Docket: IMM-14668-23
Citation: 2024 FC 1897
Toronto, Ontario, November 26, 2024
PRESENT: The Honourable Mr. Justice A. Grant
BETWEEN: |
MERCY ADWOA NYARKOH |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] This case turns on the legal principle that parties should not usually be permitted to re-litigate claims that have already been finally decided.
[2] The Applicant in this matter submitted an application to sponsor her husband for permanent residence. This application was refused, and an appeal of that decision was dismissed by the Immigration Appeal Division [IAD] of the Immigration and Refugee Board [IRB]. Later, the Applicant submitted a new application to sponsor her husband, which was again rejected. This time, the IAD refused to consider the appeal because of the principal referred to above, known as res judicata.
[3] While I am sympathetic to the Applicant’s circumstances, I have concluded that the IAD’s decision was reasonable. As such, I dismiss this application for judicial review.
II. BACKGROUND
A. Facts
[4] The Applicant – Mercy Adwoa Nyarkoh – is a Canadian citizen. She applied to sponsor her husband, Kwaku Botwe Dickson, as a member of the Family Class in January 2017. The two have been married since October 28, 2016.
[5] Mr. Dickson is a citizen of Ghana, who arrived in Canada in 2013. Following his arrival, Mr. Dickson filed a claim for refugee protection based on his profile as a gay man. The Refugee Protection Division rejected his claim in February 2014, and the Refugee Appeal Division [RAD] confirmed this decision in June 2014. He applied to this Court for leave and judicial review of the RAD decision, but leave was denied in 2014. In early 2015, Mr. Dickson was called for an interview with the Canada Border Services Agency [CBSA] but did not attend. CBSA subsequently issued a warrant for his arrest in June 2015.
[6] Mr. Dickson met the Applicant on June 13, 2015. They were introduced by mutual friends.
[7] The Applicant did not know that Mr. Dickson identified as a gay man at the time of their meeting. They began a friendship, and when Ms. Nyarkoh learned about his sexual orientation in July 2015, she encouraged him to “give up his life of homosexuality.”
She invited Mr. Dickson to attend church with her, and after one sermon, Mr. Dickson allegedly decided to “abandon homosexuality.”
This was in August 2015.
[8] In September 2015, the relationship became romantic. In December 2015, the Applicant introduced Mr. Dickson to her family in Canada. By January 2016, the couple began to contemplate marriage. However, Ms. Nyarkoh’s family wanted the couple to wait to marry. As a result, they set their wedding plans for October 2016.
[9] In September 2016, Mr. Dickson was arrested at work, where he had taken on the assumed name of John Prempeh in order to avoid arrest and deportation. He was removed from Canada on October 15, 2016.
[10] On October 26, 2016, the Applicant travelled to Ghana to be with Mr. Dickson, and on October 28, 2016, the couple were married.
[11] Ms. Nyarkoh then applied to sponsor her spouse as a member of the Family Class in January 2017. The application was refused on the basis that the marriage was not genuine and that it was entered into for an immigration purpose. The IAD dismissed an appeal of this decision, finding as well that the marriage was not genuine and that the primary purpose of the marriage was for Mr. Dickson to obtain status in Canada under the Immigration and Refugee Protection Act [IRPA].
[12] In arriving at this conclusion, the IAD member identified various concerns. Amongst others, these concerns related to: the timing and development of the Applicant’s relationship with Mr. Dickson; Mr. Dickson’s lack of status in Canada when the couple met; and the sudden change of Mr. Dickson’s sexual orientation after one church sermon.
[13] The Applicant did not seek leave of this Court to judicially review this first IAD decision.
[14] Despite the negative decision, the couple’s relationship continued. The Applicant visited Mr. Dickson in Ghana on two occasions (from September 13, 2020 to August 2, 2021; and from April 11, 2022 to June 28, 2023), sent him financial support, and the two maintained frequent contact. Most importantly, for the sake of this application, the couple now have two children together.
[15] The Applicant filed a new spousal sponsorship application in August 2022. The application was again rejected. In notes entered into the Global Case Management System, which accompanied the decision, the Visa Officer observed that the same file was previously refused for the same reasons, and that the only difference was the length of the relationship and the presence of a child (at that time there was only one). The Officer found that neither of those elements had any impact on the second refusal factor, relating to the original purpose of the marriage.
[16] Shortly after the Applicant filed an appeal of this second decision, the IAD invited submissions from the parties on the question of whether the Division was barred from hearing the appeal due to the doctrine of res judicata.
