Docket: IMM-5709-11
Citation: 2012 FC 539
Ottawa, Ontario, May 4, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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SARDA SAMI
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board,
dated 25 July 2011 (Decision), which declared the Applicant’s appeal from the
decision of a visa officer (Second Officer) at the visa post in Buffalo, New
York, was res judicata and declined to hear her appeal.
BACKGROUND
[2]
The
Applicant was born in Fiji and is a Canadian citizen. Her husband
(Dhindsa) is a citizen of India.
[3]
In
2005 the Applicant filed a sponsorship application to bring Dhindsa to Canada as a
permanent resident under the Family Class. An officer (First Officer) with
Citizenship and Immigration Canada (CIC) denied that application after he found
that Dhindsa and the Applicant (Couple) did not have a genuine marriage within
the meaning of section 4 of the Immigration and Refugee Protection
Regulations SOR/2002-227 (Regulations). The Applicant appealed that
decision to the IAD and on 29 August 2007, the IAD refused her appeal (First
Appeal). The Applicant did not apply for judicial review of that decision.
[4]
The
Applicant filed a second spousal sponsorship application on 2 March 2009 to
bring Dhindsa to Canada (Second Application). Prior to making a
decision on the file, CIC noted that concerns from the First Appeal about the
Couple’s differing religious backgrounds were still present in the Second
Application. CIC felt Dhindsa’s work as a Sikh priest was incongruous with his
marriage to the Applicant, who is Hindu. After interviewing Dhindsa on 2
September 2010, an immigration officer (Second Officer) at the Buffalo visa post
denied the Second Application, again finding that the Couple did not have a
genuine marriage within the meaning of the Regulations. The Applicant appealed
this refusal to the IAD.
[5]
Before
hearing the Applicant’s appeal of the Second Officer’s decision, the IAD
notified the Applicant on 17 January 2011 that it appeared her second appeal
was an attempt to relitigate issues which the IAD had already decided. The IAD
invited the Applicant to address this issue with written submissions, which she
provided on 14 February 2011.
[6]
In
her written submissions, the Applicant said she had fresh, decisive evidence
which she could not have presented at the First Appeal. She said she was
unrepresented at the First Appeal and thought at that time that she could not
call Dhindsa as a witness. She also said she had additional evidence of a
continuing relationship with Dhindsa and asked the IAD to exercise its
discretion to allow the Second Appeal to proceed on its merits. The Applicant
also said injustice would result from a refusal to hear the Second Appeal
because the Couple would have to live in separate countries. She also submitted
the evidence she intended to rely on to the IAD.
[7]
The
Respondent made submissions on this res judicata issue on 29 April 2011
and said the Applicant’s evidence dated from after the First Appeal and was not
evidence the Couple’s marriage was genuine when it was entered into. The
Respondent also said the Applicant’s failure to call Dhindsa on the First
Appeal was her choice. Dhindsa’s testimony could not be fresh evidence, given
that the Applicant could have called him as a witness during the First Appeal.
[8]
The
Applicant replied to the Respondent’s submissions on 17 May 2011, saying
evidence of a continuing relationship can be evidence of commitment at the time
of the marriage. She again asked the IAD to exercise its discretion to hear her
appeal.
[9]
The
IAD considered the parties’ submissions and, on 25 July 2011, refused to
exercise its jurisdiction to hear her appeal because the res judicata
principle applied. The IAD notified the Applicant of its Decision on 2 August
2011.
DECISION
UNDER REVIEW
[10]
The
IAD noted that Angle v Canada (Minister of National
Revenue – M.N.R.), [1975] 2 S.C.R. 248 establishes the following
three part test for the application of issue estoppel:
a.
The
same question has been decided;
b.
The
decision said to create the estoppel was final;
c.
The
parties to the previous decision or their privies are the same as the parties
to the proceeding in which the estoppel is raised.
[11]
The
IAD found all three elements were met in the instant case. The IAD’s decision
in the First Appeal was final and the Applicant did not ask for judicial review
of that decision. The parties to the Second Appeal were the same: the
Respondent and the Applicant. Finally, the same issue was in play in both
appeals: whether the Couple’s marriage is genuine.
[12]
The
RPD also noted that, in Danyluk v Ainsworth Technologies Inc. 2001 SCC
44, the Supreme Court of Canada found the underlying purpose of issue estoppel
is to balance the public interest in the finality of litigation with the public
interest in seeing justice done on the facts of the case. In Danyluk,
the Supreme Court of Canada also held that, to prevent injustice,
decision-makers have the discretion to hear matters in which issue estoppel would
otherwise apply. The IAD noted that several factors may be analysed with
respect to this discretion, including the wording of the decision-maker’s
enabling statute, procedural safeguards available to the parties, availability
of an appeal, the decision maker’s expertise, circumstances leading to the
previous proceedings, and any potential injustice.
