Date: 20080109
Docket: IMM-2179-07
Citation: 2008 FC 30
Vancouver, British Columbia, January
9, 2008
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
NARINDER
KAUR ANTTAL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Applicant in this judicial review is Ms. Narinder Kaur Anttal, a Canadian
citizen. On May 4, 2003, she married Gurdeep Singh Anttal, a national and
resident of India and has
subsequently applied twice to sponsor Mr. Anttal for immigration to Canada. In this
judicial review application, the Applicant seeks to overturn the decision of a
panel of the Immigration Appeal Division (the IAD) of the Immigration and
Refugee Board, dated April 19, 2007. In its decision, the IAD determined that
the second application for sponsorship should be dismissed on the basis that it
was res judicata.
Issues
[2]
As
refined by the parties during their oral submissions, the issues in this
application are as follows:
1.
Did
the IAD err in determining that res judicata applied despite the new
evidence put forward by the Applicant?
2.
Was
the refusal of the IAD to adjourn the hearing a denial of procedural fairness?
Background
[3]
Pursuant
to provisions in the Immigration and Refugee Protection Act, S.C. 2001,
c. 27, (IRPA) (in particular s. 12(1)) and the Immigration and Refugee
Protection Regulations, S.O.R./2002-227 (the Regulations), a Canadian
citizen may sponsor a spouse as a member of the family class. The spouse then
becomes eligible for permanent resident status in Canada. However,
any marriage must be genuine and not “entered into primarily for the purpose of
acquiring any status or privilege under [IRPA]” (Regulations, s. 4).
[4]
The
Applicant’s first sponsorship application was refused by a visa officer and, on
appeal, by a panel of the IAD (the First IAD Appeal). In its decision, dated
February 4, 2005, the IAD held that the Applicant had not demonstrated that her
marriage was genuine or that it was not entered into primarily for the purpose
of acquiring a status or privilege under the Act. In brief, the IAD found that
the evidence at the hearing was not credible or trustworthy, citing numerous
examples where the testimony of the Applicant consisted of misrepresentations,
discrepancies and inconsistencies. Evidence of materials allegedly related to
the marriage (such as telephone receipts, calling cards, etc.) did not
“overcome the major credibility concerns arising on appeal”. There was no
judicial review of the decision in the First IAD Appeal.
[5]
In
August 2005, a second application was submitted. In a decision dated March 27,
2006, a visa officer refused this second application on the basis that there
was simply no new or relevant evidence (either in the application or during an
interview of Mr. Anttal) that persuaded the visa officer to conclude that the
marriage was now genuine. Once again, credibility, as well the particular
circumstances of the marriage, were key points upon which the decision was
based.
[6]
The
Applicant appealed to the IAD (the Second IAD Appeal). On its own motion, the
IAD requested submissions from the parties on the issue of whether the second
appeal constituted an abuse of process, or whether it ought to be dismissed for
res judicata.
[7]
In
response to this letter, the Applicant put forward new evidence including
telephone bills, photographs, evidence of recent trips to India, and medical
evidence confirming that the Applicant was pregnant. This evidence had not been
provided to the visa officer and arose only at this appeal stage. The Applicant
and Mr. Anttal offered to provide DNA evidence, after the child’s birth, as
proof that Mr. Anttal was the father.
[8]
Based
on the written submissions, the IAD, in a decision dated April 19, 2007,
concluded that the doctrine of res judicata applied to this case and
that that there was no need to determine if the second appeal constituted an
abuse of process. The key elements of the decision are set out in the following
extract:
[12] Does the new evidence tendered with
the second sponsorship’s application constitute decisive fresh evidence; I find
that it does not. Essentially, it gave the appellant the opportunity to prepare
herself to be able to demonstrate that her marriage with the applicant is
genuine. There is insufficient evidence provided nor are there sufficient
explanations given as to why such a relationship was demonstrably lacking in
the opinion of the IAD member, at the time of the hearing of the first appeal.
More than telephone calls, photographs, recent trips to India and alleged pregnancy are required, 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. With respect to the alleged pregnancy, this is not in my
view conclusive evidence per se of a genuine relationship not entered
into for immigration purposes and does not establish the exception of res
judicata.
[9]
The
appeal was dismissed on the basis of res judicata and without
considering either the issue of abuse of process or the merits of the
application. This is the decision that is the subject of this judicial review.
Analysis
[10]
The
test for res judicata was defined by the Supreme Court of Canada in Danyluk
v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 at para. 25 and applied
in the context of an IAD decision in the case of Rahman v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1321. The first step of the test
requires the decision maker to determine if the criteria for issue estoppel
have been met (Rahman, above at para. 15). Those criteria are that:
1. the same
issue has been previously decided in earlier proceedings;
2. the previous
decision was a final judicial decision; and
3. the parties
to the present proceeding are the same parties as the parties to which the
previous decision applied.
[11]
If
an issue estoppel is raised, the decision maker must then consider whether
special circumstances exist which warrant hearing the case on the merits (Rahman,
above at para. 21).
[12]
To
determine whether the IAD properly applied the res judicata doctrine, it
is necessary to consider whether the IAD’s decision accords with the two-step
analysis set out in Danyluk and applied in Rahman, above.
