Federal Court Decisions

Date: 20051027

Docket: IMM-1436-05

Citation: 2005 FC 1442

Ottawa, Ontario, October 27, 2005

PRESENT:     MR. JUSTICESHORE

BETWEEN:

AMINA MOHAMMED

Applicant

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]         "...[T]he plain meaning ... 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."[1]

NATURE OF THE PROCEEDING

[2]         This application for judicial review, brought pursuant to subsection 72(1) of the Immigration and Refugee Protection Act[2] (the Act), is addressed to a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the Appeal Division), dated February 18, 2005. In that decision, the Appeal Division, applying the principle of res judicata, dismissed the applicant's appeal.

FACTS

[3]         On March 29, 1997, the applicant, Ms. Amina Mohammed, was married in Canada to Mr. Ranvinder Singh Sandhu. Mr. Sandhu had arrived in Canada in 1993 and claimed refugee status, a claim that was denied in April 1995. After he had exercised all of his appeals, a removal order was issued against Mr. Sandhu on March 9, 1997, 20 days before he married Ms. Mohammed. Mr. Sandhu ultimately left Canada in October 1998 without informing the Canadian authorities. He subsequently returned illegally to Canada, in 1998, and worked without a permit. Mr. Sandhu is now living in the United States.

[4]         On October 17, 1997, Ms. Mohammed filed a sponsorship application in regard to Mr. Sandhu. On July 17, 1998, Mr. Sandhu filed his application for permanent residence.

[5]         On November 16, 1998, a visa officer rejected the applications on the ground that the marriage of Mr. Sandhu and Ms. Mohammed was not a bona fide marriage.

[6]         Ms. Mohammed appealed this decision to the Appeal Division. On November 10, 1999, after considering the evidence presented, the Appeal Division found that Ms. Mohammed had failed to demonstrate, on a balance of probabilities, that her marriage to Mr. Sandhu was bona fide, and consequently dismissed the appeal.

[7]         On July 23, 2001, Ms. Mohammed filed a second sponsorship application in regard to Mr. Sandhu. On May 3, 2002, Mr. Sandhu filed a second permanent residence application.

[8]         On February 14, 2003, a visa officer rejected the second applications for sponsorship and permanent residence on the ground that the marriage of Ms. Mohammed and Mr. Sandhu was not bona fide.

[9]         On March 10, 2003, Ms. Mohammed appealed this decision to the Appeal Division. On December 13, 2004, the Minister's representative filed a motion to dismiss this second appeal on the ground that there was res judicata. On February 18, 2005, the Appeal Division allowed the motion and dismissed the appeal on the ground that the case was res judicata. It is this latter decision that Ms. Mohammed is asking the Court to review.

IMPUGNED DECISION

[10]       After noting that the basic tests for res judicata (same parties, previous final decision and same issue) were met, the Appeal Division analyzed whether there were any special circumstances that would warrant the non-application of this doctrine of res judicata, and concluded that such circumstances were not present. The reasons of the Appeal Division will be analyzed in greater detail in the course of the Court's analysis.

ISSUES

[11]       1. Did the Appeal Division err in concluding, in the context of applying the principle of res judicata, that the question it had to determine, the bona fides of the marriage of Ms. Mohammed and Mr. Sandhu, had already been determined previously?

            2. Was it patently unreasonable for the Appeal Division to find that there were no exceptional circumstances in the case warranting the non-application of the principle of res judicata?

ANALYSIS

1.          Did the Appeal Division err in concluding, in the context of applying the principle of res judicata, that the question it had to determine, the bona fides of the marriage of Ms. Mohammed and Mr. Sandhu, had already been determined previously?

[12]       The doctrine of res judicata applies when three conditions are satisfied: the parties in the previous proceeding are the same as those in the second proceeding, the previous decision was final and the issue is the same (Angle v. Minister of National Revenue - M.N.R.,[3] Danyluk v. Ainsworth Technologies Inc.[4]). The decision-maker must then apply the doctrine of res judicata unless some special or particular circumstances warrant hearing the matter on the merits. In determining whether such circumstances exist, it is necessary to ask whether, taking into account all of the circumstances, application of the principle of res judicata would work an injustice (Apotex Inc. v. Merck & Co. (C.A.),[5] Danyluk[6]).