Application of Factors
[13]
Having
found the three preconditions for issue estoppel existed in the Applicant’s
case, the IAD turned to whether it should exercise its discretion to hear her
appeal anyway. The IAD noted that it has in the past recognized that new
information is sufficient to overcome issue estoppel and that there is no
appeal from IAD decisions, although the Applicant could seek judicial review in
this Court. It also found that the IAD is a court of competent jurisdiction
with expertise in immigration matters, including sponsorship appeals. It
further found the circumstances which led to the Second Appeal were the same as
those leading up to the First Appeal, with the only significant change being
the passage of time.
[14]
The
IAD noted that the Applicant, in her written submissions on the res judicata
issue, said “there is fresh evidence that supports the finding that [her]
marriage to [Dhindsa] is genuine and that this evidence could not have been
adduced at the earlier proceeding by the exercise of reasonable diligence.” To
evaluate whether it should exercise its discretion to hear the Second Appeal,
the IAD determined that it would focus on the potential injustice to the
Applicant if it did not. In particular, the IAD focussed on whether new
evidence existed, and whether an injustice would occur if that evidence were
not considered.
New
Evidence and Injustice
[15]
To
asses whether the evidence the Applicant submitted was new, the IAD applied the
test the Supreme Court of Canada set out in Public School Boards’ Assn. of
Alberta v Alberta (Attorney General), [2000] 1 S.C.R. 44. The Supreme
Court of Canada said new evidence should not be admitted if it could have been
adduced in the first proceeding with due diligence; the evidence must bear on a
decisive or potentially decisive issue; the evidence must be credible; and, if
accepted, the evidence would have affected the result of the previous
proceeding.
[16]
The
IAD noted the Applicant said the new evidence she submitted showed the Couple
had a continuing relationship, which established that their commitment when
they got married was genuine. The IAD also noted that, in the First Appeal, it
found the Applicant did not rebut the First Officer’s concerns and that her
testimony raised additional concerns. The Second Officer found that the same
root concerns the IAD expressed in the First Appeal still existed. In the
refusal letter, the Second Officer found that he was not satisfied the
Applicant had addressed his concerns about the genuineness of the Couple’s
marriage.
[17]
The
IAD noted the Applicant’s assertion she did not know she could call Dhindsa as
a witness at the First Appeal because she was self-represented at that time.
The IAD found that self-representation and not calling Dhindsa were the
Applicant’s own choices. The IAD notified the Applicant before the First Appeal
that she could be represented by counsel and found the fact she had since
retained counsel and wished to call Dhindsa as a witness in the Second Appeal
did not amount to fresh evidence. Further, the IAD found that the Applicant
could have anticipated the concerns it raised in the First Appeal.
[18]
The
IAD also found the Applicant understood at the first hearing that she could
call Dhindsa as a witness. The Applicant was a party to her marriage, so she
must have understood that Dhindsa was just as well situated as she was to give
evidence on the genuineness of their marriage. Further, the onus was on her at that
time to establish that her marriage was genuine. Nothing had stood in the way
of her calling Dhindsa to testify.
[19]
The
IAD further found injustice would not result if the Applicant were not able to
call Dhindsa as a witness in a second proceeding. The Applicant’s failure to
call Dhindsa was a choice she had made, and any evidence he could provide would
not be determinative of her appeal. The IAD said that Mann v Canada (Minister of
Citizenship and Immigration), [2005] IADD No 198 shows that calling an
applicant is not always necessary, so it would not be necessary for the IAD to
hear from Dhindsa.
[20]
The
IAD also reviewed evidence submitted by the Applicant on the Second Appeal,
which she said showed her marriage is genuine. The IAD found it considered
similar evidence in the First Appeal, and that this evidence was not decisive
of whether the Couple’s marriage is genuine. The IAD also found photographs the
Applicant submitted on the Second Appeal were not decisive evidence that the
marriage is genuine. Money transfer receipts the Applicant submitted were also
not decisive of the genuineness of the Couple’s marriage.
[21]
Although
the Applicant had provided telephone bills to the IAD on the Second Appeal, it
found this was more evidence of what was before it in the First Appeal, so it
could not add to what the IAD had already considered. This evidence was not new
and not decisive of the issue at hand. The IAD also noted that, in the First
Appeal, it had identified credibility concerns related to the same evidence; on
the Second Appeal, it found the additional evidence did not address these
concerns.
Conclusion
[22]
The
IAD found that the evidence the Applicant submitted on the Second Appeal did
not amount to decisive new evidence that the Couple had lived together, intended
to live together permanently, or had a deeper relationship. The additional
evidence did not address the concerns the IAD raised in the First Appeal about
the Couple’s intentions when they were married. The First Appeal failed because
the Couple did not address these concerns, even though they had a fair
opportunity to do so.
[23]
The
IAD found the three part test for res judicata was established and,
because the additional evidence the Applicant submitted was not new or
decisive, it was not in the interests of justice to exercise its discretion to
hear the Second Appeal. The issues related to the genuineness of the Couple’s
marriage were adequately considered in the First Appeal.
[24]
The
IAD declined jurisdiction and dismissed the Second Appeal.
ISSUES
[25]
The
Applicant raises the following issues in this case:
a.
Whether
the IAD erred in finding she had not provided fresh evidence;
b.
Whether
the IAD failed to consider its discretion to hear the Second Appeal, even
though the test for res judicata was made out;
c.
