Ottawa, Ontario, February 26, 2007
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the Appeal Division) dated January 16, 2006, wherein the Appeal Division determined that Abdul Hamid’s (the Applicant) sponsored application for permanent residence in Canada of his wife Marzahan Begum was refused on the grounds of res judicata.
[2] The Applicant married Marzahan Begum in Bangladesh in February 1996 and applied to sponsor the application for permanent residence of his spouse on May 15, 1996. On June 19, 1998, a visa officer refused the application for permanent residence pursuant to subsection 4(3) of the Immigration Regulations, 1978, SOR/78-172 (as amended) on the ground that the marriage was not bona fide but was entered into by the spouse primarily for the purpose of gaining admission to Canada. The Applicant appealed to the Appeal Division and on June 3, 1999, the Appeal Division confirmed the visa officer’s decision and dismissed the appeal for lack of jurisdiction because the Applicant’s spouse was not a member of the family class.
[3] On October 21, 1999, the Applicant filed a second application to sponsor his spouse for permanent residence. A visa officer refused this application for permanent residence on June 29, 2001, on the ground that the spouse had not presented any significant new information pertaining to the good faith of the marriage. The Applicant appealed this division to the Appeal Division. On July 26, 2002, the Appeal Division dismissed the appeal on the grounds of res judicata and abuse of process.
[4] On August 13, 2004, the Applicant submitted a third application to sponsor the application for permanent residence of his spouse. A visa officer refused this application on March 3, 2005 pursuant to section 4 of IRPA, on the ground that the marriage was not genuine, but was entered into by the spouse primarily for the purpose of acquiring a status of privilege under IRPA. The Applicant appealed this decision to the Appeal Division. On January 16, 2006, the Appeal Division dismissed the appeal on the ground of res judicata. It is this decision that is now the subject of this application for judicial review.
[5] The Applicant has travelled three times to Bangladesh to be with his spouse, the last visit being from January 6 to March 17, 2005. The Applicant also claims he has two children with his spouse: the first born on October 6, 2002 and the second born on September 10, 2005.
[6] The Appeal Division reviewed the visa officer’s decision, refusing the Applicant’s application, and found that:
In the case at bar, the new evidence proffered by the appellant consists of an alleged pregnancy of the applicant with photographs.
Does the new evidence tendered with the third sponsorship’s application constitute decisive fresh evidence; I find that it does not. Essentially, it gave the appellant the opportunity to prepare himself to be able to demonstrate that his marriage with the applicant is genuine. There is insufficient evidence provided nor are there sufficient explanations given as to why such a relationship was demonstrably lacking in the opinion of the IAD member, at the time of the hearing of the first and second appeal. More than an alleged pregnancy and alleged birth certificate by the Bangladeshi authorities are required, in my view, to establish a genuine spousal relationship not entered for immigration purposes and to constitute decisive fresh evidence of a genuine marital relationship. In addition, the fact of having an alleged child is not, in my view, conclusive of evidence per se of genuine relationship not entered into for immigration purposes.
(Applicant’s Record at p. 8)
[7] Justice Simon Noël in Rahman v. Canada (The Minister of Citizenship and Immigration), 2006 FC 1321 at paragraphs 9-13 aptly provides an analysis of the standard of review to be applied to an appeal division’s decision on whether the doctrine of res judicata applies:
The doctrine of res judicata seeks finality to judicial proceedings by requiring litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. Generally speaking, judicial decisions should be conclusive of the issues decided unless and until reversed on appeal (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 at paras. 18-19).
In Danyluk, above, the Supreme Court emphasized that applying issue estoppel, the branch of res judicata at issue in this judicial review, involves a two-step process. Justice Binnie, writing for a unanimous court, summarized the proper approach in paragraph 33:
The first step is to determine whether the moving party (in this case the respondent) has established the preconditions to the operation of issue estoppel set out by Dickson J. in Angle, supra. If successful, the court must determine whether, as a matter of discretion, issue estoppel ought to be applied.
Each step attracts a separate standard of review (Mohammed v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1786, at paras. 16 and 19-20).