[13]       In the case at bar, the only one of the three conditions set out above that is problematic is that of the identity of the issues. Clearly, the parties are the same and the previous decision was final.[7] So the issue here is whether the Appeal Division erred in finding that the issue it was preparing to determine had already been decided. To determine this, the Court must compare the meaning of subsection 4(3) of the Immigration Regulations, 1978[8] (the old Regulations) with that of section 4 of the Immigration and Refugee Protection Regulations[9] (the new Regulations). Subsection 4(3) of the old Regulations provides:

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. (Emphasis added)

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. (La Cour souligne)

[14]       Section 4 of the new Regulations provides:

4.             For the purposes of these Regulations, no foreign national shall be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act. (Emphasis added)

4.             Pour l'application du présent règlement, l'étranger n'est pas considéré comme étant l'époux, le conjoint de fait, le partenaire conjugal ou l'enfant adoptif d'une personne si le mariage, la relation des conjoints de fait ou des partenaires conjugaux ou l'adoption n'est pas authentique et vise principalement l'acquisition d'un statut ou d'un privilège aux termes de la Loi. (La Cour souligne)

[15]       It was under the old Regulations that the first sponsorship and permanent residence applications were determined by a visa officer and by the Appeal Division, in 1998 and 1999 respectively. The Act and the new Regulations came into force in 2002. So it was under the new Regulations that the second sponsorship and permanent residence applications were determined by a visa officer and by the Appeal Division, in 2003 and 2005 respectively.

[16]       Because the issue here involves the appropriate interpretation of legislative provisions, the correctness of the decision on this question must be adopted as the standard of review. And when it comes to construing legislative provisions, it cannot be said that the Appeal Division has greater expertise than the Court. The question is one of law, and the Court owes no deference to the administrative tribunal.

[17]       Ms. Mohammed argues that the question of the application of section 4 of the new Regulations is a new question, and that in this sense a second appeal addressed for the first time to section 4 of the new Regulations is not affected by the doctrine of res judicata. She cites in support of her statements the decision of the Appeal Division in Hung Xuong (Roy) Lu v. Minister of Citizenship and Immigration.[10]

[18]       However, the Court subscribes to the interpretation provided by the Appeal Division in its decision of February 18, 2005, and supported by the decision of the Appeal Division in Phuoc Vuong v. Minister of Citizenship and Immigration.[11] Both subsection 4(3) of the old Regulations and section 4 of the new Regulations are intended to exclude spouses whose spousal status is not based on the creation of a bona fide marriage. The Court adopts the remarks of the Appeal Division in paragraph 16 of its decision:

...Both provisions aim to exclude spouses whose status as a spouse is not based on the creation of a bona fide marital relationship - one that is intended to be of substance and lasting duration. Both aim to exclude spouses whose marriage was entered into primarily to achieve an immigration purpose. The pre-condition for the creation of issue estoppel is not whether the legislative provisions on which the disposition is based are identical. Rather, the test is whether the same question has in essence been decided. This is a broader test and the overriding criterion is one of substance rather than form. Courts have held that it is the substance of the matter actually decided which should control whether res judicata applies, not the form of the judgment (AGF Canadian Equity Fund v. Transamerica Commercial Finance Corp. Canada (1993), 14 O.R. (3d) 161 (Gen. Div.) at 178. See also McIntosh v. Parent (1924), 55 O.L.R. 552 (C.A.) at 559).

2.          Was it patently unreasonable for the Appeal Division to find that there were no special or particular circumstances in the case warranting the non-application of the principle of res judicata?

[19]       Whether there are special or particular circumstances warranting the non-application of the res judicata principle is a purely factual question, which pertains therefore to the expertise of the administrative decision-maker. Consequently, the patently unreasonable nature of the error is the appropriate standard of review.

[20]       The Appeal Division found that there were no special circumstances since the fresh evidence adduced by Ms. Mohammed was not decisive and there was no evidence of fraud or misconduct that could give rise to questions of natural justice.

(i) Fresh evidence

[21]       The Appeal Division analyzed the fresh evidence question in terms of the test laid down in Saskatoon Credit Union,[12] which provides that the special circumstances include the discovery of decisive fresh evidence which could not have been adduced at the earlier proceeding by the exercise of reasonable diligence.