Whether
the IAD’s reasons are adequate.
STANDARD
OF REVIEW
[26]
The
Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9 held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[27]
The
first issue the Applicant raises – whether the evidence she adduced on the
Second Appeal was new – is a question in which the factual and legal issues are
inextricably intertwined. The IAD was called on to determine whether the evidence
the Applicant presented was relevant to or decisive of the issue in the Second
Appeal. In Dunsmuir, above, at paragraph 51, the Supreme Court of Canada
held that questions like this are to be evaluated on the reasonableness
standard (see also Smith v Alliance Pipeline 2011 SCC 7 at paragraph
26). The standard of review on the first issue is reasonableness.
[28]
On
the third issue, the Supreme Court of Canada has recently held that the
adequacy of reasons is not a stand-alone basis for quashing a decision (see Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) 2011 SCC 62 at paragraph 14).
Rather, “the reasons must be read together with the outcome and serve the
purpose of showing whether the result falls within a range of possible
outcomes.” The IAD’s reasons in this case must therefore be analysed along with
the reasonableness of the Decision as a whole.
[29]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[30]
The
standard of review with respect to the second issue in this case is
correctness. In Danyluk, above, the Supreme Court of Canada held at
paragraph 66 “The appellant is entitled at some stage to appropriate
consideration of the discretionary factors [in the res judicata analysis].”
Where the three pre-conditions for res judicata exist, the decision
maker is then obligated to consider whether to exercise discretion to hear the
matter anyway. The reviewing Court is called on to analyse whether the
decision-maker complied with this obligation and will not show deference to the
decision-maker’s reasoning (Dunsmuir, at paragraph 50).
STATUTORY
PROVISIONS
[31]
The
following provisions of the Act are applicable in this proceeding:
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12. (1) A foreign national may be selected
as a member of the family class on the basis of their relationship as the spouse,
common-law partner, child, parent or other prescribed family member of a
Canadian citizen or permanent resident.
[…]
63. (1) A person who has filed in the
prescribed manner an application to sponsor a foreign national as a member of
the family class may appeal to the Immigration Appeal Division against a
decision not to issue the foreign national a permanent resident visa.
[…]
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12. (1) La
sélection des étrangers de la catégorie « regroupement familial » se fait en
fonction de la relation qu’ils ont avec un citoyen canadien ou un résident
permanent, à titre d’époux, de conjoint de fait, d’enfant ou de
père ou mère ou à
titre d’autre membre de la famille prévu par règlement.
[…]
63. (1)
Quiconque a déposé, conformément au règlement, une demande de parrainage au
titre du regroupement familial peut interjeter appel du refus de délivrer le
visa de résident permanent.
[…]
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[32]
The
following provisions of the Regulations are also applicable in this proceeding:
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4. (1) For the purposes of these
Regulations, a foreign national shall not be considered a spouse, a
common-law partner or a conjugal partner of a person if the marriage,
common-law partnership or conjugal partnership
(a) was entered into primarily for the purpose of
acquiring any status or privilege under the Act; or
(b) is not genuine.
[…]
116. For the purposes of subsection 12(1) of
the Act, the family class is hereby prescribed as a class of persons who may
become permanent residents on the basis of the requirements of this Division.
117. (1) A foreign national is a member of
the family class if, with respect to a sponsor, the foreign national is
(a) the sponsor's spouse,
common-law partner or conjugal partner
[…]
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4. (1) Pour
l’application du présent règlement, l’étranger n’est pas considéré comme
étant l’époux, le conjoint de fait ou le partenaire conjugal d’une personne
si le mariage ou la relation des conjoints de fait
ou des partenaires
conjugaux, selon le cas :
a) visait
principalement l’acquisition d’un statut ou d’un privilège sous le régime
de la Loi;
b) n’est
pas authentique.
[…]
116. Pour
l’application du paragraphe 12(1) de la Loi, la catégorie du regroupement
familial est une catégorie réglementaire de personnes qui peuvent devenir
résidents permanents sur le fondement des exigences prévues à la présente
section.
117. (1)
Appartiennent à la catégorie du regroupement familial du fait de la relation
qu’ils ont avec le
répondant les étrangers suivants :
a) son
époux, conjoint de fait ou partenaire conjugal;
[…]
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ARGUMENTS
The Applicant
The
IAD Unreasonably Found no new Evidence
[33]
The
Applicant says the IAD unreasonably concluded the evidence she submitted to
support the Second Appeal was not new or decisive. Although the IAD analysed
each type of evidence she submitted, it did not asses whether, in its totality,
the evidence she submitted showed the Couple’s marriage was genuine.
[34]
She
says her new evidence shows her marriage was actually genuine. She submitted
evidence of a recent trip to India, which she says speaks to the IAD’s
concern in the First Appeal that the Couple’s different backgrounds cast doubt
on the genuineness of their marriage.
