Docket: IMM-968-16
Citation:
2016 FC 1391
Ottawa, Ontario, December 19, 2016
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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MOHAMMAD UMAR
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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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JUDGMENT AND REASONS
I.
Overview
[1]
This is a matter of sponsorship in respect of
marriage. The issue is one of sufficiency of evidence to ensure, not only that
the marriage is genuine, but, that it is monogamous.
II.
Nature of the Matter
[2]
This is an application for judicial review by
the Applicant pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] of a decision by the Immigration
Appeal Division [IAD] dated February 19, 2016, which dismissed the
Applicant’s appeal relating to the refusal of the application for permanent
residence as a member of the family class on the basis of application of the res
judicata doctrine.
III.
Facts
[3]
The Applicant, born in Ghana in 1962, is a
citizen of Canada. He is the sponsor in the application for permanent residence
as a member of the family class made by his spouse, a citizen of Ghana born in
1981.
[4]
The Applicant alleges following. He was married
to a first spouse on February 4, 1990. They separated in 2000 and divorced
in Ghana on June 17, 2003. The notice of divorce was registered on
August 17, 2007.
[5]
The Applicant met his second spouse over the
phone on November 30, 2003. They were engaged on February 14 or
April 14, 2004. They first met on January 24, 2005. They were married
in Ghana on February 27, 2005.
[6]
The Applicant first tried to sponsor his spouse
for permanent residence in 2008. A Visa Officer refused the sponsorship
application on April 28, 2009, on the following grounds:
Based on your interview at our office and a
review of the documentation submitted, I am not satisfied that your
relationship with your sponsor is genuine. In addition, I am not satisfied that
your marriage is valid. You provided a divorce certificate between your sponsor
and his previous spouse which was issued after the current marriage certificate.
You have also provided statutory declarations in support of your sponsor’s
divorce and your current marriage which was declared and signed by deceased
persons. I am not satisfied that these statutory declarations are valid. You
were advised of the concerns during your interviews, but you were unable to
convince me that they were unfounded. I am therefore not satisfied that your
relationship was not entered into for the purpose of gaining entry to Canada.
As a result, for the purpose of the regulations, you are not considered to be a
member of the family class.
[7]
The Applicant appealed the refusal before the
IAD pursuant to subsection 63(1) of the IRPA and was heard on May 31,
2011. The appeal was dismissed by the IAD and the Visa Officer’s decision was
upheld on July 14, 2011. The Applicant did not seek judicial review of
this decision before the Federal Court.
[8]
The Applicant filed a second sponsorship for his
spouse’s permanent residence application. A second Visa Officer refused the
sponsorship on February 24, 2014, on the following grounds:
Based on a review of the documentation
submitted, I am not satisfied that your relationship was not entered into for
the purpose of gaining entry to Canada and I am not satisfied your relationship
with your sponsor is genuine… As a result, for the purpose of the Regulations,
you are not considered to be a member of the family class.
[9]
The Applicant again appealed the refusal of his
spouse’s application for permanent residence as a member of the family class
before the IAD on March 20, 2014.
IV.
Decision
[10]
On July 21, 2014, the IAD sent an early
review letter to the parties and asked for submissions regarding the
application for res judicata to the second appeal by the Applicant.
[11]
On February 11, 2016, the IAD dismissed the
appeal.
[12]
The IAD found that res judicata did apply
to the appeal, as the three preconditions were met. The Applicant had simply
filed another sponsorship application, rather than asking for judicial review
of the first IAD decision in 2011 or seeking a valid divorce from his first
spouse and remarrying his second spouse. His second application for sponsorship
did not overcome the earlier findings of the 2011 IAD decision and was again
refused by a second Visa Officer in 2014.
[13]
The IAD found that the Applicant did not produce
new evidence that could be considered as constituting special circumstances
capable of overriding res judicata; the Applicant did not address the res
judicata issue, rather producing new evidence to show that his relationship
was genuine. Consequently, the IAD decided there were no circumstances
warranting the panel’s discretion not to give effect to the res judicata
principle.
V.
Submissions of the Parties
[14]
The Applicant claims that the IAD rejected the
validity of his marriage without regard to the new evidence produced. He argues
that the IAD decision was profoundly discriminatory, that it violates the right
to family life and the right to equality, and that it is based on erroneous
conclusions of fact without any regard to the evidence before the immigration
agent. Finally, the Applicant argues that the IAD erred in applying the res
judicata principle. Its application took place at the expense of justice
and was applied mechanically, since the IAD did not take into account the
entirety of the circumstances.
[15]
The Defendant argues that the IAD decision was
reasonable, since no decisive new evidence was produced that could not have
been adduced during the first proceedings with reasonable diligence. The
Applicant has produced new versions of documents previously submitted to the
IAD and a legal opinion although they could have been presented to the first
panel with reasonable diligence.
VI.
Issues
[16]
This matter raises the following issue: Did the
IAD err in its finding that the res judicata ought to be applied?
[17]
This issue should be reviewed on a standard of
reasonableness (Chotai v Canada (Citizenship and Immigration), 2015 FC
1335 at para 16).
VII.
Analysis
[18]
The IAD determined that the three preconditions
of res judicata, as established by the Supreme Court of Canada, were met
in the Applicant’s case:
(1) that the same question has been
decided;
(2) that the judicial decision which
is said to create the estoppel was final; and,
(3) that the parties to the judicial
decision or their privies were the same persons as the parties to the
proceedings in which the estoppel is raised or their privies.
(Danyluk v Ainsworth Techonologies Inc.,
[2001] 2 S.C.R. 460, 2001 SCC 44 at para 25)
[19]
In his memorandum the Applicant does not argue
that these criteria were not met. Rather, he claims that the doctrine of res
judicata should not have been applied, considering the circumstances of the
case.
[20]
It is of constant jurisprudence that the
doctrine of res judicata must not be applied automatically:
… The decision-maker must then apply the
doctrine of res judicata unless some special or particular
circumstances warrant hearing the matter on the merits. In determining
whether such circumstances exist, it is necessary to ask whether, taking into
account all of the circumstances, application of the principle of res
judicata would work an injustice (Apotex Inc. v. Merck & Co.
(C.A.), Danyluk). [The Court’s emphasis]
(Mohammed v Canada (Minister of
Citizenship and Immigration), 2005 FC 1442 at para 12)
[21]
In the case before this Court, no special or
particular circumstances warranted that the IAD would hear the matter on the
merits.
[22]
In the Applicant’s first sponsorship
application, the Visa Officer and the IAD referred to the following
irregularities as understood on the officer’s examination: a divorce
certificate between the Applicant and his previous spouse was issued after his
current marriage certificate and statutory declarations in support of the
Applicant’s divorce and his current marriage were declared and signed by
deceased persons.
[23]
In his second sponsorship application, the
Applicant submitted a new version of the same documents, but removed the
discrepancies that had been remarked upon by the first Visa Officer in 2009 and
by the first IAD panel in 2011.
[24]
The Court finds it was reasonable for the IAD to
determine that res judicata ought to apply in this case, since the
Applicant produced new evidence mostly showing that his relationship to his
spouse was genuine, but not that it is monogamous, and that no special or
particular circumstances warranted that the IAD would hear the matter on the
merits.
VIII.
Conclusion
[25]
The application for judicial review is
dismissed.
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