Whether the preconditions to the operation of issue estoppel were met is a question of law. The issue affects the individual Applicant's procedural rights and the IAD has no greater expertise in applying the doctrine relative to the Court's expertise in this area of the law. These factors point toward a strict standard of review. Therefore, the appropriate standard of review of the IAD's res judicata analysis at the first stage is correctness (Mohammed, above at para. 16; Lageswaren v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1086, at para. 16; Al Yamani v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 345, at para. 18).
Conversely, the second-step involves an exercise of discretion and a weighing of relevant factors to determine whether special circumstances warrant the non-application of issue estoppel in this case. Discretionary factors attract a more deferential review (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paras. 34-37). Therefore, patent unreasonableness is the appropriate standard of review for the second-step. I agree with Justice Shore's analysis which he set out at para. 19 of his reasons in Mohammed, above:
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.
[8] The Supreme Court of Canada has adopted three preconditions for the operation of issue estoppel or res judicata (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 14, [2001] 2 S.C.R. 460; and Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 at 254):
(1) The same question has been decided in earlier proceedings;
(2) The judicial decision which is said to create the estoppel was final; and
(3) The parties to the judicial decision were the same persons as the parties to the proceedings in which the estoppel is raised.
[9] It was first submitted in the memorandum filed by the applicant in support of his leave application that only the third precondition for issue estoppel was met. However, applicant’s counsel was ready to concede at the hearing held before this Court that the first and second preconditions were also met, as in Rahman, above. Indeed, in Rahman, above, the Applicant provided allegedly new evidence of telephone bills, a legal opinion from a Bangladeshi lawyer stating that the marriage was valid and genuine, and a medical note attesting that the Applicant’s wife was pregnant. Justice Noël found at paragraph 17 that this new evidence did not “alter what the Applicant would have to establish and the questions that the [Appeal Division] [sic] would have to answer in the second appeal” as per Ni v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 290 at para. 11 and Mohammed v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1786 at para. 22.
[10] The second step under the issue estoppel analysis is whether the operation of the doctrine of res judicata would result in an injustice. The decision-maker must apply the doctrine unless some special circumstances warrant hearing the matter on the merits. The Appeal Division’s decision, in this regard, is not patently unreasonable.
[11] Here, the Appeal Division analyzed the fresh evidence question in terms of the test laid down in Saskatoon Credit Union v. Central Park Enterprises Ltd., [1988] 47 D.L.R. (4th) 431 (B.C.S.C.) wherein the Court held that special circumstances include the discovery of decisive fresh evidence that could not have been adduced at the earlier proceeding by the exercise of reasonable diligence (see Mohammed, above, at para.21.) It was entirely open to the Appeal Division to find that the documents submitted by the Applicant, even if they were “new” in the sense that they post-dated the last decisions of the Appeal Division, did not satisfy the criteria of “decisive fresh evidence which could not have been adduced at the earlier proceeding by the exercise of reasonable diligence”.
[12] In its reasons dated January 16, 2006, the Appeal Division was of the view that the evidence “gave the appellant the opportunity to prepare himself to be able to demonstrate that his marriage with the applicant is genuine”. Further, there was “insufficient evidence provided nor [were] there sufficient explanations given as to why such a relationship was demonstrably lacking in the opinion of the IAD member, at the time of the hearing of the first and second appeal”. It should be noted that on this point, when the Appeal Division rendered its decision on June 3, 1999, it found serious problems with the credibility of the Applicant and the bona fide nature of his marriage. In particular, the Appeal Division found that the “Applicant [had] tried to deceive the visa officer by filing forged telephone bills”.
[13] It was reasonably open to the Appeal Division to find that the new evidence was insufficient to rebut the Appeal Division’s earlier findings regarding the lack of genuineness of his marriage. Despite the Applicant’s claim that he and his spouse have had ongoing contact since the first refusal in 1998-1999, no significant new information was submitted to the visa officer in 2000 (in the form of telephone bills, correspondence, etc.), despite a request for such documents. No such documents were forwarded to the visa officer in 2004 either. It was only in 2005, when the matter came up for hearing before the Appeal Division that the Applicant submitted an affidavit from his in-laws, purporting to establish that he and his spouse have had ongoing contact since 1998-1999. The Applicant also alleged that his spouse had a second child in September 2005. Again, no concrete evidence was submitted of an “ongoing relationship” in the form of telephone bills, correspondence, etc. There is no question that the affidavit from the Applicant’s in-laws could have been submitted much earlier. Further, that affidavit states that, since 1998-1999, the Applicant visited his spouse on only two occasions, in 2002 and 2005, which is not significant to say the least. At best, that evidence can only be considered self-serving and was therefore given the weight that it deserved. As for the fact that the Applicant’s spouse gave birth to a second child in 2005, which is not contested by the Respondent, it should be remembered again that the Applicant’s marriage had earlier been found not to be genuine. Serious problems were highlighted by the Appeal Division that called into question the credibility of the Applicant on this issue.