[35]
In
Singh v Canada (Minister of Citizenship and Immigration), [2007]
IADD No 728, the IAD held, at paragraphs 33 and 34, that
The
appellant and applicant have been married since April 2002. Their marriage has
endured over five years despite two refusal [sic] and two
appeals. All the indicia typically considered by the IAD in assessing the
genuineness of a marriage are present and to a greater and lesser degree the indicia are positive. The
evidence speaks to a relationship entered into on the basis of a traditional
arranged marriage. The respective families were involved in the arrangement
which, while compact in time, does not suggest an attempt to hide the marriage.
The evidence considered today was found credible and it answered the concerns
raised by the visa officer.
When considered in its totality the evidence does not support a
conclusion that the marriage was entered into in bad faith. The panel finds
that on a balance of probabilities the marriage is genuine and not entered into
primarily to facilitate the applicant's immigration to Canada.
[36]
Singh teaches that
continuing contact between the parties to a marriage can constitute fresh
evidence that marriage is genuine. The Couple’s marriage has lasted longer than
the marriage under scrutiny in Singh, so the IAD should have found the
length of their marriage was new evidence on the Second Appeal. The length of
the Couple’s marriage was part of the totality of the evidence which
established their marriage was genuine.
[37]
The
Applicant submitted substantial evidence to show her commitment to Dhindsa
since the IAD rejected the First Appeal. Dhindsa moved to the United States of
America (USA) to be closer to the Applicant, and she took a long trip to India in 2011 to
be with him. Both of these events show their continued commitment, but the IAD
found these did not constitute new evidence. The Applicant relies on Podai v
Canada (Minister of Citizenship and Immigration), [2009] IADD No
291, noting that the IAD in that case found evidence of a trip and spending
time together was sufficient to overcome the application of res judicata.
She says her case should have been decided in the same way as Podai. The
IAD also rejected evidence of phone calls and the Applicant’s trips to see
Dhindsa because she submitted the same type of evidence at the First Appeal.
However, the Applicant points to Brij v Canada (Minister of Citizenship and
Immigration), [2009] IADD No 798, where the IAD accepted evidence of the
same type as had been adduced in a previous appeal because the evidence was
relevant to the genuineness of the marriage under scrutiny in that case.
[38]
The
Applicant points out that she was unrepresented at the First Appeal and says
she did not understand her rights at that time. This prevented her from calling
Dhindsa as a witness. The Applicant points to Abdollahi v Canada (Minister of
Citizenship and Immigration), [2009] IADD No 692, which the IAD
distinguished in the Decision. The Applicant is in a similar situation to Abdollahi
because she too has submitted new and decisive evidence.
The IAD did not Consider whether Special
Circumstances Existed
[39]
The
IAD’s analysis ended with a finding that res judicata applied without
any analysis of whether special circumstances existed to justify exercising the
discretion to hear the Second Appeal. She points to Prasad v Canada (Minister of
Citizenship and Immigration) IAD File VA6-02979; 2007 CanLII 67704, which she says establishes
the IAD must consider its discretion to hear an appeal when the three
pre-conditions for issue estoppel are met. She points to Sekhon v Canada (Minister of
Citizenship and Immigration), [2003] IADD No 746 for the proposition
that potential injustice is a factor that can lead the IAD to exercise its
discretion to hear an appeal where res judicata would otherwise apply.
[40]
Rather
than considering whether to exercise its discretion to hear the Second Appeal,
the IAD conflated this issue with the three part test for issue estoppel. The
IAD wrote that
The Panel will focus on whether or not
there is a potential for injustice should the IAD not hear the appeal of the
second refusal to grant [Dhindsa] a permanent resident visa. In particular,
whether or not there is ‘new’ evidence which meets the test for such evidences
[sic] which would establish an exception to the application of res
judicata to this matter.
[41]
The
circumstances of the case suggest the IAD should have exercised its discretion
to hear the Second Appeal. The Applicant points to the fact that the parties
are an individual and the Crown and says injustice will result from the IAD’s
refusal to hear her appeal because the Couple will not be able to live together
in the same country. The Applicant cannot move to India to live with Dhindsa
because she has health problems when she is there and does not have status in India. The
interests the IAD was called on to balance are the state’s interest in the
administration of justice against the Applicant’s interest in being united with
her spouse.
[42]
Although
the IAD considered the Applicant’s submission that the Couple would not be able
to live together, it noted that family reunification is not guaranteed under
the Act. However, family reunification is an important objective of the Act
under paragraph 3(1)(d). Preventing family reunification is a potential
injustice which the IAD should address when considering its discretion to hear
cases. The IAD should have given the Couple’s reunification significant weight
when it considered whether to hear the Second Appeal.
The
Respondent
[43]
The
Respondent says the IAD reasonably exercised its discretion not to hear the
Second Appeal. It examined the evidence the Applicant submitted and concluded
it did not address the concerns raised in the First Appeal. The Applicant
simply disagrees with the IAD’s conclusion, so the Court should not intervene.
Preconditions
for Res Judicata met
[44]
The
IAD reasonably found the three pre-conditions, established in Angle,
above, were met in the Second Appeal. The same question was at issue in both
the First and Second Appeals: whether the Couple’s marriage is genuine. The
parties were also the same, and the First Appeal was a final determination of
this issue. The Respondent says Danyluk, above, establishes that where
the three preconditions are met, res judicata must apply unless special
circumstances exist for the decision maker to exercise the discretion to hear a
case on its merits.
