Even the visit of Mr. Sekhobn to India occurred after the second application was filed.
[12] In my view, in light of the Appeal Division's failure to allow comment by counsel on the Kular case, I am returning this matter to the Appeal Division. However, the applicant must submit any new evidence by way of affidavit. There is no requirement to have an oral hearing. Furthermore, the Minister shall be entitled to file responding affidavits if so desired. The Appeal Division will have to decide whether this second application constitutes an abuse of process or whether it should be dismissed by reason of res judicata. If the Appeal Division decides the evidence adduced does not constitute new evidence then it will be certainly open to it to dismiss the application on the ground that it is an abuse of process. If the evidence adduced is in fact new evidence then the Appeal Division can decide whether the issues raised are res judicata.
[13] The application for judicial review is allowed. The decision of the Appeal Division dated March 30, 2001, is quashed and the matter is returned for redetermination by a different panel in accordance with the reasons herein.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
December 10, 2001
Date: 20011210
Docket: IMM-1982-01
OTTAWA, ONTARIO, THIS 10TH DAY OF DECEMBER, 2001
Present: THE HONOURABLE MR. JUSTICE McKEOWN
BETWEEN:
AMRIK SINGH SEKHON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The decision of the Appeal Division dated March 30, 2001, is quashed and the matter is returned for redetermination by a different panel in accordance with the reasons herein.
"W.P. McKeown"
JUDGE
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1982-01
STYLE OF CAUSE: Amrik Singh Sekhon v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 27, 2001
REASONS FOR ORDER
AND ORDER OF: The Honourable Mr. Justice McKeown
DATED: December 10, 2001
APPEARANCES
Mr. Lorne Waldman FOR THE APPLICANT
Mr. Michael Butterfield FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Jackman, Waldman & Associates FOR THE APPLICANT Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada
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