[13]
Each
step of the analysis requires a different standard of review (see Rahman,
above, at paras. 12-13). The standard of review to be applied to the IAD’s
determination of the first step of the res judicata test is correctness
while the standard of review of the IAD’s determination of the second step is
patent unreasonableness.
[14]
With
respect to the first step, the IAD determined that the three preconditions were
present. I can see no error at this stage. Indeed, the Applicant does not raise
any issue with this part of the IAD’s analysis. In summary:
1. The same
issue was raised on the Second IAD Appeal as that which was determined in the
First IAD Appeal; that is, whether the marriage was genuine and not entered
into primarily for the purpose of acquiring any status or privilege under the
Act. Any evidence submitted by the Applicant on the Second IAD Appeal did not
change the nature of the question to be determined (Hamid v. Canada (Minister of
Citizenship and Immigration), 2007 FC 220 at para. 9; Rahman,
above, at para. 17).
2. Second, it is
clear that the decision in the First IAD Appeal was final. 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); Rahman, above at para. 18). Further, there was no
application for judicial review from this decision.
3. Finally, the
parties were the same in both proceedings.
The three preconditions for the application
of res judicata were correctly found to have existed in the case at bar.
[15]
Once
it determined that the criteria set out in Danyluk applied, the IAD was
required to turn its mind to whether there were circumstances that would
warrant the hearing of the case on the merits. Was there “decisive fresh
evidence”? The IAD concluded that there was not.
[16]
As
noted in Rahman, above at para. 13, the second step of the res
judicata test is a discretionary decision reviewable on a patent
unreasonableness standard. At this stage of the analysis, the Applicant argues
the IAD erred by concluding that the fresh evidence – including evidence of the
Applicant’s pregnancy – did not warrant the hearing of the case.
[17]
The
Applicant places great emphasis on the case of Dhaliwal v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 1425. While acknowledging that Dhaliwal
dealt with an abuse of process issue rather than res judicata, the
Applicant submits that Dhaliwal stands for the principle that, whether
considering an abuse of process or res judicata, “ample, new, and
relevant evidence” requires the IAD to hear the case on its merits.
Furthermore, the Applicant argues, the case of Rahman, above, relied on
by the Respondent, is distinguishable as there is ample, new, and relevant
evidence in the case at bar. In short, the Applicant argues that the evidence
in this case is much stronger than was the case in Rahman or other cases
where res judicata findings were upheld (see, for example, Hamid,
above).
[18]
Unfortunately
for the Applicant, this judicial review is not about comparing the evidence in
this case to that presented in other cases. Rather, the task of the Court is to
determine whether the IAD’s decision, on the facts and evidence before it, was
patently unreasonable. The Applicant is not arguing that the IAD ignored any
evidence. Thus, the only question is whether the IAD’s conclusion is so
irrational that the Court cannot let it stand. I do not think that it is.
[19]
The
key issue in the Second IAD Appeal was the genuineness of the Applicant’s
marriage. Although the Applicant submitted photos, evidence of telephone calls
and recent trips to India, as well as evidence of her pregnancy, the IAD
in the second appeal did not find that the evidence submitted was sufficient to
overcome the IAD’s earlier findings. In light of the serious credibility
concerns found by both visa officers and the IAD in the First IAD Appeal, this
conclusion is not unreasonable. I note that: (i) the case law has held that the
birth of a child is not conclusive evidence of the genuineness of a
relationship (Rahman, above at para. 29; Singh v. Canada (Minister of
Citizenship and Immigration), 2006 FC 565 at para. 12; Hamid, above
at para. 13); and, (ii) 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.
Issue #2: Was the
refusal of the IAD to adjourn the hearing a denial of procedural fairness?
[20]
The
Applicant submits that the IAD should have adjourned the hearing until DNA
evidence could have been provided for the IAD’s consideration. Proceeding to
decide the res judicata question prior to obtaining this evidence was a
denial of procedural fairness. I do not agree.
[21]
Had
there been a clear request for an adjournment, I may have agreed with the
Applicant. However, the only indication that I can find on the Tribunal Record
that the Applicant made a request to adjourn is the following written
submission by the Applicant’s counsel in response to a request by the IAD to
provide submissions on the issue of res judicata:
In light of the birth date of
the child in the middle of 2007, it is suggested that it maybe appropriate for
the Board to consider that this matter should proceed but that, in the interim,
after the birth of the child, DNA tests should be performed to confirm the
parentage of the child and that alternative dispute resolution should also be
available.
[22]
This
is a far cry from an explicit request for an adjournment. The letter states,
“it is suggested that it maybe appropriate for the Board to consider that this
matter should proceed…” [emphasis added]. In other words, the letter indicated
the Applicant was content with proceeding. The IAD accepted this letter at face
value and proceeded to make its decision. I fail to see how doing so amounted
to a violation of procedural fairness.
Conclusion
[23]
For
these reasons, the application for judicial review will be dismissed. Neither
party proposed a question for certification.
ORDER
THIS COURT
ORDERS that:
1. The
application for judicial review is dismissed; and
2. No question of general importance is certified.
“Judith A. Snider”
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