Date: 20121010
Docket: IMM-1211-12
Citation: 2012 FC 1182
Calgary, Alberta, October 10, 2012
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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BALJIT KAUR
DHALIWAL
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Applicant
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and
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THE MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The Applicant arrived in Canada from India in 1991. She is now a Canadian citizen.
[2]
The Applicant has applied five times to sponsor Jaswant
Singh Dhaliwal, as her spouse, to enter and reside in Canada. These applications have been rejected each time. This is the fifth such
application. The previous applications were rejected on the basis that the
marriage was not genuine. Judicial review was sought in respect of two of those
applications. Each was denied.
[3]
On this, the fifth application, the matter went before the
Immigration Refugee Board of Canada, Immigration Appeal Division (IAD). The
appeal was dismissed on the basis of res judicata issue estoppel.
[4]
In reviewing this decision, I will apply the standard of
correctness as far as the law is concerned. The IAD applied the correct three
part test:
a)
the same question has been decided;
b)
the judicial decision which is said to have created the
estoppel was final; and
c)
the parties to the judicial decision or their privies were
the same persons as the parties to the proceedings in which estoppel is raised
or their privies.
[5]
The IAD correctly stated and applied the law in this
regard.
[6]
There is, as the IAD correctly stated, an exception to the
doctrine if there are special circumstances that arise. In this case, the
special circumstances are that, since the last decision, the Applicant has
given birth to a child in Canada. She alleges that Dhaliwal is the father. This
allegation has not been contested.
[7]
The question is whether the birth of this child is decisive
new evidence capable of altering the results of the previous decisions. This
issue is to be reviewed on the standard of reasonableness. The IAD was aware
that a child had been born and did consider that matter. It found that the
birth of this child was not decisive new evidence which could be used to set
aside the application of the doctrine of estoppel.
[8]
The decision of the IAD in this regard is set out at
paragraph 17 of the Reasons:
[17] I find the elements of
res judicata are applicable in this case. All of the criteria are met, i.e.,
same question, same parties and final decision. The remaining question is
whether or not there exist any special circumstances that would bring the
appeal within the exception to the doctrine of res judicata. The Federal Court
has confirmed that the mere existence of a child does not, on its own,
establish the genuineness of a relationship.12 In this case the
issue of children, attempts to have children and knowledge of each other’s
circumstances in relation to having children were considered in previous
appeals and nevertheless the Member concluded the marriage was not genuine and
was entered primarily for the purpose of gaining status or privilege under the
Act. Therefore, I find the birth of a child is not decisive fresh evidence.
Based on the evidence before me, I find the appellant has not been established
there exist any special circumstances that would bring the appeal within the
exception to the doctrine of res judicata.
[9]
This Court has held that the birth of a child is not
conclusive evidence of the genuineness of a relationship (Antall v Canada
(MCI), 2008 FC 30 at paragraph 19; Rahman v Canada (MCI),
2006 FC 1321 at paragraph 29; Singh v Canada (MCI), 2006 FC 565
at paragraph 12; Hamid v Canada (MCI), 2007 FC 220 at
paragraph 14).
[10]
There is another case to consider, that of Justice Barnes
in Gill v Canada (MCI), 2010 FC 122, in which he wrote at paragraph 6
that the birth of a child would ordinarily be sufficient to dispel any
lingering concerns as to the genuineness of a marriage. The above cases were
apparently not drawn to his attention. In any event that case can be
distinguished in that in that case the birth of the child was raised on the
first application, whereas in the present case earlier applications had
considered a miscarriage and the assertions that the couple was trying to have
a family.
[11]
In the present case, the IAD did consider the fact of the
birth of a child but did not consider that to be evidence sufficiently decisive
so as to displace the doctrine of estoppel. In the present case at least two of
the previous decisions holding that the marriage was not genuine did consider
that, in one case, there was a miscarriage and, in another case, that the couple
were endeavouring to have a child. Nonetheless, in every case, the conclusion
was that the marriage was not genuine.
[12]
I find that the decision of the IAD was reasonable and
consistent with the jurisprudence aforesaid.
[13]
Accordingly, the application is dismissed without costs.
Neither counsel requested a certified question and I will not do so.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the Application is dismissed;
2.
no question is certified; and
3.
no Order as to costs.
"Roger
T. Hughes"
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