[17] In her submissions, the Applicant argued that there was new evidence available that favoured the non-application of res judicata, namely the presence of a child born between the first IAD decision and the second spousal sponsorship application. On August 28, 2023, the Applicant filed additional evidence demonstrating that she was pregnant again, with a due date of December 2, 2023.
B. Decision under Review
[18] After considering the matter in chambers and without an oral hearing, the IAD dismissed the appeal for lack of justification based on the doctrine of res judicata.
[19] In arriving at this finding, the IAD Member outlined the prevailing jurisprudence on res judicata, and found that the necessary conditions for applying it were present in this case. The IAD also recognized that it had a discretion to hear the matter despite the doctrine, but found that there were no special circumstances that warranted an exception.
III. ISSUES and STANDARD OF REVIEW
[20] The broad issue that arises on this application is whether the IAD decision, and the reasons provided in support of that decision, were reasonable.
[21] The parties do not dispute that the appropriate standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 16, 23, 25 [Vavilov].
IV. ANALYSIS
A. Legal Framework
(1) Res Judicata
[22] The doctrine of res judicata is well established in the case law. In Danyluk v Ainsworth Technologies Inc., 2001 SCC 44 [Danyluk], the Supreme Court of Canada explained that its underlying purpose is to advance “finality in litigation.”
Litigants must “put their best foot forward to establish the truth of their allegations when first called upon to do so”
(Danyluk at para 18). Therefore, “an issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner.”
(Danyluk at para 18).
[23] The first step in the res judicata analysis is to determine whether the doctrine applies. It does when three conditions are met:
i)the same issue was decided in an earlier proceeding;
ii)the previous decision was final; and
iii)the parties are the same in both proceedings: Danyluk at para 25.
[24] However, the jurisprudence has also established that special circumstances can arise that may justify an exception to the application of the doctrine. These were set out by the Supreme Court of Canada in Toronto (City) v Canadian Union of Public Employees (CUPE), Local 79, 2003 SCC 63, as follows (at para 52):
i)when the first proceeding is tainted by fraud or dishonesty;
ii)when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or
iii)when fairness dictates that the original result should not be binding in the new context.
[25] In this case, the Applicant argued that the evidence of her ongoing relationship with Mr. Dickson and the birth of her first child should have triggered the decisive evidence exception.
(2) Genuineness and Purpose of the Marriage
[26] S.4(1) of the Immigration and Refugee Protection Regulations [IRPR] states that:
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.
[27] The meaning of the above provision is also well established; spousal sponsorship applications can only be approved if the applicant establishes both that a marriage is genuine and that it was not entered into for the primary purpose of acquiring immigration status. This is commonly referred to as the disjunctive test under s.4(1) of the IRPR.
B. The IAD’s Decision Was Reasonable
[28] The IAD commenced its analysis by considering the three res judicata factors outlined above. First, it found that the issues on appeal were the same as those determined by the first IAD panel. While the new evidence submitted in support of the second application – related to the duration of the relationship, and the birth of the Applicant’s first child – provided new information on the question of the genuineness of the Applicant’s marriage to Mr. Dickson, it did not address concerns regarding the original, primary purpose of the marriage.
[29] Second, the IAD Member noted that the 2019 IAD decision was final, as the Applicant had counsel and chose not to apply for leave and judicial review before this Court.
[30] Finally, the IAD Member noted that the parties are the same.
[31] Having found that the three criteria for res judicata were present, the IAD then turned its attention to the question of whether ‘special circumstances’ warranted exercising its discretion to hear the matter. This part of the decision constitutes the bulk of the IAD’s reasons. In concluding that such circumstances did not arise on the facts, the IAD again considered the new evidence, and also considered the Applicant’s argument that the 2019 IAD member had failed to apply the IRB Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression [the SOGIE Guidelines].
[32] The IAD concluded that the new evidence was not decisive or “practically conclusive of the matter”
, as required by the jurisprudence. In arriving at this conclusion, the IAD echoed the Visa Officer’s finding that while the new evidence may impeach the previous findings related to the genuineness of the marriage, it did not satisfactorily address the concerns related to its primary purpose.
[33] In arriving at this conclusion, the IAD noted that the assessment of the primary purpose “looks back to the parties’ intentions at the time of the marriage.”
