Date: 20061219
Docket: IMM-1541-06
Citation: 2006 FC 1495
BETWEEN:
Chy DEUK
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard J.
[1]
This is an application for judicial review of a decision
dated February 27, 2006, by the Immigration Appeal Division of the Immigration
and Refugee Board (IAD), refusing the sponsored application for permanent
residence in Canada submitted by the applicant’s
spouse.
[2]
In
December 2000, Chy Deuk (the applicant) met Linda Pen in Cambodia, and they
married in January 2001.
[3]
In
April 2001, the applicant applied to sponsor his spouse, but this application
was denied by B. Mischuk of the Canadian High Commission in Singapore in December
2001. Officer Mischuk found that the marriage had been entered into primarily
for the purpose of gaining admission into Canada, and not
with the intention of residing permanently with the other spouse.
[4]
On
March 18, 2003, the IAD dismissed the appeal of officer Mischuk’s decision,
concluding that the applicant had failed to establish that his spouse was not a
person who entered into the marriage primarily for the purpose of gaining
admission into Canada under subsection 4(3) of the Immigration
Regulations, 1978, SOR/78-172.
[5]
In
April 2004, another visa officer refused a new sponsorship application. At the
time of submitting this request for reconsideration, the applicant’s spouse
provided the visa officer with evidence of telephone communications, letters,
photos and transfers of money, as well as a copy of the plane ticket the
applicant had used for his trip to Cambodia in August 2003.
[6]
On
February 27, 2006, the IAD dismissed the appeal of this decision on the ground
of res judicata. This is an application for judicial review of that
decision.
* * * * * * *
* * * * *
[7]
This
proceeding raises the following issue: did the IAD err in finding that there
were no exceptional circumstances to justify not applying the doctrine of res
judicata?
[8]
The
applicant concedes that the three essential criteria for res judicata
are present. The decision by the IAD on the first appeal was final, the parties
are the same and the issue is the same. The applicant contends that even if all
the conditions for res judicata have been met in this case, the doctrine
does not apply where there are special circumstances (Danyluk v. Ainsworth
Technologies Inc., [2001] 2 S.C.R. 460 and Apotex Inc. v. Merck
& Co., [2003] 1 F.C. 242). The applicant also submits that the Supreme
Court of Canada held in Danyluk that the doctrine of res judicata
is not to be applied mechanically.
[9]
In
short, the applicant contends that there were special circumstances in this
case that warranted a review of the matter without applying res judicata.
[10] For his part,
the respondent submits that the three necessary requirements for
res judicata, as stated
by the Supreme Court of Canada in Danyluk, above, exist in this case.
[11] The
respondent does not deny that the filing of fresh evidence constitutes an
exception to res judicata, but maintains that this evidence must establish
the intention of the spouses at the time they entered into the marriage, not
their intention in 2006 (the respondent refers to Mohammed v. Minister of
Citizenship and Immigration, 2005 FC 1442 and Kaloti v. Minister of
Citizenship and Immigration, [2000] 3 F.C. 390).
[12] The
respondent argues that the IAD was entitled to apply res judicata based
on its finding that the applicant’s fresh evidence failed to establish the bona
fides of the January 2001 marriage.
* * * * * * *
* * * * *
[13] The Supreme
Court of Canada stated the following about res judicata in Danyluk,
above, at paragraph 25:
The preconditions to the
operation of issue estoppel were set out by Dickson J. in Angle, supra
at p. 254:
(1) that the same
question has been decided;
(2) that the
judicial decision which is said to create the estoppel was final; and
(3) that
the parties to the judicial decision or their privies were the same persons as
the parties to the proceedings in which the estoppel is raised or their
privies.
[14] The parties
in this proceeding agree that these three requirements have been met, and that
the filing of fresh evidence constitutes an exception to the doctrine of res
judicata.
[15] The standard
of review applicable to the IAD decision as to whether there were particular
circumstances justifying a departure from the res judicata doctrine is
patent unreasonableness. In Mohammed, supra, my colleague, Mr. Justice Shore,
stated:
[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.
[16] The facts in Mohammed
are similar to the facts in this proceeding: the applicant had submitted two
sponsorship applications, which were refused, and she appealed to the IAD
twice. The fresh evidence in Mohammed included photographs,
communications between the spouses, letters of reference and documents
pertaining to the spouses’ banking affairs. In Mohammed, the Court
determined that the IAD had properly characterized these documents as
“self-serving”, and that this fresh evidence was not determinative. The
evidence adduced in this case is of a similar nature.
[17] In fact, the
fresh evidence that the IAD considered consisted of photos, copies of money
transfers and telephone bills. In the first appeal before the IAD, there were
also copies of money transfers and telephone bills. The applicant alleges that
the IAD should have considered the fresh evidence. I do not agree. It is clear
from the decision that the IAD considered the evidence to be fresh evidence,
but found it not determinative, because it was insufficient to establish the bona
fides of the January 2001 marriage. In my view, it was not unreasonable
that the IAD found the fresh evidence not determinative in the circumstances.
[18] In addition,
the visa officer’s notes indicate that there was a significant difference in age
between the applicant and his spouse, and that visits between them were very
brief.
[19] Given that
the fresh evidence adduced by the applicant was not conclusive, and that there
are no exceptional circumstances to justify not applying the res judicata doctrine,
the applicant has failed to establish that the assessment of the facts in the
impugned decision is patently unreasonable. On the contrary, the decision
appears completely reasonable to me. In the circumstances, there has been no
breach of procedural fairness and no error of law in the application of res
judicata.
“Yvon
Pinard”
Ottawa,
Ontario
December
19, 2006
Mary
Jo Egan, LLB
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