[22]       It is important to note that irrespective of the previous proceedings considered (decision of the visa officer in November 1998, decision of the Appeal Division in November 1999, decision of the visa officer in February 2003), it is clear that in none of them did either Ms. Mohammed or Mr. Sandhu adduce evidence from which it could be concluded that their marriage was bona fide. It was not until the second appeal to the Appeal Division (decision dated February 18, 2005) that Ms. Mohammed and Mr. Sandhu presented some documentation to demonstrate that their marriage was bona fide. The following excerpts from the three decisions preceding the appeal that is now the subject of judicial review are compelling. The decision of the visa officer, dated November 16, 1998, reads as follows:

Your interest in establishing yourself in Canada by any means possible therefore clearly predates your relationship with your wife. You were deemed deported on 9 March 1997 and got married on 29 March 1997. This suggests that the purpose of your marriage was to gain permanent status in Canada. Furthermore, information from our office in Canada informs that your wife's sponsorship application from within Canada was refused on 10 June 1997.

Second, you and your wife appear to have very little in common. You are of different cultures and different religions. You cannot speak French and your English ability which was tested at the interview, is very poor ... I therefore do not see how you and your wife are able to communicate in any depth, something which be unusual in a bona fide marriage.

The decision of the Appeal Division, dated November 10, 1999, reads as follows:

The appellant had the burden of proving that the applicant is not a person described in section 4(3) of the Regulations, and for that purpose she had, inter alia, to explain the contradictions and/or inconsistencies raised by the visa officer in the letter of refusal and computer notes.

...

Whereas the appellant testified at her appeal hearing that she had known the applicant for a year and a half before their marriage, the latter, at his interview with the immigration officer, said they had known each other for seven months.

...

On at least two occasions during her appeal hearing, the appellant said she had married the applicant because, among other things, he was law-abiding. However, the documentary evidence clearly shows that he arrived in Canada illegally in 1993 (with a forged passport), is currently living in Canada illegally and is also working here illegally. The appellant even admitted that the applicant used unlawful means to go to the United States and return to Canada; contradicting the applicant as to the means he had used to go to New York where his interview was to take place on November 3, 1998.

The appellant has not discharged her burden of proof on the balance of probabilities. Not only has she failed to explain contradictions mentioned by the visa officer, but on many occasions her statements have caused even more confusion and raised even more doubts.

Worse still, when the applicant was on the spot and available to testify, according to appellant's counsel, he failed to do so, thus depriving himself of the opportunity to establish his intentions at the time of his marriage to the appellant.

The decision of the visa officer, dated February 14, 2003, reads as follows:

I have determined that your marriage is not genuine or was entered into primarily for the purpose of acquiring any status or privilege under the Act because:

1. You married your sponsor, in March 1997. You stated you resided with your sponsor in Montreal until your departure from Canada in October 1999, you stated you and your wife purchased a home together and sold the property after a few years. You were unable to substantiate your claims of co-habitation with any physical evidence of any kind....

2.    Although you state you and your sponsor communicate by telephone, you were unable to provide any evidence to confirm this claim. You provided no substantiating evidence you and your sponsor have communicated since your marriage, either by telephone or in writing.

3. You stated you and your sponsor do not share assets, credit cards, life insurance. You have no photos together. You stated you have no cards, letters or correspondence of any kind.

Your reasons for not providing these documents is not credible, since our convocation letter clearly specifies these documents are to be submitted at interview and you had stated you had read the instructions found in our convocation package. (Emphasis added)

[23]       The "fresh" evidence presented in the second appeal included a joint tax return in the United States, a joint bank account, two life insurance policies (each spouse being the beneficiary of the other), some photographs of the couple, some long-distance phone bills, some documents in the name of both spouses in relation to the purchase of a house in Quebec, some letters of reference and proof of how long the couple had been together.

[24]       Some of these documents existed before the proceedings in the first appeal in 1999 and could therefore have been produced at that time if reasonable diligence had been exercised. Such was not the case. These documents, therefore, cannot be considered "decisive fresh evidence which could not have been adduced at the earlier proceeding by the exercise of reasonable diligence".

