Date: 20060614
Docket: IMM-5040-05
Citation: 2006
FC 757
Ottawa, Ontario,
June 14, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
WEI
MIN LI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Background
[1]
By
decision dated July 28, 2005, a member of the Immigration Appeal Division of
the Immigration and Refugee Board (the tribunal) dismissed the appeal of Wei
Min Li (the appellant), a permanent resident in Canada, from a decision dated
August 11, 2003 of a Visa Officer at the Canadian Embassy in Beijing, People’s
Republic of China, refusing his sponsored application for permanent residence
to Canada of his wife Gui hua Zeng, (the applicant).
[2]
The
tribunal based its finding on, in its own words, the doctrine of “res
judicata/ abuse of process.” It referred to a previous decision of
the IAD dated August 17, 2001 which had dismissed an appeal by Mr. Li from a
decision of another Visa Officer in Beijing
of a first-timed sponsored application for the grant of permanent resident
status in Canada to Gui hua Zeng whom he married in China in April of 1999.
[3]
In its
2001 decision, the IAD had concluded the marriage between Mr. Li and Ms. Zeng
contravened subsection 4(3) of the former Immigration Regulations, 1978
which provided “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”.
[4]
In support
of its conclusion in 2001, the IAD stated:
“Based on the evidence before it, the panel is of the
opinion that this is not a genuine marriage and that the principal
applicant [Ms. Zeng] entered into the marriage primarily for the purpose of
gaining admission into Canada and without the intention of
residing permanently with the appellant. The panel bases its decision on a
significant inconsistency in the evidence and the blatant misrepresentations of
the principal applicant [Ms. Zeng] at her interview and in the information she
provided in her application form. The panel does not accept the appellant’s
explanations as for why the principal applicant provided false information, and
it is of the opinion that this misrepresentation undermines the credibility of
the principal applicant and the claim that this is a genuine marriage.”
[Emphasis mine]
[5]
The
appellant did not seek judicial review of the IAD’s 2001 decision. Rather, Ms.
Zeng made a second sponsored application for permanent residence in Canada on April 1, 2002.
[6] The procedural history to the tribunal’s decision is somewhat
unusual and I summarize it:
1.
On November 5, 2004, the tribunal commenced a hearing on Mr. Li’s appeal. Mr.
Li was not represented by counsel at that hearing. The hearing was adjourned
to provide the Minister an opportunity to add an additional ground for refusal
after it was realized the stated ground expressed by the Visa Officer in his
August 2003 decision was the exclusionary provision of paragraph
117(9)(c)(ii)(b) of the New Immigration and Refugee Protection Regulations (the
Regulations), finding Ms. Zeng, the common-law partner of another person and
after the tribunal realized there had been a first sponsorship application in
1999/2000 which had been refused and unsuccessfully appealed to the IAD. Prior
to adjourning the tribunal received in evidence documentation submitted by Mr.
Li. That document of 93 pages was marked as exhibit A-1.
2.
On December 10, 2004, the Minister moved to add an additional ground for
refusing the sponsored application for permanent residence. The Minister
submitted that res judicata in the form of issue estoppel applied
relying on IAD Member, Stein’s reasoning in Vuong, Phuoc v. Minister
of Citizenship and Immigration (IAD) TA2-16835 of December 22, 2003. The
Minister also argued a second appeal from the refusal of the application for
permanent residence constituted an abuse of process. In sum, the Minister’s
counsel stated “the IAD should dismiss the appeal as it is an abuse of process
and the issues which would be tried were finally decided between the parties
and are res judicata.
3.
Mr. Li retained present counsel in January, 2005. On January 27, 2005, Mr.
Rotenberg wrote to the IAD indicating he would like a full-day hearing for a
variety of reasons not the least of which is the evidence of the sponsor and
that applicant and possibly others. He stated his experience in this kind of
case is that the examination and cross-examination often take up a good portion
of the morning, even more so if the Minister intended to renew her res
judicata argument.
4.
In advance of a hearing scheduled for May 9, 2005 counsel for the appellant
submitted on April 19, 2005 Mr. Li’s supplementary disclosure package consisting
of some fifty-five pages of documents including photographs of he and Ms. Zeng,
photocopies of stamped passport pages, airline tickets, boarding passes and bus
tickets, photocopies of phone bills and phone cards as well as a photocopy of
Ms. Zeng’s letter to the Visa Officer who had refused her second application.
In that letter, counsel for Mr. Li indicated that he had been provided with a
ninety-three page booklet of disclosure which had previously been filed as
exhibit A-1.
5.
Mr. Li, in his affidavit in support of his judicial review proceeding, stated
“my hearing was supposed to happen on May 9, 2005 but did not proceed because
another hearing which had started that morning in the same courtroom continued
into the afternoon.
6.
