Docket:
IMM-849-13
Citation: 2013 FC 1121
Ottawa, Ontario, November
5, 2013
PRESENT: The Honourable Madam Justice Kane
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BETWEEN:
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HAITIAN PING
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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, Mr Ping, a Canadian citizen,
married Ms Zhou, a citizen of China, on April 28, 2007. He has applied twice to
sponsor Ms Zhou for immigration to Canada. The applicant now seeks judicial
review pursuant to section 72 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act], of the decision of the Immigration Appeal Division [the
“IAD”] of the Immigration and Refugee Board made on December 5, 2012. In its
decision, the IAD dismissed the spousal sponsorship application on the basis
that it was res judicata.
[2]
For the reasons that follow, the application is
dismissed.
Background
[3]
The applicant was born in China in 1952. He married his first wife in December 1979. They divorced on January 7,
2007.
[4]
The applicant’s second wife, Ms Zhou, was born
in January 1975, married her first husband in May 1999, had one daughter, and
divorced on March 6, 2006.
[5]
The applicant met Ms Zhou via the internet. He
later travelled to China, and three weeks after meeting Ms Zhou in person, they
married on April 28, 2007.
[6]
The first sponsorship application for Ms Zhou
and her daughter was denied on May 26, 2008. The IAD dismissed the applicant’s
appeal on May 31, 2010 (Ping v Canada (Minister of Citizenship and Immigration),
[2010] IADD No 2209 [First Decision]) following a hearing. The IAD found that
the applicant and his wife had not established that their marriage was genuine
for several reasons, including the significant discrepancies and
inconsistencies in their evidence without satisfactory explanation. The IAD
upheld the decision of the visa officer that the marriage fell within section 4
of the Immigration and Refugee Protection Regulations, SOR/2002-227,
i.e., the marriage was not genuine and was entered into primarily for
the purpose of acquiring status under the Act.
[7]
The applicant applied a second time to sponsor
his wife and her daughter in July 2011. On January 9, 2012, the visa officer
refused the application on the same grounds that the marriage was not genuine
and was for the purpose of acquiring status under the Act. The applicant
appealed the decision to the IAD and the IAD then invited submissions on the
issue of res judicata and abuse of process.
[8]
The applicant’s submissions asserted that
special circumstances existed to permit a new hearing because he did not have
legal representation at his first hearing due to a lack of financial resources
and because he lacked proficiency in English.
[9]
On December 5, 2012 the IAD dismissed the appeal
(the “Second Decision”) finding that the doctrine of res judicata applied
and that no special circumstances existed to warrant an exception to the
doctrine.
[10]
This application is for judicial review of the
Second Decision.
The decision under review
[11]
The IAD found that the second application was res
judicata as the three preconditions established in Danyluk v Ainsworth
Technologies Inc, 2001 SCC 44 at para 25, [2001] SCJ No 46 [Danyluk]
had been met:
(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.
[12]
The IAD noted that the doctrine of res
judicata would not prevent an applicant from launching a second application
based on a change of circumstances. It also noted that an exception to res
judicata exists where “fresh, new evidence, previously unavailable,
conclusively impeaches the original results” (Toronto (City) v
Canadian Union of Public Employees (CUPE), Local 79, 2003 SCC 63 at para
52, [2003] 3 S.C.R. 77 [CUPE]).
[13]
However, the IAD found that the applicant had
not provided new evidence sufficient to overcome the concerns identified in the
earlier decisions regarding the purpose of the couple’s marriage, including the
differences in their age, incompatibility, their on-line meeting while the
applicant was still married and residing with his first wife, that they married
within three weeks of their first face-to-face meeting and that they had only
superficial knowledge of each other and had not learned, shared or remembered
basic information about each other because, as the IAD concluded, they did not
intend their relationship to be lasting.
[14]
The IAD found that the new evidence was more of
the same type of evidence provided at the first application. Although the
applicant provided evidence of ongoing communication with Ms Zhou, visits to China, and financial transactions, the IAD found that this did not address or overcome the
earlier findings of the First Decision. The IAD also found that letters
provided by the applicant’s son and his step-daughter, although new evidence,
could not address the earlier findings regarding the genuineness of the
marriage because the son and step-daughter had little knowledge of the
relationship, nor would permitting them to testify in person address these
concerns.
[15]
The applicant does not take issue with the IAD’s
finding that the three conditions for res judicata were satisfied, but
only with its determination that an exception to the doctrine was not
warranted.