[25]       The rest of the documents, which in fact constitute the vast majority of the documents, date for the most part from 2002 to 2004 and are therefore "fresh" in the sense that they did not yet exist when the first appeal in 1999 was heard and determined. However, it cannot be said that they satisfy the legal test of "decisive fresh evidence which could not have been adduced at the earlier proceeding by the exercise of reasonable diligence" since if the marriage had been bona fide and not primarily for the purpose of acquiring any status or privilege under the Act, these documents would have existed earlier in the chronology of the marriage between Ms. Mohammed and Mr. Sandhu.

[26]       It is apparent from the reasons of the Appeal Division that it considered all of these documents, including the photographs, contrary to Ms. Mohammed's allegations. Moreover, the Appeal Division determined what weight to assign to this evidence. It states that "Both the appellant and the applicant submitted affidavits regarding their relationship. Evidence was also submitted regarding banking arrangements, ownership of property, life insurance, communications between the parties and pictures. The appellant also filed a number of letters of reference attesting to the relationship and good character of both the appellant and the applicant. A review of the documents filed by the appellant does not lead the Tribunal to conclude that exceptional circumstances exist which would fall within the exception to the doctrine of res judicata....The majority of the documents filed followed the decision of November 10, 1999...." The Appeal Division also states that "...with respect to the new evidence filed by the appellant, much of that is self-serving and does not lead the Tribunal to conclude that special circumstances exist which would bring the appeal within the exception of the doctrine of res judicata." It is clear, therefore, that these "fresh" documents were adduced in evidence in the second appeal in an attempt to support the claim of a genuine relationship and life together, a claim that Ms. Mohammed and Mr. Sandhu had simply not proved between 1997 and the introduction of the second appeal that led to the decision of February 2005. Consequently, the Appeal Division rightly characterized these documents as "self-serving" and held that this "fresh" evidence was not decisive, in light of all of the circumstances. The Appeal Division could therefore properly find that this evidence did not demonstrate that there were any special circumstances warranting the non-application of the principle of res judicata.

(ii) Natural justice

[27]       The Appeal Division concluded that Ms. Mohammed had not demonstrated that there had been abuse or misconduct raising issues of natural justice.

[28]       Ms. Mohammed submits that the Appeal Division erred in this regard since Mr. Sandhu's right to be heard was violated in the interview with the visa officer who made the decision in February 2003. The visa officer allegedly denied Mr. Sandhu an opportunity to adduce evidence. This contention, among others, is found at paragraph 34 of the Applicant's Record, Exhibit "M".

[29]       The Court agrees with the respondent that this contention is without foundation. It is clear from the decision of February 14, 2003, addressed to Mr. Sandhu that the interview convocation letter invited Mr. Sandhu to submit evidence to the visa officer and even indicated the type of documents to be presented. Furthermore, it is clear from the Computer Assisted Immigration Processing System notes that during the interview with the visa officer, Mr. Sandhu stated he had no evidence and at no time did he request further time in which to produce any. There was therefore no breach of natural justice.[13]

CONCLUSION

[30]       The Appeal Division was justified in finding that there was res judicata, that there were no special circumstances precluding the application of this principle and that the appeal therefore had to be dismissed. For these reasons, therefore, the Court answers in the negative to the two issues and dismisses this application for judicial review.

ORDER

THE COURT ORDERS that

1.          The application for judicial review be dismissed.

2.          No question be certified.         

"Michel M.J. Shore"

Judge

Certified true translation

Peter Douglas

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                            IMM-1436-05

STYLE OF CAUSE:                            AMINA MOHAMMED

                                                            v.

                                                            MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                      MONTRÉAL, QUEBEC

DATE OF HEARING:                        SEPTEMBER 29, 2005

REASONS FOR ORDER

AND ORDER:                                    MR. JUSTICE SHORE

DATE OF REASONS FOR

ORDER AND ORDER:                    OCTOBER 27, 2005

APPEARANCES:

Patrick-Claude Caron                            FOR THE APPLICANT

Marie-Claude Demers                           FOR THE RESPONDENT

SOLICITORS OF RECORD:

CARON AVOCATS                            FOR THE APPLICANT

Montréal, Quebec

JOHN H. SIMS Q.C.                           FOR THE RESPONDENT

Deputy Attorney General

of Canada