[14] I note that in Singh v. Canada (Minister of Citizenship and Immigration), 2006 FC 565, an application for judicial review of an immigration officer’s decision rejecting the Applicant’s application in the “Spouse or common-law partner in Canada class” was brought before the Court. The immigration officer was not satisfied that the Applicant was in a genuine common-law relationship. The Court rejected the Application for judicial review on May 4, 2006. Although it was an error on the part of the immigration officer not to assess a doctor’s letter stating that the Applicant’s partner was pregnant from him, Madam Justice Snider held that such an error was not determinative, because the “mere existence of a child does not, on its own, establish the genuineness of the relationship” (at para.12). The Court’s reasoning in Singh, above, was applied in Rahman, above, at paragraph 29.
[15] Applicant’s counsel took considerable time at the hearing before this Court to underline the factual differences that exist between the facts of this case and the facts in Singh, above and Rahman, above. Respondent’s counsel concedes that the facts are not exactly the same but contends that this does not affect the legality of the Appeal Division decision in this case, which is based on sound principles and is not patently unreasonable in view of the particular circumstances of this case and the previous findings made by the Appeal Division in 1999 and 2002. I entirely agree with the Respondent in this regard.
[16] Neither can I accept Applicant’s proposition that “fresh” evidence of the birth of a second child suffices as special circumstances or that the Appeal Division acted in an arbitrary manner by not giving weight to a valid birth certificate. The fact that the Appeal Division used the words “alleged pregnancy” and “alleged birth certificate” does not come close to asserting here that the Appeal Division “challenged the validity of the birth certificate without adducing any evidence in support of its contention” as mentioned by Justice Dubé in Ramalingam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 10 at paragraph 6.
[17] I also find no merit in Applicant’s argument that the Appeal Division overlooked the poor or inadequate representation that was provided to the Applicant by his previous counsel at the time the application and the appeals were heard in 1999 and 2002. The Applicant also asserts that “to have denied the appeal of the applicant without a hearing would in fact destroy a genuine relationship and cause serious harm to two minor children” (Applicant’s memorandum, Application record at p. 32). I also dismiss this argument.
[18] I wish to make one last comment on the issue of a hearing. By definition, res judicata is a pre-hearing matter that, if applied, precludes a full hearing. In Kaloti v. Canada (Minister of Citizenship and Immigration), [2000] 3 C.F. 290 (F.C.A.) at paragraphs 9-10, the Federal Court of Appeal confirmed that the Appeal Division has the authority to summarily dismiss, i.e. without a full hearing on the merits, an appeal when an appellant seeks to re-litigate on essentially the same evidence. Again, it was reasonably open to the Appeal Division to dismiss the appeal on the ground that the new evidence tendered with the third sponsorship application did not constitute “decisive fresh evidence” and that there was insufficient evidence provided, as well as inadequate explanations given “as to why such a relationship was demonstrably lacking” in the opinion of the Appeal Division member at the time of the hearing of the first and second appeals.
[19] The present application must therefore fail. Counsel agree that this case raises no issue of general importance.
ORDER
THIS COURT ORDERS that
1. This application for judicial review is dismissed.
2. No question is certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-872-06
STYLE OF CAUSE: ABDUL HAMID v. MCI
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: February 19, 2007
REASONS FOR ORDER AND ORDER: MARTINEAU J.
APPEARANCES:
Me Viken G. Artinian FOR THE APPLICANT
Me François Joyal FOR THE RESPONDENT
SOLICITORS OF RECORD:
Viken G. Artinian FOR THE APPLICANT
Montreal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada