Rahman v. Canada (Minister of Citizenship and Immigration), 2006 FC 1321

 

 

Date: 20061102

Docket: IMM-1642-06

Citation: 2006 FC 1321

Ottawa, Ontario, November 2, 2006

PRESENT:     The Honourable Mr. Justice Simon Noël

 

BETWEEN:

AZIZUR RAHMAN

Applicant

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, ch. 27 (IRPA) of a decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board denying Mr. Azizur Rahman’s (Applicant) sponsorship appeal. In its decision, dated February 27, 2006, the IAD dismissed the Applicant’s appeal without an oral hearing on the ground that the case was res judicata.

 

[2]               The IAD made two key findings. First, it found that all the preconditions for the application of res judicata were met in the Applicant’s appeal. Second, after considering the Applicant’s new submissions, the IAD found that the Applicant failed to establish any special circumstance that would warrant the non-application of the doctrine.

I. Background Proceedings and Facts

 

[3]               The Applicant, a Canadian citizen, has made two applications to sponsor his wife, Sultana Akter (Ms. Akter), as a member of the family class for permanent residence in Canada. He married her on September 29, 2001 in Bangladesh where she remains a resident and citizen. This was the Applicant’s second marriage.

 

[4]               On September 27, 2002, the Applicant filed his first sponsorship application. His wife was interviewed by a visa officer in May 2003 in Bangladesh with an interpreter present. In a decision, dated June 23, 2003, the visa officer rejected the application on the basis that the spousal relationship between the Applicant and Ms. Akter was not genuine and the marriage itself was not legally valid under the laws of Bangladesh.

 

[5]               In regards to the marriage’s authenticity, the officer expressed concern that Ms. Akter could only recall a few details of the Applicant’s life in Canada, could provide no photographs of the wedding, and was unable to explain discrepancies in the events around the marriage. In regards to the validity of the marriage, the officer noted that the Applicant was officially divorced from his first wife on September 16, 2001, less than a month before marrying his current wife. This meant that the Applicant’s second marriage violated the laws of Bangladesh which stipulate that a divorced man must wait 90 days from giving notice of the divorce before marrying again (Muslim Family Law Ordinance, 1961, Ordinance No. VIII of 1961 Vide Pakistan Code 1966, Vol. XIV, p. 67). Pursuant to section 2 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR), a marriage that took place outside Canada must be valid under both the laws of where it took place and under Canadian law. Accordingly, the officer found that the marriage between the Applicant and Ms. Akter failed to come within the definition of a valid marriage under the IRPA.

 

[6]               The Applicant appealed this decision before the IAD. After conducting a de novo hearing, which took place on July 12, 2004, the IAD upheld the visa officer’s decision. In its decision rendered August 9, 2004, the IAD found that the Applicant failed to demonstrate that his marriage was genuine and that it was not entered into primarily for the purpose of acquiring status or privilege under the IRPA. The IAD conducted its own analysis into the question of validity and, like the visa officer, determined that the marriage was not legally valid.

 

[7]               On October 17, 2004, the Applicant filed a second application to sponsor Ms. Akter. In a decision dated March 28, 2005, a second visa officer rejected this application after finding the marriage neither genuine nor valid. Further, the officer held that the new evidence submitted by the Applicant in support of the second application, which consisted primarily of telephone bills, was insufficient to overcome the concerns surrounding the authenticity and validity of the marriage.

 

[8]               On June 3, 2005, the Applicant appealed this decision to the IAD. In October 2005, the IAD asked both parties for submissions on whether res judicata applied to the second appeal. The parties responded by filing submissions in November 2005. Along with written argument, the Applicant’s submissions included a medical report from a physician in Bangladesh confirming Ms. Akter’s pregnancy and a legal opinion from a senior Bangladeshi lawyer attesting to the legal validity of the Applicant’s marriage. In a decision dated February 27, 2006, the IAD dismissed the appeal by applying res judicata. This is the decision currently under judicial review.

 

II. Issues

(1)   What is the appropriate standard of review of the IAD’s res judicata analysis?

(2)   Did the Immigration Appeal Division err in concluding that the three conditions to apply the doctrine of res judicata were satisfied?

(3)   Was it patently unreasonable for the Immigration Appeal Division to find that there were no exceptional circumstances in the case warranting the non-application of the principle of res judicata?

(4)   Should the Immigration Appeal Division have granted the Applicant an oral hearing?

III.  Analysis

(1)    What is the appropriate standard of review of the IAD’s res judicata analysis?

[9]               The doctrine of res judicata seeks finality to judicial proceedings by requiring litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. Generally speaking, judicial decisions should be conclusive of the issues decided unless and until reversed on appeal (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 at paras. 18-19).

 

[10]           In Danyluk, above, the Supreme Court emphasized that applying issue estoppel, the branch of res judicata at issue in this judicial review, involves a two-step process. Justice Binnie, writing for a unanimous court, summarized the proper approach in paragraph 33:

The first step is to determine whether the moving party (in this case the respondent) has established the preconditions to the operation of issue estoppel set out by Dickson J. in Angle, supra. If successful, the court must determine whether, as a matter of discretion, issue estoppel ought to be applied.

 

 

[11]           Each step attracts a separate standard of review (Mohammed v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1786, at paras. 16 and 19-20).

 

[12]           Whether the preconditions to the operation of issue estoppel were met is a question of law. The issue affects the individual Applicant’s procedural rights and the IAD has no greater expertise in applying the doctrine relative to the Court’s expertise in this area of the law. These factors point toward a strict standard of review. Therefore, the appropriate standard of review of the IAD’s res judicata analysis at the first stage is correctness (Mohammed, above at para. 16; Lageswaren v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1086, at para. 16; Al Yamani v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 345, at para. 18).

 

[13]           Conversely, the second-step involves an exercise of discretion and a weighing of relevant factors to determine whether special circumstances warrant the non-application of issue estoppel in this case. Discretionary factors attract a more deferential review (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paras. 34-37). Therefore, patent unreasonableness is the appropriate standard of review for the second-step. I agree with Justice Shore’s analysis which he set out at para. 19 of his reasons in Mohammed, above:

Whether there are special or particular circumstances warranting the non-application of the res judicata principle is a purely factual question, which pertains therefore to the expertise of the administrative decision-maker. Consequently, the patently unreasonable nature of the error is the appropriate standard of review.

 

 

(2)   Did the Immigration Appeal Division err in concluding that the three conditions to apply the doctrine of res judicata were satisfied?

[14]           This issue was not dealt with in oral submissions by the Applicant, only in the written submissions.

 

[15]           As per the Supreme Court in Angle v. Minister of National Revenue, 1975 2 S.C.R. 248, at p. 254, adopted in Danyluk, above, at para. 25, the three preconditions for the operation of issue estoppel are that:

(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.

 

 

[16]           The Applicant concedes that the third requirement was met in this case, but asserts that the first two criteria were not satisfied. He argues that the new facts which arose since the first IAD decision rendered on August 9, 2004 preclude a finding that the same question had been decided in the earlier proceedings. The Applicant relies on the alleged new facts that between the August 9, 2004 decision (first IAD decision) and the February 27, 2006 dismissal of the Applicant’s appeal (second IAD decision) his wife became pregnant, he had ongoing contact with his wife and he provided her with continuing financial support. In effect, the Applicant argues that these alleged new facts changed the nature of the question raised in his second sponsorship application.

 

[17]           In my opinion, the new facts alleged by the Applicant do not alter what the Applicant would have to establish and the questions that the IAD would have to answer in the second appeal. Pursuant to sections 2 and 4 of the IRPR a foreign national spouse who wants to immigrate to Canada as a member of the family class must satisfy the officer that his or her marriage: is genuine; was not entered into primarily for the purpose of acquiring a privilege under the Act; and is legally valid in both Canada and where it took place. Applicants have the onus of establishing these requirements on a balance of probabilities (See Ni v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 290, at para. 11, Mohammed, above, para. 22). This set of statutory criteria forms the basis of the questions in sponsorship appeals before the IAD.

 

[18]           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)). Following the first IAD proceeding, where the Applicant provided documentary evidence and was granted an oral hearing, the IAD answered the question of whether the Applicant’s relationship with Ms. Akter was a bona fide and valid marriage and whether it was entered into primarily to acquire a privilege under the IRPA. On a balance of probabilities, the IAD found that the Applicant’s marriage was neither genuine, nor valid and was most likely entered into primarily to help Ms. Akter immigrate to Canada. In essence, this is an answer to the same questions raised by the Applicant’s second appeal.  

 

[19]           The second appeal met all the res judicata criteria: it raised the same question, the prior decision was final, and the parties were identical. I conclude that the three preconditions for the operation of the issue estoppel were met in this case and the IAD’s decision in this regard was correct.

 

(3)   Was it patently unreasonable for the Immigration Appeal Division to find that there were no exceptional circumstances in the case warranting the non-application of the principle of res judicata?

 

 

 

 

 

 

 

[20]           The concern under the second-step of issue estoppel analysis is whether the operation of the doctrine would work an injustice. As stated by Justice Binnie in Danyluk, above at paragraph 67:

The objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case.

 

[21]           Where the three conditions have been satisfied, as in this case, the decision-maker must then apply the doctrine unless some special circumstances warrant hearing the matter on the merits. In determining whether such circumstances exist, it is necessary to ask whether, taking into account all the circumstances, the application of issue estoppel would work an injustice (Apotex Inc. v. Merck & Co., [2003] 1 F.C. 242 (FCA) at paras. 29-30).

 

[22]           The Applicant raises several circumstances, which he argues warranted the IAD exercising its discretion not to apply res judicata in this case. First, the Applicant argues that although the new facts already mentioned above (his wife’s pregnancy, telephone calls to his wife, and ongoing financial support of his wife) constituted fresh evidence of a genuine marriage, the IAD failed to consider them. Second, he asserts that the application of res judicata ignores the interests of his child and the fact that his counsel at the first IAD hearing was incompetent.

 

[23]           I will first deal with the allegation that the IAD ignored the fresh evidence put forward by the Applicant, and then address the remaining arguments.

 

(a)   Fresh Evidence

 

[24]           The IAD analyzed the question of “fresh” evidence according to the test set out by Chief Justice McEachern (as he then was in the BCSC) in Saskatoon Credit Union v. Central Park Enterprises Ltd., [1988] 47 D.L.R. (4^th) 431, at 438 (BCSC), which provides that the special circumstances include the discovery of decisive fresh evidence which could not have been adduced at the earlier proceeding by the exercise of reasonable diligence. The Saskatoon test was cited with approval by Justice Shore in the more recent decision of Mohammed v. Canada (Minister of Citizenship and Immigration), above, at para. 21.

 

[25]           According to the Certified Record before the IAD, the new documentary evidence submitted by the Applicant in the second appeal included telephone bills starting May 2003 through September 2004 showing phone calls to Bangladesh, a legal opinion from a senior Bangladeshi lawyer stating that the marriage is valid and genuine, and a medical note attesting to the Applicant’s wife’s pregnancy. I note that I was unable to find money transfer slips or any evidence that the Applicant was sending money to Bangladesh.

 

[26]           Thus far in these proceedings, the Applicant has been unable to persuade the respective decision makers that his marriage was genuine or legally valid. The IAD, in its first decision dated August 9, 2004, outlined the main reasons for its conclusions at paragraph 3:

The marriage is not valid legally as both spouses did not wait before the 90 day period had expired following the pronouncement of the appellant’s divorce from his first wife; the divorce affidavit is not acceptable as a legal document; no wedding pictures were provided; no wedding ceremony; events (divorce, engagement, marriage, departure of the appellant) happened in a very short period of time and lack of knowledge of the appellant’s life in Canada.

 

 

[27]           At paragraph 17 the IAD, in the same decision, expressed the following concerns:

The panel notes that not only the appellant and the applicant have not seen each other [sic] since October 5, 2001, but no evidence of money transfers, nor of meaningful contact between spouses, such as telephone bills, letters, or greeting cards, was produced at the hearing.

 

 

[28]           Although the Applicant now alleges that the IAD failed, in the decision currently under review, to consider the telephone bills or the medical note regarding the Applicant’s wife’s pregnancy, this allegation is not correct. The IAD considered both, but it found neither sufficient to offset the factors weighing against the Applicant. At paragraph 12, the IAD wrote:

 

More than telephone calls or alleged pregnancy are required [sic], 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.

 

 

[29]           The telephone bills indicate fairly regular phone calls to Bangladesh, but on their own they do not establish a genuine marriage: different Bangladeshi phone numbers appear, but no explanation was provided in the written submissions. The doctor’s note attesting to Ms. Akter’s pregnancy is also undermined by a lack of corroborating evidence. Specifically, the Applicant submitted no evidence of any trips to Bangladesh made by the Applicant after the wedding in September 2001. Presumably the Applicant was aware that the lack of evidence showing travel to Bangladesh concerned the IAD as the IAD said so in paragraph 17 of its earlier decision. Further, the mere existence of a child does not, on its own, establish the genuineness of a relationship (Amarijit Singh v. Canada (Minister of Citizenship and Immigration), 2006 FC 565 at para. 12). Without any corroborating evidence showing that the child was the Applicant’s or that it was even born, it was open to the IAD to find that the alleged pregnancy did not establish a genuine relationship.

 

 

 

[30]           The IAD’s second decision does not refer to the new legal opinion from a Bangladeshi lawyer attesting to the validity of the Applicant’s marriage. While it would have been better for the IAD to have turned its mind to these submissions in its reasons, a tribunal need not mention every piece of evidence in its reasons and is assumed to have weighed and considered all evidence before it, unless the contrary is shown (Hassan v. Canada (Minister of Employment and Immigration), (1992) 147 N.R. 317 (F.C.A.); Donkar v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1375, at para. 22). In any event, it is a moot point in this case because the lawyer’s opinion could have reasonably been produced at the first appeal. Therefore, the opinion fails to meet the threshold of decisive “fresh” evidence.

 

[31]           The Applicant relies on Dhaliwal v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1425, to support his argument that the phone bills and the medical note establish evidence of an on-going genuine relationship. In my view, Dhaliwal does not help the Applicant. First, Dhaliwal was “an abuse of process” case, rather than one of res judicata. Abuse of process requires the moving party to meet a stricter test: an additional serious element is required and it must only be invoked in the “clearest of cases” (Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307). Second, Justice Campbell in Dhaliwal, above at paragraph 9, expressed his opinion that the IAD in that case had “ample, new, and relevant evidence which should have been considered”. In my view, Dhaliwal can be distinguished from the present circumstances where the Applicant has not supplied ample evidence and what he did provide was considered by the IAD.

 

 

 

(b)   Child’s Best Interests and Incompetent Representation

 

[32]           The Applicant raises two other arguments which were only dealt with in the written submissions, both of which can be dealt with summarily. First, he says that the IAD’s decision is not in the best interests of his child. For the reasons outlined above, I am of the opinion that the Applicant has not met his evidentiary burden of satisfying the IAD that the alleged child was his or even that Ms. Akter gave birth to a child. Second, the Applicant alleges that his representation at the first IAD hearing was incompetent. The Applicant has failed to supply any evidence to support this allegation. The only evidence on record is that the Applicant was represented by counsel at the first appeal. Without more, I am unable to find that he has suffered an injustice because of his counsel during his first hearing.

 

(4)   Should the Immigration Appeal Division have granted the Applicant an oral hearing?

