Date: 08091998
Docket: IMM-4932-97
BETWEEN:
YASPAL SINGH KALOTI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DUBÉ J:
[1] The applicant seeks to set aside the decision of the Appeal Division of the Immigration and Refugee Board ("Appeal Division") dated October 17, 1997, dismissing his appeal on the ground that it was res judicata.
[2] On August 26, 1990, the applicant filed an undertaking of assistance to sponsor the application for permanent residence of his fiancée whom he subsequently married in India in February 1993. On May 28, 1993, the visa officer refused his application pursuant to subsection 4(3) of the Immigration Regulations on the ground that the marriage was not bona fide but was entered into primarily for the purpose of gaining admission to Canada. The applicant appealed to the Appeal Division which confirmed the decision of the visa officer and dismissed the appeal for lack of jurisdiction because the applicant's spouse was not a member of the family class under subsection 4(3) of the Regulations1.
[3] In 1996, the applicant re-sponsored a new application for permanent residence for his wife which was denied by a visa officer. That decision led to the Appeal Division's second decision under attack.
[4] The central issue to be resolved is whether the Appeal Division was without jurisdiction on the basis of res judicata as the second appeal involved the same parties and the same issues which were already before the Appeal Division.
[5] In the Horbas2 decision, Strayer J., as he then was, stated the following:
| In subsection 4(3) of the Immigration Regulations, 1978 the visa officer is directed to have regard to two criteria: first, whether the marriage was entered into primarily for the purpose of gaining admission to Canada, and secondly whether the sponsored spouse has the intention of residing permanently with the other spouse...Admittedly the application of these criteria raise difficult questions of fact, the more so because they involve the assessment of the intention of the sponsored spouse... |
[6] The learned judge further added:
| It must be kept in mind that in order to reject such an application on the basis of this subsection, it must be found that there is both a marriage entered into by the sponsored spouse primarily for the purposes of immigration and lack of intention on his or her part to live permanently with the other spouse. |
[7] It follows that the two criteria are to be applied to the intention of a spouse at the time he or she entered into the marriage. The applicant submits that the same issues were not involved in the second appeal as a change of circumstances occurred and the question became whether or not she was a member of the family class at the time of the second application. He claims that the Appeal Division ought to have considered whether the intention of the applicant's spouse had changed since the first appeal.
[8] In my view, the plain meaning of paragraph 4(3) of the Regulations cannot be a "forward looking test", as submitted by the applicant. The test is whether or not the spouse in question "entered into the marriage primarily for the purpose of gaining admission to Canada...and not with the intention of residing permanently with the other spouse". Clearly, both criteria apply to the intention of the spouse at the time of the marriage. Thus, the matter became res judicata and the Appeal Division could not hear it a second time.
[9] At the hearing, I asked both parties to file submissions and research on whether or not res judicata has an application in public law.
[10] Counsel for the applicant submitted that the application of res judicata is not an absolute rule but is dependent on the nature of the tribunal that is making the decision and the context of the statute under which the body operates. He refers to the Canadian Encyclopedic Digests which states that the "extent to which res judicata and issue estoppel pertain in the administrative process is uncertain"3. The Digests goes on to state that "where a tribunal or agency has the authority to entertain a new application, it is not bound by its initial decision". He refers to Professor Ganz's article, Estoppel and Res Judicata in Administrative Law to the effect that "there is very little authority on whether the doctrine of res judicata, which applies to the decisions of the ordinary courts, is applicable to administrative authorities". He also refers to a Supreme Court of Canada decision in Grillas v. MMI4 which stated that the Immigration Appeal Board, the precursor of the present day Immigration Appeal Division, has the authority to re-open a previous decision on the basis that the Immigration Appeal Board retains a continuing equitable jurisdiction, and thus may hear additional evidence, notwithstanding the fact that the Board's decisions are considered final.
[11] On the other hand, counsel for the respondent referred to a Federal Court of Appeal decision, O'Brien v. Canada (A.G.) (1993)5 which confirmed that res judicata operates in the sphere of public law. The question arose whether a Public Service Commission Appeal Board would be estopped from reconsidering issues determined on an earlier appeal by the same Board, by virtue of res judicata. Décary J.A. wrote (at p. 316) that "This court has implicitly extended the applicability of the doctrine to issue estoppel, developed in the context of judicial proceedings, to proceedings before statutorily established administrative tribunals". The learned judge came to the conclusion that:
| The underlying rationale of these decisions, it seems to me, is that an appeal board is not competent, on a second appeal from a selection process, to rehear allegations which were explicitly or implicitly rejected in its decision on the first appeal. That is, the doctrine of issue estoppel applies to appeal board decisions. |
| (my emphasis) |
[12] 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.
[13] Again, in the instant matter, the plain meaning of subsection 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.
[14] In my view, a question of general importance ought to be certified and I would put it as follows:
| May an applicant re-apply for admission to Canada of his spouse as a member of the family class under paragraph 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? |
[15] The application for judicial review is dismissed.
O T T A W A, Ontario
September 8, 1998
Judge
__________________1 4. (3) The family class does not include a spouse who entered into the marraige primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permenently with the other spouse.
2 Horbas v. M.E.I. [1985] 2 F.C. 359.