On May 26, 2005, counsel for Mr. Li filed the appellant’s written submissions
that neither res judicata nor abuse of process was appropriate in the
matter. At page 18 of the Certified Tribunal Record (CTR), counsel for Mr. Li
indicates what the nature of the evidence will be and I quote from paragraph
19:
1. That the
relationship is real and genuine as subsisted during these years and continues
to subsist and with two visits subsequent to the original decision, and is
supported by a plethora of actual phone calls although made by telephone cards
and those are recorded in the bills of Sprint and are set out in the
disclosure.
2.
The genuineness of the relationship is not only supported by the
communication itself and by the money transfer but by the relationship between
the son of the applicant, that son and the son of the sponsor and additionally
as well as more importantly, the sponsor whom that applicant’s son looks upon
in a fatherly manner. Therefore, I would add to the package of submissions to
go with natural justice concept that of the interest of the child.
[7] In those
submissions, counsel for Mr. Li stated additional facts and specifically
identified bad advice received from an Immigration Consultant. He submitted
that the lawyer Mr. Li retained for the 2001 IAD appeal had been negligent in
the manner in which he presented the appellant’s evidence.
[8] Counsel for Mr.
Li’s written submissions concluded by stating “my submission is therefore that res
judicata does not apply; that subsequent evidence, including the calling of
the applicant and her son, is appropriate and proper in this case and is not
“abuse of process” nor is the Minister “unjustly hounded.”
[9] Section 4 of the Regulations now in force is labelled “bad
faith” and provides the following:
|
Bad faith
4. For the purposes of these Regulations, a foreign
national shall not 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.
SOR/2004-167, s. 3(E).
|
Mauvaise foi
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.
DORS/2004-167, art. 3(A).
|
The
Tribunal’s Decision
[10] First, the tribunal quoted lengthy excerpts from the IAD’s previous
decision of August 17, 2001 ending with the conclusion referred to at paragraph
4 of these Reasons.
[11] Second, the
tribunal summarizes counsel for Mr. Li’s arguments as to whether res
judicata applied, namely, whether the three required conditions were met,
that is, the same question is at issue in the two cases; the judicial decision
that was said to create the estoppel was final; and the parties to the judicial
decision were the same persons as the parties to the proceeding in which the
estoppel is raised.
[12] Third, the tribunal canvassed the divergent decisions at the IAD as
to whether the same question was involved in an IAD decision which was decided
under subsection 4(3) of the former Immigration Regulations and one
before another IAD tribunal making a determination under the provision of
section 4 of the new Regulations.
[13] Fourth, the tribunal preferred the reasoning of Member Stein in Vuong,
supra, to the effect that while the provision of the old Regulations
were not the same as the provisions of the new Regulations, those
provisions did indeed decide the same question because their intent and the
nature of the inquiry are substantially the same. Member Stein wrote in Vuong,
supra, that both provisions aim to exclude spouses whose status as a spouse
is not based on the creation of a bona fide marital relationship, their
aim being to exclude spouses whose marriage was entered into primarily to
achieve an immigration purpose.
[14] Fifth, the tribunal stated the following with respect to the
appellant’s fresh evidence:
Now, the fresh
evidence that the appellant proffers amount to no more than the threadbare “the
Devil-made-me-do-it” defence, blaming these sundry falsehoods on an unqualified
immigration consultant and the conclusions of Member Whist on the alleged
incompetence of the appellant’s lawyer. Such evidence is hardly likely to be
decisive.
[15] Seventh,
the tribunal likely expressed its conclusions in the following manner:
As
counsel for the respondent points out, rather than see judicial review before
the Federal Court of that first IAD decision, the parties chose instead to make
a second application for a permanent resident visa. It is clear that having
been refused a second time, what the appellant now seeks to relitigate the
entire issue, hoping that a new panel of the IAD will come to a different
factual determination and find that the marriage in indeed based on true love.
It
would be difficult to conceive of a clearer case of abuse of process. Should
that practice be acceptable, this merry-go-round would be open to virtually
every appellant whose marriage was found not to be genuine, or “appeal by
attrition”as it was characterized in the IAD decision in Khan which
preceded the IAD decision in Kaloti.
Finally,
counsel for the appellant argues that res judicata is not applicable to
public statutes and notes that Kaloti preferred to rely on the doctrine
of abuse of process.
Again,
this argument takes the appellant down a blind alley. Whether or not the
Federal Court of Appeal in Kaloti intended to distance itself from its
earlier decision in O’Brien which affirmed that res judicata
operates in the sphere of public law, the appellant is still caught by abuse of
process doctrine that Kaloti advanced in dismissing the appeal. The
panel is not persuaded that Décary J.A., who authored the court’s reasons in
both O’Brien and Kaloti was signaling any such intention by the
court.