Special
Circumstances Reasonably Assessed
[45]
The
IAD reviewed the availability of an exception to the application of res
judicata and noted some of the factors decision-makers may take into
account when deciding whether to exercise their discretion to hear a case on
its merits. When it examined
whether the Applicant had submitted new evidence, the IAD considered whether
this would lead to injustice if the Second Appeal were not heard. In examining
whether the evidence was new, the IAD reasonably applied the test for new
evidence articulated by the Supreme Court of Canada in Public School Boards’
Assn., above. All the Applicant has done in her arguments to the Court is
to reiterate the arguments she raised before the IAD; she has not demonstrated
that the IAD’s exercise of discretion was unreasonable.
Evidence
Not New
[46]
Although
the Applicant has argued that she put forward fresh, new evidence about her
relationship with Dhindsa, the IAD found this was not the case. It found the
evidence she submitted was before the IAD on the First Appeal, that the
evidence was not determinative, and that the evidence did not address its
concerns. The IAD also held that it had fully canvassed the genuineness of the
Couple’s marriage on the First Appeal. Although the Applicant wished to call
Dhindsa on the Second Appeal and said she was not aware he could have testified
at the First Appeal, the IAD found the onus was on her to establish her case
and it was her decision not to have him testify at that time. This was a
reasonable conclusion for the IAD to draw.
[47]
The
IAD also reasonably concluded that Dhindsa’s failure to testify was a defect in
the Applicant’s presentation of her case on the First Appeal and that his
testimony did not constitute new evidence on the Second Appeal. The IAD noted
it had not drawn a negative inference from Dhindsa’s failure to testify at the
First Appeal, and found that no prejudice to the Applicant would result if he
were not permitted to testify again. The IAD also reasonably rejected the
Applicant’s assertion she did not know she could have counsel. It pointed to
the Notice of Appeal sent to her by the IAD which specifically said she had the
right to counsel on the First Appeal.
[48]
The
IAD also reasonably concluded that the Applicant’s evidence of their continuing
relationship was not new evidence the Couple intended to live together
permanently. The IAD was not bound to follow its previous decisions which the
Applicant has cited, because these cases do not determine whether the evidence
submitted in this case was new or decisive. The task before the Court is not to
compare the evidence in this case with the evidence submitted in other cases;
the Court is to determine whether the IAD’s conclusion in this case was
reasonable on the record before it.
[49]
The
Respondent says that Anttal v Canada (Minister of
Citizenship and Immigration) 2008 FC 30 is similar to the instant case.
Justice Judith Snider held at paragraph 19 that
[…] the IAD’s reasons for refusing the first appeal involved
findings which were not addressed by the Applicant’s new evidence. Accordingly,
it was, at the very least, open to the IAD in the Second IAD Appeal to conclude
that there was no decisive fresh evidence demonstrably capable of altering the
outcome of the earlier finding. I do not find that the decision by the IAD in
the Second IAD Appeal not to find that there were circumstances which warranted
the hearing of the case on the merits is patently unreasonable.
[50]
The
IAD’s finding, which the Court upheld in Anttal, is similar to the
finding the Applicant challenges in this case. The result should be the same.
[51]
The
IAD based its decision on an analysis of the evidence as a whole:
Significantly, all of this evidence does
not speak to the first Panel’s concerns on the intent of the parties to the
marriage, including the appellant’s lack of knowledge and disinterest in
[Dhindsa’s] family and her lack of knowledge about his friends.
[52]
The
IAD was not bound to refer to or explain why it did not accept every piece of
evidence the Applicant submitted. The IAD considered all the evidence, but this
was not enough to convince it that the Couple’s marriage was genuine. The
Applicant simply disagrees with the way the IAD weighed the evidence before it,
which is not subject to judicial review.
Other
Circumstances Considered
[53]
In
addition to considering whether the Applicant’s evidence was new, the IAD also
considered the Applicant’s assertion that the couple could only live together
in Canada. The IAD
considered this aspect of her submissions, but concluded that it was not in the
interests of justice for it to hear the Second Appeal.
The
Applicant’s Reply
[54]
The
Applicant says her argument does not deal with how the IAD weighed the evidence
before it. Rather, she says the IAD did not consider the evidence as whole even
though it addressed the concerns the IAD raised in the First Appeal. She says
Dhindsa’s move to the USA showed their marriage was genuine, as did
the phone bills she submitted. These bills dated from after the First Appeal,
so they demonstrated the couple’s continuing commitment to one another.
Further, the photos she submitted of them together with Dhindsa’s family show
the Applicant knew his family, which was one of the IAD’s concerns in the First
Appeal. On the whole, the evidence the Applicant submitted addressed the IAD’s
concerns on the First Appeal, so it should have exercised its discretion to
hear the Second Appeal.
