http://caselaw.canada.globe24h.com/0/0/federal/immigration-and-refugee-board-of-canada/2011/07/26/begum-v-canada-citizenship-and-immigration-2011-87411-irb.shtml
A Poison letter story lol >>
Reasons for Decision
[1] Sultana BEGUM (the "appellant") appeals from the refusal of the sponsored application for permanent residence in Canada of her husband, Ataur Rahman SHAMIN (the "applicant").
[2] The application was refused in a letter dated June 7, 2010[1] because in the opinion of an immigration officer, the applicant’s marriage to the appellant was not genuine and was entered into primarily for immigration purposes. A previous similar application was refused on December 10, 2007 and the appellant appealed to the Immigration Appeal Division (the "IAD"). By decision and reasons signed on November 21, 2008,[2] the IAD determined the applicant was not a member of the family class in that the appellant did not establish that his marriage to the applicant created a genuine union not entered into primarily for immigration purposes. Therefore the IAD dismissed the appeal. The appellant’s application for judicial review was dismissed by the Federal Court on April 2, 2009.[3]
[3] In September 2009, the appellant sponsored a new application for permanent residence in Canada received on September 11, 2009. This appeal is from the refusal of the second application for permanent residence in Canada.
[4] As this appeal appears prima facie to be an attempt to re-litigate a matter which has already been heard and decided by the IAD, in a letter dated February 10, 2011, the IAD, on its own motion, invited the submission of evidence and arguments from the parties on the issue of whether this repeat appeal constitutes an abuse of process, or whether it ought to be dismissed for res judicata.
THE SUBMISSIONS
[5] On March 14, 2011, the appellant replied to the IAD’s request. Her counsel submitted that the doctrine of res judicata does not apply in this case for the following reasons: The second sponsorship application shows the existence of a continued relationship; a child was born to the appellant and the applicant since the decision of the IAD dismissing the appeal from the first refusal; the hearing before the IAD is de novo; the importance of the consideration of the poison pen letter in the first application.
[6] Counsel for the Minister filed submissions in response to the appellant’s submissions on March 24, 2011, arguing essentially that the birth of a child, in and of itself, does not constitute fresh new evidence of the genuineness of a relationship. He submits that the doctrine of res judicata applies to this case and this appeal should be dismissed.
[7] The appellant did not reply to the Minister’s submissions.
ANALYSIS
[5] The three requirements for issue estoppel/res judicata to apply, the same issue has been previously decided, the previous decision was final, and the parties to the present proceeding are the same parties to which the previous decision applied, are present in this case.
[6] The parties to the present proceedings are the same as before and the issue is the same. After a new interview with the applicant, a visa officer refused the application because in his opinion the applicant had not provided fresh new evidence of a genuine relationship. This issue has been decided by the IAD on November 21, 2008 and the Federal Court of Canada dismissed an application for judicial review of the IAD’s decision. Therefore the previous decision was final.
[8] The Supreme Court of Canada in Danyluk[4] has given clear direction that the rules governing res judicata should not be mechanically applied. Even if the criteria for res judicata are met, the issue of whether res judicata ought to be applied in any given case is within the IAD's discretion to determine.
[9] Generally, in cases where the criteria for res judicata are met, it will be applied, unless an overriding question of fairness is raised, and in order to avoid a potential injustice. Such circumstances would dictate that a rehearing is required.
[10] Even in cases where, as here, all the criteria for the application of res judicata are present, a repeat appeal will only be determined to be caught by res judicata if no special circumstances exist that would bring the appeal within the exception to the doctrine.[5] The exception of special circumstances extends, inter alia, to decisive, fresh evidence that could not have been discovered by the exercise of reasonable diligence in the first proceeding.[6] Decisive new evidence has been described as evidence "demonstrably capable of altering the result of the first proceeding".[7]
[11] In the case at bar, the new evidence proffered by the appellant essentially consists of additional letters, most of them not translated, and envelopes[8], additional phone bills[9], money transfers[10], pictures several of which were already part of the previous record and additional trips. I find that this new evidence tendered does not constitute decisive fresh evidence. More than additional letters, photographs and telephone calls to the applicant is required, in my view, to constitute decisive fresh evidence of a genuine marital relationship not entered into primarily for immigration purposes.
[12] The appellant appears to be seeking to have the panel consider the passage of time and the continuing contacts between her and the applicant. However, the mere passage of time does not amount to decisive new evidence.[11]
[13] The other new evidence, according to the appellant’s submissions is that she now has a child, born on November 5, 2010, although no birth certificate was provided nor was any evidence led concerning the paternity of the child. In any event, as held by the Federal Court of Canada, “the mere existence of a child does not, on its own, establish the genuineness of a relationship.”[12] Although this is a factor that needs to be taken into account, its evidentiary weight in this case must be assessed in the broader context of the genuineness of the relationship. In other words, is the existence of the child one of several new factors indicating that this is a genuine relationship? I find that it is not.
[14] The appellant also submits that a major difference between this application and the previous one is the importance of the consideration of a poison pen letter in the first application. According to her counsel’s submission: “It is important to highlight the fact that in the first IAD decision dated November 21, 2008, the core issue was related to a poison pen letter which was sent by the sister-in-law who was involved in a bitter divorce with the appellant’s brother”. However, this was clearly not the case. As indicated in the IAD’s previous decision, while the Panel looked at the two poison pen letters denouncing the appellant’s brother, it decided that the letters should not be given any weight in the assessment of the appellant’s marriage :
The Panel does not find that they [the poison pen letters] should be given any weight in the assessment of the genuineness of the appellant’s marriage to the applicant and of their intentions when they entered into the marriage as finding otherwise would amount to concluding that they are “guilty” by association.[13]
[15] The appellant’s counsel argues that a new hearing would allow for full review of the evidence. However, the appellant has not brought forth any new and decisive evidence. Therefore, I conclude that the exception of special circumstances has not been established and that the doctrine of res judicata applies in this case. Since I find that the doctrine of res judicata applies, there is no need for me to determine if this second appeal constitutes an abuse of process.
NOTICE OF DECISION
The appeal is dismissed for res judicata.