 

[33]           The Applicant also raises the procedural fairness argument that he should have received an oral hearing on his second appeal. Allegations concerning procedural fairness are always reviewed on a correctness standard (Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056, at para. 46).

 

 

 

[34]           In my view, the Applicant’s oral hearing allegation has no merit and cannot succeed even on the highest standard of review for several reasons. First, while it is true that the application of res judicata in effect denied the Applicant an oral hearing on the merits, preventing litigants from re-litigating questions that have already been settled by a court of competent jurisdiction is what the doctrine is designed to achieve. By definition res judicata is a pre-hearing matter that, if applied, precludes a full hearing. (This potentially harsh result helps to explain why safeguards were built into the second stage of the legal test for applying the doctrine). In Kaloti v. Canada (Minister of Citizenship and Immigration), [2003] 3 C.F. 390 (F.C.A.), at paragraphs 9-10, the Federal Court of Appeal confirmed that the IAD has the authority to summarily dismiss, i.e. without a full hearing on the merits, an appeal when the appellant seeks to re-litigate on essentially the same evidence. These are the circumstances that arose in this case. Therefore, the IAD was not required to grant the Applicant an oral hearing and was entitled to decide the appeal on the evidence as filed.

 

[35]           Second, the IAD specifically notified the Applicant that his appeal may be decided on the basis of written submissions and asked him to proceed accordingly. In a letter dated October 14, 2005 the IAD invited the Applicant to make submissions on the issue of res judicata and informed the Applicant that, if the doctrine applied, his appeal may be subject to dismissal without an oral hearing. The IAD added that it normally decides res judicata motions without an oral hearing. In a bolded portion of the letter, the IAD again warned the Applicant about the real possibility of there being no further hearing:

Please proceed on the basis that there will be no oral hearing in this motion. Accordingly, you should send to the Immigration Appeal Division and to the Minister’s counsel written argument on whether or not the appeal should be dismissed by reason of the application of res judicata. … In addition to written argument, the appellant may provide affidavit evidence from the appellant and any other supporting witnesses setting out the new evidence that is being tendered in the support of the appeal.

 

 

[36]           Third, the fresh evidence submitted by the applicant was so weak that it did not trigger any concerns.

 

IV.  Conclusion

 

[37]           In summary, none of the circumstances raised by the Applicant in his second appeal would necessarily compel the IAD to exercise its discretion not to apply issue estoppel in this case. The IAD did not find the Applicant’s new evidence capable of altering the findings of the first proceeding. Moreover, it found that applying res judicata did not condone an improper process or work an injustice on the Applicant. In my view, this was not an irrational decision.

 

[38]           The parties were invited to submit a question for certification, but they declined.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

THIS COURT ORDERS THAT:

 

-         The application for judicial review is dismissed and no questions are certified.

 

 

“Simon Noël”

 

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET :                                         IMM-1642-06

 

STYLE OF CAUSE :                         AZIZUR RAHMAN v. MCI

 

 

PLACE OF HEARING :                   Montréal

 

DATE OF HEARING :                     25-OCT-2006

 

REASONS FOR JUDGMENT :      The Honourable Mr. Justice Simon Noël

 

DATED :                                            November 2, 2006

 

 

 

APPEARANCES :

 

Me Diane N. Doray,6855, Ave de l’Épée, Suite 203, Mtl, Qc, H3N 2C7 Tel. : 514-274-9393 Fax. :514-274-5614	For the Applicant
Me Claudia Gagnon, Justice Canada Tel. : 514-496-9240 Fax. : 514-496-7876	For the Respondent

 

SOLICITORS OF RECORD :

 

Me Pia Zambelli,6855, Ave de l’Épée, Suite 203, Mtl, Qc, H3N 2C7 Tel. : 514-274-9393 Fax. :514-274-5614	For the Applicant
Me Claudia Gagnon, Justice Canada Tel. :  514-496-9240 Fax. : 514-496-7876	For the Respondent