[16]
The applicant submits that the decision is
unreasonable because the IAD erred: in its application of the res judicata
doctrine; by misstating facts; and, by denying the applicant natural justice
and procedural fairness.
Standard of Review
[17]
As noted in Rahman v Canada (Minister of Citizenship and Immigration), 2006 FC 1321
at paras 11-12, [2006] FCJ No 1661 [Rahman], each step of the res
judicata analysis attracts a different standard of review. However, the
only issue in this application is whether special circumstances exist to
justify an exception. As this involves the exercise of discretion, it is
reviewed on the standard of reasonableness.
[18]
Where the standard of reasonableness
applies, the role of the Court on judicial review is to determine whether the
Board’s decision “falls within a ‘range of possible, acceptable outcomes which
are defensible in respect of the facts and law’” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2009] 1 S.C.R. 339). There may be several reasonable outcomes and “as long as the
process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome” (Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 59). The
Court will not re-weigh the
evidence or substitute any decision it would have made.
Did the IAD err in its application of res judicata?
[19]
The applicant submits that the IAD failed to
analyze the totality of the evidence and failed to consider that an injustice
would result from the application of res judicata, including that the
family could not be reunified. Although the IAD acknowledged his new evidence,
such as photographs, recent trips to China, phone and Skype records
demonstrating daily contact, pictures and money transfer receipts, the
applicant submits that it did not analyze this new evidence which, in his view,
addresses the earlier findings that the marriage was not intended to last.
[20]
The applicant relied on Sami v Canada
(Minister of Citizenship and Immigration), 2012 FC 539, [2012] FCJ No 552 [Sami],
to support his position that evidence of commitment over time between the
sponsor and the spouse can constitute special circumstances to overcome res
judicata and to warrant hearing the case on its merits.
[21]
The applicant submits that the IAD did not
consider, or did not understand, the evidence that his wife attended at the
hospital during his mother’s dying days and regularly visits his mother’s
grave; that he pays for his step-daughter’s private school fees; that the
couple had jointly purchased an investment property in British Columbia; and
that his ex-wife had retracted her previous statements indicating that his
current marriage was fraudulent.
[22]
The respondent notes that CUPE sets the
bar very high and that while compelling new evidence of
a genuine marriage could give rise to special circumstances capable of
overriding res judicata, that evidence must do more than simply bolster
the genuineness of the marriage (Gharu v Canada (Minister of Citizenship and
Immigration), 2003 FCT 237 at para 18, [2003] FCJ No 320 [Gharu]; Anttal
v Canada (Minister of Citizenship and Immigration), 2008 FC 30 at para 19,
[2008] FCJ No 180 [Anttal]).
[23]
I agree that the jurisprudence has set a high
bar for new evidence that could be considered as constituting special
circumstances capable of overriding res judicata. As noted in CUPE,
the new evidence must be practically conclusive of the matter.
[24]
Although the applicant has pointed to
jurisprudence where similar evidence to that offered by him has been found to
constitute special circumstances, no two cases are exactly the same and it is
not the nature of the evidence that is determinative but how that evidence
addresses or overcomes the earlier findings.
[25]
In Sami, the Court found that subsequent
proof of a continuing relationship may overcome res judicata of a
previous decision finding the relationship to be not genuine. In Sami,
Justice Russell remarked at paras 78-79:
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.
[26]
Justice Russell concluded that the IAD failed to
consider the evidence as a whole and noted how the new evidence responded to
the key concerns of the IAD in the first appeal with respect to the applicant’s
knowledge of and relationship with her husband’s family and their intent at the
time of marriage.
[27]
The Court has also reached the opposite
conclusion, noting that new evidence to overcome the original intent of the
marriage is not easily created after the marriage, even if the marriage endures
over time. In Gharu, after numerous attempts at re-litigating her failed
sponsorship applications, the applicant tried to overcome res judicata by
introducing evidence revealing the genuine intentions of her husband at the
time of the marriage. In dismissing the judicial review, Justice Gibson wrote,
at paras 17-18:
17 With great
respect, I am satisfied that an applicant seeking to relitigate on facts such
as those now before the Court must present more than simply "...new evidence
pertaining to a spouse's intent at the time of marriage." In a quotation
from the reasons of the Tribunal for the decision here under review that
appears earlier in these reasons, the Tribunal speaks of "relevant and
permissible new evidence" that can be described as "decisive new
evidence demonstrably capable of altering the result of the first
hearing." The Tribunal continued:
Decisive new
evidence must be probative of the intention fixed in time by the relevant
definition of the Act such as the intention of the applicant at the time of
marriage, and must be fresh evidence which genuinely affect an evaluation of
the intention rather than merely additional evidence that tries to bolster or
create the intention.
