IAD – MISREPRESENTATION – MARRIAGE OF CONVENIENCE - RES JUDICATA – ISSUE ESTOPPEL – BONA FIDES OF MARRIAGE SAME ISSUE IN SPONSORSHIP APPEAL AND IN MISREPRESENTATION REMOVAL ORDER APPEAL – MCI AND MPSEP ARE RELATED PARTIES – APPLICANT IS PRIVY TO THE DECISION MADE IN SPONSORSHIP APPEAL ALTHOUGH NOT A PARTY – DISCRETION NOT TO APPLY ISSUE ESTOPPEL EVEN WHEN PRE-CONDITIONS ARE MET - ADEQUATE INTERPRETATION – LINGUISTIC UNDERSTANDING BETWEEN THE PARTIES - IS GENUINENESS OF MARRIAGE ASSESSED SEPARATELY FROM MISREPRESENTATION OF GENUINENESS – WEIGHT TO BE GIVEN TO MISREPRESENTATION WHEN ASSESSING FACTORS IN H&C
(F.C., no. IMM-1478-14, IMM-3931-13, IMM-3932-13), Boswell, February 6, 2015; 2015 FC 157. The Applicant challenged the decision of the IAD dismissing an appeal against an exclusion order issued by the Immigration Division (ID). In addition there were separate applications against two interlocutory orders made by the IAD which were heard jointly with the challenge to the decision on the merits of the IAD appeal. The Applicant was sponsored for permanent residence by her Canadian spouse. The sponsorship application was initially refused because a visa officer was not satisfied the marriage was genuine. The Applicant’s spouse appealed that decision to the IAD and with consent of the Minister the appeal was allowed as the marriage was found to be genuine. One month after the Applicant became a permanent resident, in July 2003, her spouse sought a divorce, claiming that he and the Applicant separated shortly after they had married, in February 2001. The Applicant remarried six years later and in the course of sponsoring her current spouse declared the date of divorce from her first husband to be January 2004. As a result of this inconsistency, the Minister referred the matter to the ID where the Applicant was found to have misrepresented the bona fides of her marriage. The Applicant appealed the ID’s decision on misrepresentation to the IAD and argued that issue estoppel applied to preclude any question about the genuineness of her first marriage. The IAD found that issue estoppel did not apply as the issue in the sponsorship appeal was whether the marriage was genuine, while the issue in the misrepresentation appeal was whether the Applicant represented that it was genuine. Further, the IAD found the parties were not the same in that the sponsorship appeal was launched by the Applicant’s sponsor and not the Applicant, and further the Minister of Citizenship and Immigration (MCI) was a party on the sponsorship appeal while the misrepresentation appeal was between the Applicant and the Minister of Public Safety and Emergency Preparedness(MPSEP). The IAD also rejected an application by the Applicant to rehear evidence based on inadequate interpretation. With respect to the merits of the Applicant’s appeal, the IAD disbelieved the Applicant, finding that she did not intend to live with her sponsor as husband and wife when she came to Canada. The Applicant argues that the IAD; (1) erred with respect to its finding that issue estoppel did not apply; (2) erred in finding that the problems in the interpretation at the hearing did not cause any significant prejudice and that there was linguistic understanding between the Applicant and the interpreter; (3) erred by not separating the assessment of the genuineness of the marriage from the assessment of the misrepresentation that the marriage was genuine; and (4) improperly weighed the factors to be considered in H&C by discounting elements of establishment because they were achieved only by the initial misrepresentation. The Court found with respect to issue estoppel; (1) the misrepresentation analysis in this context requires an assessment of the bona fides of the marriage (Ramkissoon) and therefore the issue was the same in the marriage sponsorship appeal as in the misrepresentation removal order appeal; (2) while the Applicant is not the same person as her sponsor, the IAD should have considered whether that the Applicant was nonetheless privy to the sponsorship appeal before deciding that they were not the same party. While it is true that he Applicant’s sponsor was the one who appealed the refusal of the Applicant’s sponsorship application, it is only because he was the only one allowed to appeal but the Applicant had an interest in that proceeding. As to the IAD finding that the MCI and MPSEP are not the same party, the Court examined whether the MCI and MPSEP share a relevant relationship pertaining to the sponsorship appeal decision and noted that “the MCI tries to keep unqualified immigrants out, and the MPSEP evicts the ones who nevertheless make it in… they play different positions but are on the same team”. Additionally, it is artificial to treat then as completely different entities when by a simple executive action they could easily take on responsibilities that the other had been doing. However, despite these findings, the Court found that the IAD’s decision on issue estoppel as a whole was reasonable. The Court based this conclusion on an assumption that the IAD probably would have exercised its discretion to hear the case against the Applicant even it had been satisfied the pre-conditions to issue estoppel were met. The Court agreed with the IAD that it would undermine the Parliamentary intent underlying section 40 of the Act to hold that a previous IAD decision that a marriage is likely genuine is binding on future panels that are required to assess whether there was a material misrepresentation. With respect to the allegation of faulty interpretation, the Court found that the interpretation was not as precise as it could have been, however, despite the imperfections the Applicant always understood what was being said and was herself understood. The Court notes that the Applicant was right to point out that prejudice is not a requirement for finding that the interpretation was deficient (Tran). As for the Applicant’s argument that avenues of inquiry into the genuineness of the marriage and the misrepresentation should have been kept distinct (Ouk), the Court found there was little to be gained from conducting separate inquiries as the central finding of the IAD that the Applicant never intended to live with her sponsor as his wife almost automatically supports a finding of misrepresentation. With respect to the weighing of H&C factors, the Court notes that the process naturally involves comparing the factors against each other and that the fact that the Applicant might lose some of the profits that she gained from defrauding her ex-husband and deceiving the immigration authorities does not exactly cry out for humanitarian and compassionate relief. Application dismissed.
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