In this respect, the IAD noted that the timeline of the Applicant’s relationship with Mr. Dickson was concerning, with “many significant events happening around the time of the marriage and [Mr. Dickson’s] removal from Canada, which point strongly in the direction of a marriage that was entered into for an immigration objective.”
This sequence of events leading up to the Applicant’s marriage to Mr. Dickson was not altered by either the subsequent duration of their marriage, or the birth of the couple’s children.
[34] On the argument related to the SOGIE Guidelines, the IAD Member found that they were not binding on IAD Members, and in any event, that the 2019 IAD member was mindful of the substance of those Guidelines, even if they were not explicitly considered.
[35] On judicial review, the Applicant argues that the IAD’s decision lacked sufficient analysis. She argues that the IAD erred in its consideration of the interplay between the two elements of the s.4(1) disjunctive test, and that its conclusions were inconsistent with this Court’s decisions in several cases, including Sami v Canada (Citizenship and Immigration), 2012 FC 539 [Sami]; Sandhu v Canada (Citizenship and Immigration), 2014 FC 834 [Sandhu]; Okonkwo v Canada (Citizenship and Immigration), 2023 FC 524; and Basanti v Canada (Citizenship and Immigration), 2019 FC 1068 [Basanti]. I disagree.
[36] The IAD identified the facts that were most relevant to the res judicata issue and reasonably applied those facts to the applicable legal principles. Contrary to the Applicant’s assertion, the IAD reasonably assessed the prevailing case law. For example, the IAD canvassed the jurisprudence and acknowledged that new evidence documenting a continuing relationship can, in some circumstances, show that the intent of the parties was not for an improper purpose. The IAD also considered cases where there was new evidence adduced in support of a second (or subsequent) sponsorship application related to the birth of children, and acknowledged that this can amount to strong evidence. However, the IAD also cited jurisprudence establishing that where the previous decision was based on clear indications of a marriage entered into for an improper purpose, it is less likely that this evidence will be sufficient. In order to be decisive new evidence, the IAD noted, such evidence must genuinely affect the evaluation of the intention of the individuals at the time of their marriage.
[37] In particular, the IAD relied on the decisions of the Federal Court in Vo v Canada (Citizenship and Immigration), 2018 FC 230 [Vo] and Tiwana v Canada (Citizenship and Immigration), 2016 FC 831 [Tiwana], for the proposition that decisions in these matters turn on their particular circumstances, most notably the interplay between the initial decision and the subsequent evidence. In describing the Tiwana decision, the Court in Vo stated (at para 46):
More helpful is this Court’s analysis in Tiwana. In that case, the IAD had concluded at the first IAD appeal that as a result of serious credibility concerns, the marriage was not genuine and had been entered into for the purpose of acquiring immigration status. On judicial review of the IAD application of issue estoppel to bar a subsequent appeal, this Court found the IAD’s decision to have been reasonable, despite evidence of a continued relationship, including the birth of a child, because the new evidence did not decisively speak to the IAD’s initial concerns, including those relating to credibility (Tiwana at paras 33-37). In other words, the applicant’s evidence of matters post-dating the marriage did not, in the circumstances of that case, decisively speak to the purpose of the marriage (Tiwana at paras 36-37).
[38] I have reviewed the IAD’s reasons holistically and contextually. In doing so, I find that I can understand the basis on which the decision was made, and that this basis was rationally connected to both the facts before it, and the applicable jurisprudence. It was reasonable for the IAD to conclude that cases such as Vo and Tiwana were better analogs to the matter before it than other cases, such as Sami or Sandhu, in which this Court found fault with the tribunal’s res judicata findings.
[39] On my review of the IAD’s reasons, I also find that it reasonably assessed the circumstances that may have warranted an exception to res judicata. The tribunal accurately considered the jurisprudence and reasonably concluded that: i) the facts underpinning the previous decision strongly supported the finding that the primary purpose of the marriage was to acquire status under the IRPA; and ii) the new information, as compelling as it may have been, was simply insufficient to modify those earlier findings: Basanti at para 30.
[40] As noted above, I am sympathetic to the Applicant’s situation, and to the situation of her two children. Humanitarian and compassionate considerations may well warrant her reunion with Mr. Dickson. Nevertheless, as I have concluded that the IAD’s determination in this matter was reasonable, I must dismiss this application for judicial review.
V. CONCLUSION
[41] For the above reasons, this application for judicial review is dismissed. The parties did not propose a question for certification and I agree that none arises.
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