Date: 20061102
Docket: IMM-1642-06
Citation: 2006
FC 1321
Ottawa, Ontario, November 2, 2006
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
AZIZUR RAHMAN
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, ch. 27 (IRPA) of a decision of the
Immigration Appeal Division (IAD) of the Immigration and Refugee Board denying
Mr. Azizur Rahman’s (Applicant) sponsorship appeal. In its decision, dated
February 27, 2006, the IAD dismissed the Applicant’s appeal without an oral
hearing on the ground that the case was res judicata.
[2]
The
IAD made two key findings. First, it found that all the preconditions for the
application of res judicata were met in the Applicant’s appeal. Second,
after considering the Applicant’s new submissions, the IAD found that the
Applicant failed to establish any special circumstance that would warrant the
non-application of the doctrine.
I. Background Proceedings and Facts
[3]
The
Applicant, a Canadian citizen, has made two applications to sponsor his wife,
Sultana Akter (Ms. Akter), as a member of the family class for permanent
residence in Canada. He married her
on September 29, 2001 in Bangladesh where she remains a
resident and citizen. This was the Applicant’s second marriage.
[4]
On
September 27, 2002, the Applicant filed his first sponsorship application. His
wife was interviewed by a visa officer in May 2003 in Bangladesh with an
interpreter present. In a decision, dated June 23, 2003, the visa officer
rejected the application on the basis that the spousal relationship between the
Applicant and Ms. Akter was not genuine and the marriage itself was not legally
valid under the laws of Bangladesh.
[5]
In
regards to the marriage’s authenticity, the officer expressed concern that Ms.
Akter could only recall a few details of the Applicant’s life in Canada, could provide
no photographs of the wedding, and was unable to explain discrepancies in the
events around the marriage. In regards to the validity of the marriage, the
officer noted that the Applicant was officially divorced from his first wife on
September 16, 2001, less than a month before marrying his current wife. This meant
that the Applicant’s second marriage violated the laws of Bangladesh which
stipulate that a divorced man must wait 90 days from giving notice of the
divorce before marrying again (Muslim Family Law Ordinance, 1961,
Ordinance No. VIII of 1961 Vide Pakistan Code 1966, Vol. XIV, p.
67). Pursuant to section 2 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (IRPR), a marriage
that took place outside Canada must be valid under both the laws of where
it took place and under Canadian law. Accordingly, the officer found that the marriage
between the Applicant and Ms. Akter failed to come within the definition of a
valid marriage under the IRPA.
[6]
The
Applicant appealed this decision before the IAD. After conducting a de novo
hearing, which took place on July 12, 2004, the IAD upheld the visa officer’s
decision. In its decision rendered August 9, 2004, the IAD found that the
Applicant failed to demonstrate that his marriage was genuine and that it was
not entered into primarily for the purpose of acquiring status or privilege
under the IRPA. The IAD conducted its own analysis into the question of
validity and, like the visa officer, determined that the marriage was not
legally valid.
[7]
On
October 17, 2004, the Applicant filed a second application to sponsor Ms. Akter.
In a decision dated March 28, 2005, a second visa officer rejected this
application after finding the marriage neither genuine nor valid. Further, the
officer held that the new evidence submitted by the Applicant in support of the
second application, which consisted primarily of telephone bills, was
insufficient to overcome the concerns surrounding the authenticity and validity
of the marriage.
[8]
On
June 3, 2005, the Applicant appealed this decision to the IAD. In October 2005,
the IAD asked both parties for submissions on whether res judicata applied
to the second appeal. The parties responded by filing submissions in November
2005. Along with written argument, the Applicant’s submissions included a
medical report from a physician in Bangladesh confirming Ms. Akter’s
pregnancy and a legal opinion from a senior Bangladeshi lawyer attesting to the
legal validity of the Applicant’s marriage. In a decision dated February 27,
2006, the IAD dismissed the appeal by applying res judicata. This is the
decision currently under judicial review.
II. Issues
(1) What is the
appropriate standard of review of the IAD’s res judicata analysis?
(2) Did the Immigration
Appeal Division err in concluding that the three conditions to apply the
doctrine of res judicata were satisfied?
(3) Was it
patently unreasonable for the Immigration Appeal Division to find that there
were no exceptional circumstances in the case warranting the non-application of
the principle of res judicata?
(4) Should the
Immigration Appeal Division have granted the Applicant an oral hearing?
III. Analysis
(1) What is the appropriate
standard of review of the IAD’s res judicata analysis?
[9]
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).
[10]
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.
[11]
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).
[12]
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).
[13]
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.
(2) Did the Immigration
Appeal Division err in concluding that the three conditions to apply the
doctrine of res judicata were satisfied?