There
is a legitimate public policy interest in not having the same matter
reliltigated over and over by the same parties. To permit this appeal to go
forward, on the basis of the legal elements and the so-called “new” evidence
offered here, would be for the IAD to place its imprimatur on a process that,
to quote the Federal Court of Appeal in Kaloti would allow the
respondent to “be unjustly hounded given the earlier history of the matter.”
Due
to the panel’s finding on res judicata/abuse of process, it is
unnecessary for the panel to consider the other ground of refusal
[R117[9]c(ii)B].
Analysis
[16] Counsel for Mr. Li, in his
memorandum had raised three issues:
1. The doctrine of res judicata did not apply to public law statutes;
2. If the doctrine of res judicata did apply, were the requirements of issue
estoppel, a form of res judicata, met. Counsel conceded the
determination of this issue turned on the point whether the same question had
been decided in the 2001 IAD decision which, as noted, was based on subsection
4(3) of the former Regulations whereas the second appeal was to be heard
under section 4 of the new Regulations. He argued the question under
the two provisions were different and that the tribunal erred in so finding;
and
3. The tribunal erred in not considering the new documentation submitted by
the appellant without hearing it before making a finding of res judicata
or abuse of process. Counsel submitted the tribunal made its decision without
any evidentiary basis indicating that the sponsors’stepson was going to testify
that the clothing found in the closet during the site-visit was his and why he
had a picture of his father on the wall, in rebuttal to the inference taken by
the visa officer in the second application that his wife still cohabitated with
her ex-husband.
[17] At the hearing counsel for Mr. Li abandoned his first point that res
judicata did not apply to public law statutes.
[18] With respect to the second point, to which I apply the standard of
correctness as it involves a legal question, counsel for the applicant
appreciated his written argument was filed before Justice Shore issued his
decision in Mohammed v. Canada (Minister of Citizenship and Immigration) 2005
F.C. 1442.
[19] In Mohammed, supra, Justice Shore was reviewing a decision by the IAD which had dismissed a
second appeal on a second sponsorship application on the grounds of res
judicata. Justice
Shore discussed that principle in the context whether the same question was
decided by the IAD under the former Regulations as it would be under
section 4 of the new Regulations. He concluded that the question under
both provision was essentially the same and he quoted with approval IAD Member
Stein’s decision in Vuong, supra.
[20] I agree with Justice Shore’s reasons in Mohammed, supra, and would reject
counsel for the applicant’s argument.
[21] As to his last point which also commands a correctness standard
involving a legal question, Mr. Rotenberg argued the tribunal committed an
error by not hearing the appellant’s proposed evidence in order to determine
whether it constituted relevant and admissible new evidence fitting within the
exception to the rule that a party cannot relitigate an issue which was finally
decided between the same parties. He relies on Justice Nadon’s decision as a
member of the Federal Court Trial Division in Kular v Canada( Minister of Citizenship and
Immigration)[2000] F.C.J. No. 1393.
[22] Counsel for the appellant’s point is well-taken as appears from the
following paragraphs of Justice Nadon’s decision:
¶ 5 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.
¶ 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, 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.
¶ 8 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.
Consequently, the decision of the IAD rendered on September 20, 1999 will be set
aside and the matter will be returned for rehearing and redetermination by a
different panel.
[23] Counsel for the respondent argued the tribunal complied with Kular,
supra,. I agree with her.
[24] The tribunal had before it the appellant’s disclosure consisting of
95 pages of documents purporting to show the genuineness of the marriage which
had been received in evidence. In addition, counsel for Mr. Li made a
supplementary disclosure in April 2005 which had been previously described.
[25] Specifically, as noted, that supplementary disclosure, CTR page 146,
contains a letter dated May 25, 2005, from Ms. Zeng to the Visa Officer
explaining the picture of her ex-husband on the wall of her home and the
presence of male clothing.
[26] Moreover, in his written submission on res judicata, counsel
for the appellant discussed this evidence including the allegations of
negligence by his former lawyer appearing before the IAD and the fraudulent
advice received from the Immigration Consultant.
[27] Justice McKeown in Sekhon v. Canada (the Minister of Citizenship and Immigration) 2001
FCT No1354 dealt with the procedure to be followed by the IAD to allow a person
to present evidence before deciding whether it constitutes new evidence or
whether the appeal is an abuse of process. He agreed with the IAD’s ruling
that Kular did not mean the IAD must grant the respondent an oral
hearing but that he must be given an opportunity to present evidence. Justice
McKeown expressed himself as follows at paragraphs 11 and 12 of his decision as
follows:
¶ 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.
[28] The record shows the tribunal, in this case, complied with the
requirements of Sekhon in that submissions were made, the proposed new
evidence filed and commented upon.
ORDER
THIS COURT ORDERS that this application for judicial
review is dismissed. Counsel for the appellant proposed certified questions
which I decline to formulate. This case does not give rise to questions of
public importance. The decision turns on its unique facts.
“Francois
Lemieux”
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