On the unique facts
of this matter, including as they do four (4) sponsorships and related
applications for landing in Canada, each rejected by a different Visa Officer
on common grounds, each of which rejections could have been appealed to the
Tribunal and two (2) of which were in fact so appealed, I adopt the foregoing
comments of the Tribunal as my own.
18 The Applicant
has had "her day in court". She is not precluded by the determination
of abuse of process that is here under review from again seeking to have her
husband's intent at the time of marriage redetermined on the basis of truly
fresh evidence that is both qualitatively and quantitatively significant. On
the facts that were before the Tribunal in this matter, and that are before the
Court, I am satisfied that the Tribunal's conclusion that the new evidence that
was before it did not meet that test but was rather "... merely additional
evidence that tries to bolster or create the intention", was reasonably
open to it.
[28]
In Anttal, Justice Snider found that the
new evidence submitted by the applicant which included
photos, evidence of telephone calls and recent trips to India, and evidence of
the applicant’s pregnancy, did not overcome the earlier findings of the IAD
regarding the applicant’s credibility and misrepresentations.
[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. […]
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
unreasonable.
[29]
In the present case, the IAD reasonably
concluded that the applicant’s fresh or new evidence did not constitute special
circumstances sufficient to overcome the application of res judicata.
Unlike Sami, where the Court found that the new evidence of their
continuing commitment responded to the basis on which the IAD had found their
relationship to not be genuine (namely, their intent at the time of marriage),
the applicant’s new evidence did not address the IAD’s concerns in the First
Decision about the fact that they knew little about each other, married shortly
after meeting for the first time in person and had begun their on-line
relationship while the applicant was still married to and living with his first
wife and that they “were not able to provide sufficient testimony to demonstrate
depth to their relationship or what they had in common” because “gaps and
discrepancies [in their testimony] are not indicative of a genuine spousal
relationship with the extent of the alleged contact and communication between
the couple” (First Decision, at para 9).
[30]
The other new evidence that the applicant
submits was ignored by the IAD, such as Ms Zhou’s visits to his mother’s grave,
his payment of private school tuition fees for his step-daughter, and the
purchase of a joint investment property in British Columbia, does not address
the IAD’s concerns about the relationship lacking depth and common interests.
[31]
It should also be recalled that the IAD invited
the applicant to make submissions on the application of res judicata.
Those submissions, indicating that there was decisive new evidence and special
circumstances to permit a rehearing on the merits, referred to the applicant’s
lack of legal representation and his lack of proficiency in the English
language at his first hearing.
[32]
The IAD considered these submissions and noted
that the applicant did not demonstrate any lack of proficiency in English
either in his oral or his extensive written submissions and that he was offered
but declined an interpreter. The IAD also found that his submissions regarding
his lack of legal representation failed because his conduct in the previous
proceedings demonstrated that he was aware of the requirements, the processes,
and the case to be met, and had no difficulty expressing himself at the
hearings orally and in writing.
[33]
Although the applicant also argues that the IAD
should have separately balanced the injustice to the family that still remains
apart against the application of res judicata, such a balancing goes
beyond what is required.
[34]
In determining whether special circumstances
exist to warrant an exception to the doctrine of res judicata, it is
necessary to consider whether, taking into account all the circumstances, the
application of issue estoppel or res judicata would work an injustice (Rahman,
supra at para 20; Danyluk, supra at para 67).
[35]
While the couple may have continued their relationship,
the new evidence the applicant submits as special circumstances to overcome res
judicata cannot undo the findings made earlier.
[36]
The IAD did not err in applying the principles of res
judicata. The IAD considered all the applicant’s submissions and
circumstances in assessing whether the evidence justified exercising its
discretion to overcome the application of res judicata, and reasonably
found that it did not.
Did the IAD misstate the facts?
[37]
The applicant submits that the IAD misstated
some facts, which reveals that it did not conduct an adequate review of his new
evidence. The applicant notes that the IAD erroneously referred to the
“appellant’s spouse…and her son”, rather than her daughter; failed to note that
the applicant separated from his ex-wife in May 2005, although they continued
to live together until January 2007; and, failed to note that the applicant and
Ms Zhou had been in daily contact by internet for five and a half months prior
to marrying three weeks after their first in-person meeting.