[14]
This
issue was not dealt with in oral submissions by the Applicant, only in the
written submissions.
[15]
As
per the Supreme Court in Angle v. Minister of National Revenue, 1975 2
S.C.R. 248, at p. 254, adopted in Danyluk, above, at para. 25, the three
preconditions for the operation of issue estoppel are that:
(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.
[16]
The
Applicant concedes that the third requirement was met in this case, but asserts
that the first two criteria were not satisfied. He argues that the new facts
which arose since the first IAD decision rendered on August 9, 2004 preclude a
finding that the same question had been decided in the earlier proceedings. The
Applicant relies on the alleged new facts that between the August 9, 2004
decision (first IAD decision) and the February 27, 2006 dismissal of the
Applicant’s appeal (second IAD decision) his wife became pregnant, he had ongoing
contact with his wife and he provided her with continuing financial support. In
effect, the Applicant argues that these alleged new facts changed the nature of
the question raised in his second sponsorship application.
[17]
In
my opinion, the new facts alleged by the Applicant do not alter what the
Applicant would have to establish and the questions that the IAD would have to
answer in the second appeal. Pursuant to sections 2
and 4 of the IRPR a foreign national spouse who wants to
immigrate to Canada as a member of the family class must satisfy the officer
that his or her marriage: is genuine; was not entered into primarily for the purpose
of acquiring a privilege under the Act; and is legally valid in both
Canada and where it took place. Applicants have the onus of establishing these
requirements on a balance of probabilities (See Ni v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 290, at para. 11, Mohammed,
above, para. 22). This set of statutory criteria forms the basis of the questions
in sponsorship appeals before the IAD.
[18]
The
IAD is a court of competent jurisdiction with the authority to dispose of
sponsorship appeals (IRPA, s. 62). It has all the powers vested in a superior
court of record with respect to any matter necessary for the exercise of its
jurisdiction (IRPA, s. 174(1) and (2)). Following the first IAD proceeding,
where the Applicant provided documentary evidence and was granted an oral
hearing, the IAD answered the question of whether the Applicant’s relationship with
Ms. Akter was a bona fide and valid marriage and whether it was entered into
primarily to acquire a privilege under the IRPA. On a balance of probabilities,
the IAD found that the Applicant’s marriage was neither genuine, nor valid and
was most likely entered into primarily to help Ms. Akter immigrate to Canada. In essence,
this is an answer to the same questions raised by the Applicant’s second appeal.
[19]
The
second appeal met all the res judicata criteria: it raised the same
question, the prior decision was final, and the parties were identical. I
conclude that the three preconditions for the operation of the issue estoppel
were met in this case and the IAD’s decision in this regard was correct.
(3) Was it
patently unreasonable for the Immigration Appeal Division to find that there
were no exceptional circumstances in the case warranting the non-application of
the principle of res judicata?
[20]
The
concern under the second-step of issue estoppel analysis is whether the
operation of the doctrine would work an injustice. As stated by Justice Binnie in
Danyluk, above at paragraph 67:
The objective
is to ensure that the operation of issue estoppel promotes the orderly
administration of justice but not at the cost of real injustice in the
particular case.
[21]
Where
the three conditions have been satisfied, as in this case, the decision-maker
must then apply the doctrine unless some special circumstances warrant hearing
the matter on the merits. In determining whether such circumstances exist, it
is necessary to ask whether, taking into account all the circumstances, the
application of issue estoppel would work an injustice (Apotex Inc. v. Merck
& Co., [2003] 1 F.C. 242 (FCA) at paras. 29-30).
[22]
The
Applicant raises several circumstances, which he argues warranted the IAD
exercising its discretion not to apply res judicata in this case. First,
the Applicant argues that although the new facts already mentioned above (his
wife’s pregnancy, telephone calls to his wife, and ongoing financial support of
his wife) constituted fresh evidence of a genuine marriage, the IAD failed to
consider them. Second, he asserts that the application of res judicata
ignores the interests of his child and the fact that his counsel at the first
IAD hearing was incompetent.
[23]
I
will first deal with the allegation that the IAD ignored the fresh evidence put
forward by the Applicant, and then address the remaining arguments.
(a) Fresh
Evidence
[24]
The
IAD analyzed the question of “fresh” evidence according to the test set out by Chief
Justice McEachern (as he then was in the BCSC) in Saskatoon Credit Union v.
Central Park Enterprises Ltd., [1988] 47 D.L.R. (4th) 431, at
438 (BCSC), 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. The Saskatoon test was
cited with approval by Justice Shore in the more recent decision of Mohammed
v. Canada (Minister of
Citizenship and Immigration), above, at para. 21.
