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Date: 20250321 |
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Docket: IMM-13762-23
Citation: 2025 FC 527 |
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Ottawa, Ontario, March 21, 2025 |
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PRESENT: The Honourable Madam Justice Heneghan |
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BETWEEN: |
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SUKHBIR KAUR DHILLON |
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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 |
REASONS AND JUDGMENT
[1] Ms. Sukhbir Dhillon (the “Applicant”
) seeks judicial review of the decision of the Immigration and Refugee Board, Immigration Appeal Division (the “IAD”
). In that decision, dated October 12, 2023, the IAD dismissed an appeal from the decision of an officer who refused the Applicant’s spousal sponsorship for permanent residence of her husband, Mr. Avtar Singh Sandhu, on the grounds that the marriage was not genuine or was entered into for the purpose of acquiring status in Canada, within the scope of subsection 4(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”
).
[2] The Applicant married her husband on October 10, 2018. On December 21, 2018, she submitted a spousal sponsorship application. This application was refused by an officer on the grounds that the marriage was not genuine. Upon appeal to the IAD, the refusal was upheld in a decision made on December 17, 2020.
[3] An application for leave and judicial review of the decision, in cause number IMM‑6799‑20, was dismissed at the leave stage on May 25, 2021.
[4] On or about May 30, 2022, the Applicant submitted a second spousal sponsorship application, containing updated information to support the genuineness of the marriage.
[5] On April 14, 2023, the second application was dismissed, again on the grounds that the marriage was not genuine and/or was entered into for the purpose of acquiring status.
[6] The Applicant appealed again to the IAD.
[7] The IAD dismissed the appeal upon the application of the principles of res judicata.
[8] The Applicant now argues that the IAD failed to consider the new evidence and did not understand it. She submits that the IAD did not “grapple”
with that evidence and consequently, made an unreasonable decision.
[9] The new evidence before the IAD consisted of documents detailing a trip to India by the Applicant, communications between the Applicant and her husband, medical records detailing the Applicant’s condition of depression, character references and personal letters, a joint bank account, and money transfers to the Applicant from her husband.
[10] The Applicant pleads that the IAD erred by failing to exercise its discretion to waive the application of the principle of res judicata.
[11] The Applicant further argues that the IAD unreasonably applied the principles of res judicata since the decision of the Officer was not the same as the decision that was first appealed. She contends that the Officer who made the second decision considered the issue of the husband’s motivation in marrying the Applicant, which was not considered in the first appeal.
[12] The Minister of Citizenship and Immigration (the “Respondent”
) begins his response with an objection to certain exhibits attached to the affidavit of the Applicant, filed as part of her application record. He objects to the inclusion of Exhibits A, B, C and E, on the grounds that this evidence was not before the decision maker.
[13] These exhibits are copies of the first spousal sponsorship application and subsequent appeal, the decision on the first sponsorship application, and the first application for leave and judicial review, respectively.
[14] Otherwise, the Respondent argues that the IAD reasonably exercised its discretion to apply the principles of res judicata and reasonably applied those principles. The Respondent argues that the IAD “considered”
the exercise of discretion but declined to exercise it, because there was no decisive evidence or special circumstances to warrant such exercise.
[15] The application of the principle of res judicata is discretionary; see the decision in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460.
[16] Following the decision of the Supreme Court of Canda in Canada (Citizenship and Immigration) v. Vavilov, [2019] 4 S.C.R. 653, the decision is reviewable on the standard of reasonableness.
[17] In considering reasonableness, the Court is to ask if the decision under review “bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant
factual and legal constraints that bear on the decision”; see Vavilov, supra, at paragraph 99.
[18] I do not agree with the Respondent’s objection to the inclusion of evidence that was not before the IAD. I refer to the decision of the Federal Court of Appeal in Ontario Assn. of Architects v. Assn. of Architectural Technologists of Ontario, 2002 FCA 218.
[19] As a general rule, “new”
evidence is permitted on an application for judicial review, in limited circumstances, including evidence to provide background information.
[20] That exception applies here. Exhibits A, B, C and E to the affidavit of the Applicant provide background to the current application for judicial review.
[21] According to the decision in Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248, the doctrine of res judicata require a party to establish three elements as follows:
1. that the same question has been decided;
2. the decision was final;
3. and the parties in both proceedings are the same.
[22] The question is the genuineness of the marriage, within the scope of subsection 4(1) of the Regulations. The decision of the first panel of the IAD is final since the application for leave and judicial review, in cause number IMM-6799-20, was dismissed at the leave stage. The parties before the IAD on appeal are the same ones who appeared before the first panel of the IAD, that is the Applicant and her husband.
[23] On the basis of the evidence before it, the application of the principle of res judicata by the IAD is reasonable.
[24] The Applicant argues that although each officer found the marriage not to be genuine, they did so for different reasons. The first officer noticed discrepancies in the evidence and the second officer focused on the motivations of the husband. However, the end result is the same: the marriage was found not to be genuine.
[25] I agree with the position of the Respondent that the new evidence submitted by the Applicant is not “practically conclusive”
of the issue before the IAD. That issue was whether the Applicant’s marriage with her husband was genuine. This question had been answered in the negative by the officer who reviewed the Applicant’s second spousal sponsorship application.
[26] The IAD found that the new evidence submitted by the Applicant was insufficient to overcome the concerns in the initial decision about the genuineness of the marriage.
[27] In Chotai v. Canada (Minister of Citizenship and Immigration), 2015 FC 1335, cited by the Respondent, Justice Phelan found that pursuant to subsection 4 (1) of the Regulations, the genuineness of a marriage is to be assessed at the time it was entered into.
[28] In my opinion, the IAD’s conclusion that the new evidence did not overcome the original concerns was reasonable.
[29] I am satisfied that the decision of the IAD meets the applicable standard of review, it is “transparent, intelligible and justified”
. There is no basis for judicial intervention. The application for judicial review will be dismissed.
[30] There may be other options available to the Applicant and her husband under the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
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