Insufficient Reasons
[55]
The
Applicant also says the IAD did not adequately treat all the evidence she
submitted in its reasons. It was not enough for the IAD to say that it had
considered all the evidence. It did not mention the fact that she had lived
with Dhindsa for a month in 2011. This was evidence which contradicted the
IAD’s findings so, following Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425, the IAD was
bound to address it. Dhaliwal v Canada (Minister of
Citizenship and Immigration) 2001 FCT 1425 teaches that commitment over
time is capable of establishing the genuineness of a marriage.
[56]
Further,
the IAD also did not show in its reasons why the totality of the evidence the
Applicant submitted on the Second Appeal did not address the issues raised in
the First Appeal. It was not enough for the IAD to simply say that the evidence
did not address these concerns. The Applicant says the Respondent has admitted
that the IAD treated several pieces of evidence individually. The IAD actually
considered each piece of evidence in isolation, which led it to an unreasonable
conclusion.
Applicant
Unrepresented
[57]
Relying
on Kamtasingh v Canada (Minister of
Citizenship and Immigration) 2010 FC 45, the Applicant also says that
the IAD must ensure that unrepresented parties receive a fair hearing.
Dhindsa’s testimony could have served to clarify the issues the IAD was
concerned about at the First Appeal.
Jurisprudence
[58]
Although
the Respondent says the IAD was not bound by its previous decisions which the
Applicant has cited, the IAD failed to consider how these cases established the
relevance of the evidence she submitted. The cases she cited establish that
evidence of an ongoing relationship can demonstrate the marriage was genuine
when it was entered into, which the IAD did not appreciate in this case.
[59]
Anttal, which the
Respondent has said should govern the outcome of this case, is distinguishable
on its facts. Although Justice Snider upheld the IAD in finding that the
evidence presented in Anttal did not address the concerns the IAD raised
in the first appeal, the Applicant says her evidence in this case addressed the
IAD’s concerns in the First Appeal. Hence, the IAD should have exercised its
discretion to hear the Second Appeal.
Potential
Injustice
[60]
Although
the IAD said it would analyse the Applicant’s case in terms of the potential
injustice which would result from not considering any new evidence she adduced,
the Applicant says the IAD only evaluated some of the evidence she submitted on
the Second Appeal. The IAD did not analyse whether injustice would result if it
did not hear the Second Appeal. The IAD’s failure to consider how the Couple
would be separated if it did not hear the Second Appeal renders its Decision
unreasonable.
ANALYSIS
[61]
In
the Decision, the IAD concluded that the preconditions for the application of issue
estoppel as outlined in Angle, above, were met:
The Panel is satisfied that, on the basis
of the information before it, the preconditions to the operation of issue
estoppel exist in the instant matter. First, the previous IAD decision was
final. There was no application for judicial review of the previous decision.
Second, the parties to the decision are the same, namely the appellant (and the
applicant) and the Minister of Citizenship and Immigration. Third, the issues
are the same, that is, the genuineness of the marriage.
[62]
The
IAD then went on to decide whether, notwithstanding that the preconditions for issue
estoppel were met, it should exercise its discretion in accordance with the
governing jurisprudence and hear the appeal:
The Panel will focus on whether or not
there is a potential for injustice should the IAD not hear the appeal of the
second refusal to grant the applicant a permanent resident visa. In particular,
whether or not there is “new” evidence which meets the test for such evidences
which would establish an exception to the application of res judicata to
this matter.
[63]
Essentially,
the Applicant’s case before the IAD for an exception to res judicata and
an exercise of its discretion in her favour was that there was fresh evidence
to support a finding that the marriage was genuine, and that this evidence
could not have been adduced at the earlier proceeding by the exercise of
reasonable diligence.
[64]
I
find that the issue of whether the preconditions for res judicata were
satisfied in this case was decided correctly by the IAD.
[65]
The
preconditions for res judicata, as set out by the Supreme Court of
Canada in Angle, above, are as follows:
a.
The
same question was decided in earlier proceedings;
b.
The
judicial decision which is said to create the estoppel was final; and
c.
The
parties to the judicial decision were the same persons as the parties to the
proceedings in which the estoppel was raised.
[66]
In
the present case, the IAD determined that these preconditions were all met. The
question to be determined, the genuineness of the Applicant’s marriage, and the
parties to the decision were the same as those in the previous IAD decision.
The IAD is a court of competent jurisdiction with the authority to dispose of
sponsorship appeals. Therefore, the previous decision was final, and the IAD
was correct in finding that the preconditions for res judicata were met.
[67]
The
case law has established that, where the preconditions are met, issue estoppel
must apply unless special circumstances exist which would warrant hearing the
case on its merits. The Supreme Court of Canada has determined that an
evaluation of the special circumstances requires the decision-maker to ask
whether, taking into account all of the circumstances, the application of issue
estoppel would result in an injustice. See Danyluk, above, at paragraphs
64 to 67.
[68]
The
essence of this application before me is the Applicant’s contention that the
IAD’s analysis ended with the determination that the three prerequisite issues
for the application of res judicata applied. The Applicant says that the
IAD did not consider whether special circumstances existed to justify allowing
the appeal, nor did it consider whether or not to exercise its discretion to
allow the appeal to proceed, given the injustice that would result to the
Applicant, as is required by the common law on the application of res
judicata. In failing to consider whether the exercise of discretion was
warranted, the IAD committed an error of law, which the Applicant says begs the
intervention of this Court.