[25]
According
to the Certified Record before the IAD, the new documentary evidence submitted
by the Applicant in the second appeal included telephone bills starting May
2003 through September 2004 showing phone calls to Bangladesh, a legal opinion
from a senior Bangladeshi lawyer stating that the marriage is valid and
genuine, and a medical note attesting to the Applicant’s wife’s pregnancy. I
note that I was unable to find money transfer slips or any evidence that the
Applicant was sending money to Bangladesh.
[26]
Thus
far in these proceedings, the Applicant has been unable to persuade the
respective decision makers that his marriage was genuine or legally valid. The
IAD, in its first decision dated August 9, 2004, outlined the main reasons for
its conclusions at paragraph 3:
The marriage
is not valid legally as both spouses did not wait before the 90 day period had
expired following the pronouncement of the appellant’s divorce from his first
wife; the divorce affidavit is not acceptable as a legal document; no wedding
pictures were provided; no wedding ceremony; events (divorce, engagement,
marriage, departure of the appellant) happened in a very short period of time
and lack of knowledge of the appellant’s life in Canada.
[27]
At
paragraph 17 the IAD, in the same decision, expressed the following concerns:
The panel
notes that not only the appellant and the applicant have not seen each other [sic]
since October 5, 2001, but no evidence of money transfers, nor of meaningful
contact between spouses, such as telephone bills, letters, or greeting cards,
was produced at the hearing.
[28]
Although
the Applicant now alleges that the IAD failed, in the decision currently under
review, to consider the telephone bills or the medical note regarding the
Applicant’s wife’s pregnancy, this allegation is not correct. The IAD
considered both, but it found neither sufficient to offset the factors weighing
against the Applicant. At paragraph 12, the IAD wrote:
More than telephone calls or alleged
pregnancy are required [sic], in my view, to establish a genuine spousal
relationship not entered [into] for immigration purposes and to constitute
decisive fresh evidence of a genuine marital relationship.
[29]
The
telephone bills indicate fairly regular phone calls to Bangladesh, but on
their own they do not establish a genuine marriage: different Bangladeshi phone
numbers appear, but no explanation was provided in the written submissions. The
doctor’s note attesting to Ms. Akter’s pregnancy is also undermined by a lack
of corroborating evidence. Specifically, the Applicant submitted no evidence of
any trips to Bangladesh made by the
Applicant after the wedding in September 2001. Presumably the Applicant was
aware that the lack of evidence showing travel to Bangladesh concerned
the IAD as the IAD said so in paragraph 17 of its earlier decision. Further, the
mere existence of a child does not, on its own, establish the genuineness of a
relationship (Amarijit Singh v. Canada (Minister of
Citizenship and Immigration), 2006 FC 565 at para. 12). Without any
corroborating evidence showing that the child was the Applicant’s or that it
was even born, it was open to the IAD to find that the alleged pregnancy did
not establish a genuine relationship.
[30]
The
IAD’s second decision does not refer to the new legal opinion from a Bangladeshi
lawyer attesting to the validity of the Applicant’s marriage. While it would
have been better for the IAD to have turned its mind to these submissions in
its reasons, a tribunal need not mention every piece of evidence in its reasons
and is assumed to have weighed and considered all evidence before it, unless
the contrary is shown (Hassan v. Canada (Minister of Employment and
Immigration), (1992) 147 N.R. 317 (F.C.A.); Donkar v. Canada (Minister
of Citizenship and Immigration), [2006] F.C.J. No. 1375, at para. 22). In
any event, it is a moot point in this case because the lawyer’s opinion could
have reasonably been produced at the first appeal. Therefore, the opinion fails
to meet the threshold of decisive “fresh” evidence.
[31]
The
Applicant relies on Dhaliwal v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 1425, to support his argument
that the phone bills and the medical note establish evidence of an on-going genuine
relationship. In my view, Dhaliwal does not help the Applicant. First, Dhaliwal
was “an abuse of process” case, rather than one of res judicata.
Abuse of process requires the moving party to meet a stricter test: an
additional serious element is required and it must only be invoked in the
“clearest of cases” (Blencoe v. British Columbia (Human
Rights Commission), [2000] 2 S.C.R. 307). Second, Justice Campbell
in Dhaliwal, above at paragraph 9, expressed his opinion that the
IAD in that case had “ample, new, and relevant evidence which should have been
considered”. In my view, Dhaliwal can be distinguished from the present
circumstances where the Applicant has not supplied ample evidence and what he
did provide was considered by the IAD.