[38]
The Board did not misstate the facts with
respect to the relationship. It is true that the internet relationship began
while the applicant was still married and living with his first wife, although
the applicant has indicated that they were separated but remained living in the
same residence for practical and financial reasons. It is also true that the
applicant married Ms Zhou within three weeks of their first face-to-face
meeting.
[39]
The reference to Ms Zhou’s son appears to be a
simple mistake, as elsewhere in the decision the IAD correctly refers to her
daughter or to the applicant’s step-daughter.
[40]
The failure to mention details or nuances does not
imply that the IAD did not consider the applicant’s new evidence. In Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708, the Supreme Court noted that the reasons must be
read together with the outcome to assess whether the result falls within a
range of possible outcomes.
[41]
Moreover, the fact that the IAD did not mention
each document submitted does not indicate that it did not take them into
account: on the contrary, a tribunal is assumed to have weighed and considered
all the evidence presented to it unless the contrary is shown (Florea v
Canada (Minister of Employment and Immigration), [1993] FCJ No 598 (FCA)).
Was the applicant denied procedural fairness?
[42]
The applicant submits that he was denied
procedural fairness at the first IAD hearing because he was not given an
opportunity to call key witnesses, including a friend, his first wife, son and
step-daughter. The First Decision mentioned a “poison-pen” letter and the
testimony of his ex-wife, who later stated that the information was not
completely accurate. The applicant, therefore, submits that the inability to
call his ex-wife as a witness was an egregious breach of his right to
procedural fairness.
[43]
The applicant also argues that the IAD’s
comments that time constraints at hearings are not unusual and that parties are
required to present their case strategically given the time constraints do not
absolve a breach of procedural fairness. The applicant cites Ayele v Canada (Citizenship and Immigration), 2007 FC 126, [2007] FCJ No 174 [Ayele], as
authority that the IAD’s refusal to hear his witness constituted a breach of
the duty of procedural fairness.
[44]
In Ayele, the Court reached that conclusion but
on different facts from those present. Justice Dawson, as she then was, noted
several reasons for finding that the IAD’s decision to refuse to hear a witness
who was expected to give relevant evidence that would have supported the appeal
was a breach of procedural fairness, including, at para 11:
[11]
Third, one can never rule on the credibility of evidence that has not yet been
heard. The presiding member violated this principle when he stated that
even if the witness corroborated Mr. Ayele’s testimony that subsequent
testimony would not be credible.
[45]
Unlike Ayele, the IAD specifically
considered the applicant’s witnesses before concluding that they would not
possess relevant evidence to help the applicant overcome the earlier findings.
[46]
The applicant was not denied procedural
fairness. The applicant was given a fair hearing by the IAD in the First
Decision and had an opportunity to fully present all the evidence that would
have been relevant to his cause. The IAD, in the Second Decision, acknowledged
that the applicant was unable to call his son and step-daughter as witnesses,
and noted that applicants must present their cases carefully and cannot call
all witnesses they may wish, but more importantly noted at para 12:
The substantial lack
of credibility and knowledge, and failure by the couple to demonstrate genuine
relationship is not likely to be demonstrably altered by evidence from the
children that they view the marriage as genuine. The Member in the previous
appeal provided opportunity for both the appellant and applicant to give their
testimony, undertook a detailed examination to ascertain whether the
relationship was genuine, and eventually concluded that it was not, for reasons
that are not directly or demonstrably altered by the evidence that might be
offered by their children.
[47]
The IAD reasonably concluded that no evidence
that the children could have provided would remedy the defects in the
applicant’s case. The same could be said about any potential evidence that a
family friend may give.
[48]
With respect to the applicant’s ex-wife, the IAD
in the First Decision acknowledged that her evidence was not reliable and noted
that “other concerns surrounding [the] relationship” were problematic for the
applicant (First Decision, supra at para 9).
[49]
The information provided by the applicant’s
ex-wife was clearly not the deciding factor in the decision; rather, the IAD
based its decision on its own assessment of the facts, namely, the many
discrepancies and gaps between the testimony of the applicant and his wife.
Conclusion
[50]
The decision of the IAD that the application is res
judicata and that the new evidence submitted by the applicant does not
constitute special circumstances to override the doctrine of res judicata
is reasonable.
[51]
While this outcome may cause hardship for the
applicant and his spouse, the IAD considered the applicant’s submissions and
reasonably found that the new evidence did not address the earlier findings.
The decision falls within the range of acceptable outcomes and is justified on
the facts and the law and was clearly explained by the IAD.
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