[69]
In
other words, did the IAD reasonably, as a matter of discretion, determine that issue
estoppel or res judicata ought to be applied in the Applicant’s
case?
[70]
The
Applicant claims that, instead of considering her new evidence in its totality,
the IAD evaluated each type of evidence separately and failed entirely to take
into account her most recent trip to India, which went directly to concerns
about the genuineness of the marriage and, in particular, about the Applicant’s
lack of interest in her husband’s family.
[71]
In
this regard, I accept the Applicant’s argument that the IAD addressed the
evidence in a piecemeal fashion and effectively failed to address the crucial
point that evidence of a continuing commitment which was not adduced, and could
not have been adduced, at the previous hearings can speak to the parties’
intention at the time of the marriage.
[72]
The
IAD also found that the Applicant’s evidence did not address the first panel’s
concerns regarding the intent of the parties to the marriage. In Dhaliwal,
above, at paragraphs 7 and 8, Justice Douglas Campbell found that subsequent
proof of commitment can be considered proof of commitment at the time of
marriage:
The Federal
Court of Appeal held in Kaloti that an “abusive attempt to relitigate” can be
an abuse of process. Implicit in Kaloti, and accepted in Kular, is the point
that, in matters such as this, new applications cannot be made without new
evidence pertaining to a spouse’s intent at the time of marriage. The
Applicant argues that the evidence of continuing commitment is new in that its
current nature was not present in the previous hearing, and that it speaks to
the parties’ intention at the time of marriage. I agree with this submission.
It is not contested that the IAD
typically uses evidence of subsequent conduct (see: Ugwu v. Canada
(Minister of Citizenship and Immigration), [2001] F.C.J. No. 1241 (QL)
(F.C.T.D.) and Meelu v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 25 (QL) (F.C.T.D.). In addition, s.5.9.1 of
the Immigration Overseas Processing Manual lists several factors that visa
officers should consider when deciding if a marriage is a marriage of
convenience, including whether spouses have lived together. This guideline
recognizes that evidence of commitment over time is capable of establishing
bona fides at the time of marriage. The weight to be afforded to such evidence
is a decision to be made after hearing the evidence. [emphasis added]
[73]
I think
the Applicant is also correct to say that continued contact
between the parties can constitute fresh evidence, and the IAD has found it
sufficient in the past to refuse the application of res judicata. In Singh,
above, at paragraphs 32 to 34, the IAD found the length of the marriage between
the parties indicated their marriage was genuine. The IAD had this to say on
point:
The panel
does not feel bound to consider only the new evidence. The panel did not hear
the previous matter. It cannot look behind the reasoning of the panel at that
time. The panel has conducted a hearing de novo and
considered all the evidence, both new and old, and the submissions of the
parties and made a new decision. The panel makes no apologies for its
decision nor does it attempt to distinguish its reasoning from that of the
previous panel which speaks for itself on the evidence that the panel
considered in the same way this decision speaks for itself on the evidence that
this panel considered.
The
appellant and applicant have been married since April 2002. Their marriage has
endured over five years despite two refusal and two appeals. All the indicia
typically considered by the IAD in assessing the genuineness of a marriage are
present and to a greater and lesser degree the indicia
are positive. The evidence speaks to a relationship entered into on the basis
of a traditional arranged marriage. The respective families were involved in
the arrangement which, while compact in time, does not suggest an attempt to
hide the marriage. The evidence considered today was found credible and it
answered the concerns raised by the visa officer.
When
considered in its totality the evidence
does not support a conclusion that the marriage was entered into in bad faith. [emphasis
added]
[74]
As
the Applicant points out, her marriage to her husband has endured even longer
than the five-year marriage in Singh. The Applicant has been married to
her husband since 2004, throughout both sponsorship refusals and both IAD
appeals. Unlike IAD Member Patel, the IAD in Singh considered the
entirety of the evidence rather than conducting a piecemeal analysis of each
category of evidence.
[75]
Also
of relevance to this case is that in Podai, above, the IAD considered
new evidence of visits to India, the couple spending time together,
photos, and the documentation to show their communication through the Internet
and mail and concluded that this new evidence was sufficient to refuse the
application of res judicata. Similarly, in Patel, above, the IAD
considered evidence of trips to India, time spent with the spouse’s family in India, photos, and
proof of continuous contact when deciding that res judicata should not
apply.
[76]
I
agree with the Respondent that each case has to be decided on its facts and
that previous decisions of the IAD do not constitute binding precedents.
However, they are indicative of the kind of evidence that can be used to
overcome res judicata and of what is likely to be persuasive. In the
present case, the Applicant presented substantial evidence to show her
commitment to her husband in the years following her first IAD appeal in 2007.
Her husband had moved temporarily to the USA for work
from 2007 until 2010. Since they were closer to each other, the Applicant was
able to visit her husband more often, and saw him several times each year.