(b) Child’s Best
Interests and Incompetent Representation
[32]
The
Applicant raises two other arguments which were only dealt with in the written
submissions, both of which can be dealt with summarily. First, he says that the
IAD’s decision is not in the best interests of his child. For the reasons
outlined above, I am of the opinion that the Applicant has not met his
evidentiary burden of satisfying the IAD that the alleged child was his or even
that Ms. Akter gave birth to a child. Second, the Applicant alleges that his
representation at the first IAD hearing was incompetent. The Applicant has
failed to supply any evidence to support this allegation. The only evidence on
record is that the Applicant was represented by counsel at the first appeal. Without
more, I am unable to find that he has suffered an injustice because of his
counsel during his first hearing.
(4) Should the
Immigration Appeal Division have granted the Applicant an oral hearing?
[33]
The
Applicant also raises the procedural fairness argument that he should have
received an oral hearing on his second appeal. Allegations concerning procedural
fairness are always reviewed on a correctness standard (Sketchley v. Canada (Attorney
General),
[2005] F.C.J. No. 2056, at para. 46).
[34]
In
my view, the Applicant’s oral hearing allegation has no merit and cannot
succeed even on the highest standard of review for several reasons. First, while
it is true that the application of res judicata in effect denied the
Applicant an oral hearing on the merits, preventing litigants from
re-litigating questions that have already been settled by a court of competent
jurisdiction is what the doctrine is designed to achieve. By definition res
judicata is a pre-hearing matter that, if applied, precludes a full hearing.
(This potentially harsh result helps to explain why safeguards were built into
the second stage of the legal test for applying the doctrine). In Kaloti v.
Canada (Minister of Citizenship and Immigration), [2003] 3 C.F. 390
(F.C.A.), at paragraphs 9-10, the Federal Court of Appeal confirmed that the
IAD has the authority to summarily dismiss, i.e. without a full hearing on the
merits, an appeal when the appellant seeks to re-litigate on essentially the
same evidence. These are the circumstances that arose in this case. Therefore, the
IAD was not required to grant the Applicant an oral hearing and was entitled to
decide the appeal on the evidence as filed.
[35]
Second,
the IAD specifically notified the Applicant that his appeal may be decided on
the basis of written submissions and asked him to proceed accordingly. In a
letter dated October 14, 2005 the IAD invited the Applicant to make submissions
on the issue of res judicata and informed the Applicant that, if the
doctrine applied, his appeal may be subject to dismissal without an oral
hearing. The IAD added that it normally decides res judicata motions without
an oral hearing. In a bolded portion of the letter, the IAD again warned the
Applicant about the real possibility of there being no further hearing:
Please proceed on the
basis that there will be no oral hearing in this motion. Accordingly, you should
send to the Immigration Appeal Division and to the Minister’s counsel written
argument on whether or not the appeal should be dismissed by reason of the
application of res judicata. … In addition to written argument, the appellant
may provide affidavit evidence from the appellant and any other supporting
witnesses setting out the new evidence that is being tendered in the support of
the appeal.
[36]
Third,
the fresh evidence submitted by the applicant was so weak that it did not
trigger any concerns.
IV. Conclusion
[37]
In
summary, none of the circumstances raised by the Applicant in his second appeal
would necessarily compel the IAD to exercise its discretion not to apply issue
estoppel in this case. The IAD did not find the Applicant’s new evidence capable
of altering the findings of the first proceeding. Moreover, it found that
applying res judicata did not condone an improper process or work an
injustice on the Applicant. In my view, this was not an irrational decision.
[38]
The
parties were invited to submit a question for certification, but they declined.
JUDGMENT
THIS COURT ORDERS THAT:
-
The
application for judicial review is dismissed and no questions are certified.
“Simon
Noël”
FEDERAL
COURT
NAMES
OF COUNSEL AND SOLICITORS OF RECORD
DOCKET : IMM-1642-06
STYLE OF CAUSE : AZIZUR
RAHMAN v. MCI
PLACE OF
HEARING : Montréal
DATE OF
HEARING : 25-OCT-2006
REASONS FOR
JUDGMENT : The Honourable Mr. Justice Simon Noël
DATED : November
2, 2006
APPEARANCES :
Me Diane N. Doray,6855,
Ave de l’Épée, Suite 203, Mtl, Qc, H3N 2C7 Tel. : 514-274-9393
Fax. :514-274-5614
|
For the Applicant
|
Me Claudia
Gagnon, Justice Canada
Tel. :
514-496-9240
Fax. :
514-496-7876
|
For the Respondent
|
SOLICITORS
OF RECORD :
Me Pia
Zambelli,6855, Ave de l’Épée, Suite 203, Mtl, Qc, H3N 2C7 Tel. :
514-274-9393
Fax. :514-274-5614
|
For the Applicant
|
Me Claudia
Gagnon, Justice Canada
Tel. :
514-496-9240
Fax. :
514-496-7876
|
For the Respondent
|