Proof of the trips to the USA, a joint bank account, money transfers,
telephone bills, photos, and gifts bought for each other were submitted to the
IAD in counsel’s submissions on 14 February 2011. In
addition, the Applicant’s longer trip to India in 2011 was
also put forward as proof of her subsequent commitment to her husband, and
evidence of the trip was faxed to the IAD on the 5 July 2011.
[77]
The
Decision shows that the IAD rejected the Applicant’s proof of her trips to see
her husband, her photographs, and phone records, because the same type of
evidence had been adduced at the first IAD appeal. However, what seems to have
been left out of account here is the point made in Brij, above, that
continuous communication, and the length of the relationship between the
parties could have changed the result of the first appeal. As the Applicant
points out, some of the evidence submitted in Brij, was the same type
that was submitted in the first appeal, but the IAD still accepted the new
evidence because it went to the genuineness of the marriage.
[78]
I
agree with the Applicant that there is considerable jurisprudence to support
the notion that proof of subsequent commitment can represent proof a marriage
was genuine when it was entered into. The Applicant and Dhindsa adduced
evidence to show that they have strengthened their marriage over the past seven
years, and that they continue to be committed to their relationship. They
provided substantial documentation to the IAD to show their commitment towards
one another. There is also jurisprudence that new evidence can be relevant,
even if the same type of evidence was submitted at the first appeal.
[79]
If
a relationship is genuine and continues over time, it stands to reason that
more photographs, cards, letters, and telephone bills will become available.
Although evidence of the same kind may have been introduced before, it speaks
to an aspect of the marriage which was not previously present: the commitment
over time. Also, in this case, the IAD appears to have completely disregarded
the evidence of the Applicant’s most recent trip to India. I accept
the Applicant’s position that the IAD unreasonably erred in its assessment of
the facts and ignored the existence of fresh and decisive evidence.
[80]
The
Respondent takes the position that the IAD had the discretion to determine
whether, in the circumstances of this case, the evidence the Applicant provided
constituted new evidence which would allow the exception to the application of res
judicata. The Respondent says it was reasonable for the IAD to determine
that the evidence put forward as a result of the length of time that had passed
in the alleged relationship did not amount to decisive new evidence of the
Couple having lived together, of their intention to reside together
permanently, or of a deeper relationship.
[81]
I
agree that the IAD has this discretion. However, I think the Applicant is right
to say that the IAD failed to consider the evidence as a whole, even though it
addressed the concerns expressed at the first IAD appeal. Counsel for the
Applicant submitted evidence that addressed the major concerns at the first
appeal, namely the Applicant’s knowledge of her husband’s family, and the
Couple’s intent at the time of marriage. As the Applicant points out, the
evidence she submitted pertained to the following important issues:
Cohabitation
in the USA and India
Dhindsa moved
to be closer to the Applicant
[82]
The
Applicant’s husband made a significant change in his life when he obtained a
visa to work in the USA from 2007 to 2010. His primary purpose for
selecting the USA as his place
of employment was to be closer to his wife. The Applicant submitted new
evidence of Dhindsa’s move to the USA, including his American
visa, with the second sponsorship. She also provided significant documentary
evidence including boarding passes, photos, bus tickets, hotel receipts,
purchase receipts and itineraries as proof of her trips to the USA, as well as
proof of the Couple’s visit to one another during that period. The Applicant’s
husband also bonded with the Applicant’s daughter when the Applicant flew to
the USA to visit him
in June 2007.
Applicant visited India in 2011
[83]
The
Applicant spent time with Dhindsa and his family in her most recent trip to India from April
22, 2011 to May 15, 2011. This trip addressed concerns from the first appeal
about the Applicant’s knowledge of her husband’s family.
Ongoing
Communication between the Couple
[84]
All
telephone bills submitted by Applicant’s counsel dated from after the first
refusal and demonstrated the constant communication between the Applicant and
her husband.
Applicant’s
Knowledge of Dhindsa’s Family
[85]
The
photos the Applicant submitted show her and Dhindsa enjoying each other’s
company on their various trips to see one another. They also show the Applicant
spending time with Dhindsa’s family in India. These
photographs directly address the first IAD Panel’s concerns about the
Applicant’s knowledge of her husband’s family and their intent at the time of
marriage.
Ongoing Financial
Support
Joint Account and Money
Transfers
[86]
The
Applicant submitted proof of her and Dhindsa’s joint bank account as well as
money transfers that show that she received financial support from him after
the first appeal.
Receipts from purchases
[87]
Several
receipts from items purchased together while the Applicant and her husband
visited each other in the USA demonstrate the time they spent together and
further corroborate evidence of their visits from 2007-2010.
Conclusion
[88]
Considered
collectively, I agree with the Applicant the evidence she submitted directly
addressed the IAD’s initial concerns about the Couple’s intentions at the time
of their marriage, and the Applicant’s knowledge of her husband’s family. They
have cohabited numerous times since the first IAD appeal, maintained ongoing
communication, and have shown some financial dependence on one another.
[89]
All
in all, I think the Applicant has made her case for reviewable error on this
central issue.
[90]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application is allowed, the decision is quashed and the matter is referred back
to a differently constituted IAD for reconsideration.
2.
There
is no question for certification.
“James
Russell”
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