Dhaliwal v. Canada (Public Safety and Emergency Preparedness)

Dhaliwal v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2015-02-06
Neutral citation
2015 FC 157
File numbers
IMM-1478-14, IMM-3931-13, IMM-3932-13
Decision Content
Date: 20150206
Dockets: IMM-1478-14
IMM-3931-13
IMM-3932-13
Citation: 2015 FC 157
Ottawa, Ontario, February 6, 2015
PRESENT: The Honourable Mr. Justice Boswell
BETWEEN:
HARPREET KAUR DHALIWAL
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
JUDGMENT AND REASONS
I. Nature of the Matter and Background [1] The Applicant’s appeal from an exclusion order was dismissed by the Immigration Appeal Division [IAD] of the Immigration and Refugee Protection Board [Board]. Pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act], the Applicant now applies for judicial review of that decision (Court File No. IMM‑1478-14) and of two interlocutory rulings by the IAD that rejected her claims of issue estoppel (Court File No. IMM-3931-13) and inadequate interpretation (Court File No. IMM-3932-13). This Court ordered that these three applications for judicial review be heard together.
[2] The Applicant seeks slightly different relief in each application. In the issue estoppel application, she asks the Court to set aside the decision and allow the application outright, or alternatively, return it to the IAD and direct that issue estoppel applies. In the inadequate interpretation application, the Applicant requests that her earlier testimony be struck from the record and that her evidence be heard again by another panel. In the merits application, the Applicant seeks an order setting aside the decision and returning the matter to a different member of the IAD with a direction that the case be re-determined in accordance with the law.
[3] The Applicant is a woman from India who, on January 14, 2001, married a Canadian citizen named Harlakhbir Dhaliwal. Shortly thereafter, Mr. Dhaliwal sponsored the Applicant’s application for permanent residence in Canada. The sponsorship application was initially refused because a visa officer was not satisfied that the Dhaliwals’ marriage was genuine, but Mr. Dhaliwal appealed that decision to the IAD on May 2, 2002. With the consent of the Minister of Citizenship and Immigration [MCI], the IAD ordered on November 4, 2002, that the refusal of the sponsorship application was invalid [the 2002 Decision] and the Applicant became a permanent resident of Canada on July 24, 2003.
[4] About a month later, Mr. Dhaliwal sought a divorce from the Applicant in the British Columbia Supreme Court [BCSC], claiming that he and the Applicant had been separated since February 28, 2001. The Applicant did not defend the divorce action and their marriage was dissolved on November 29, 2003. The Applicant claims that she did not learn about the divorce until October, 2006. The Applicant later sought (after the exclusion order referred to below) to have this divorce set aside, but her application to the BCSC was dismissed by that court in reasons rendered on July 31, 2013 (see: Dhaliwal v Dhaliwal, 2013 BCSC 1376, 36 RFL (7th) 397 [Dhaliwal (BCSC)]).
[5] On February 25, 2007, the Applicant married Navdeep Singh, a man who came to Canada as a temporary foreign worker employed by a first cousin of the Applicant’s father. The Applicant and Mr. Singh have had two children together, both of whom were born in Canada.
[6] Mr. Singh lost his status in Canada, but the Applicant applied to sponsor him on September 4, 2007, declaring that January 22, 2004, was the applicable date of her divorce and separation from her first husband. The discrepancies between that date (January 22, 2004) and the date of separation stated in the divorce proceedings in the BCSC (February 28, 2001) triggered a review of the Applicant’s file by Citizenship and Immigration Canada [CIC]. On July 8, 2009, an immigration officer at CIC Mississauga decided that the Applicant’s first marriage was “only entered into for Harpreet Kaur Dhaliwal to gain entry into Canada as a permanent resident.” Pursuant to subsection 44(1) of the Act, the officer therefore recommended that Ms. Dhaliwal be directed to an admissibility hearing for misrepresentation contrary to paragraph 40(1)(a) of the Act.
[7] Pursuant to subsection 44(2) of the Act, the Minister of Public Safety and Emergency Preparedness [MPSEP] then referred the matter to the Immigration Division of the Board [IDB], which ultimately agreed and issued an exclusion order on December 21, 2010. The IDB found that the Applicant’s “marriage to Harlakhbir Singh Dhaliwal was not genuine and was entered into for the purpose of securing permanent residence in Canada,” which meant that she violated paragraph 40(1)(a) of the Act since misrepresenting “the bona fides of the marriage induced an error in the administration of the Act.”
[8] The Applicant appealed the IDB’s decision to the IAD. After she gave her evidence in Punjabi at a hearing on July 30, 2012, the Applicant obtained new counsel. Among other things, her new counsel made two interlocutory applications: one contended that the 2002 Decision estopped the Minister from now impugning the genuineness of the Applicant’s first marriage; and the other argued that the interpretation of the Applicant’s evidence at the July hearing was faulty.
II. The Decisions under Review A. The Interlocutory Decisions [9] The IAD disposed of both interlocutory applications in reasons dated May 17, 2013 [2013 Decision].
[10] The IAD rejected the Applicant’s argument that issue estoppel applied to preclude any question about the genuineness of her marriage to Mr. Dhaliwal. In its view, the 2002 Decision was about whether the marriage was genuine, while the present proceeding was about whether the Applicant misrepresented that it was genuine. Although these were related questions, the IAD was not satisfied that it was the same issue since different considerations are engaged (citing Ramkissoon v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 971 (QL) at paragraph 8, 6 Imm LR (3d) 223 (TD) [Ramkissoon]). Moreover, the 2002 proceeding was between the Applicant’s sponsor and the MCI, whereas the 2013 proceeding was between the Applicant and the MPSEP. The IAD thus found that the parties were not the same and, consequently, the pre-conditions to issue estoppel were not met. The IAD further observed that it would undermine Parliament’s intent relating to section 40 of the Act if a previous IAD finding that a marriage was likely genuine prevented later panels of the IAD from deciding whether there had been a material misrepresentation with respect to that issue.
[11] With respect to the interpretation issue, the Applicant had supplied a transcript of the proceedings prepared by Ms. Johar that included translations of everything said in Punjabi by both the Applicant and the interpreter [Johar Transcript]. The Applicant identified a number of allegedly problematic errors, but the IAD was “satisfied that they did not have a significant impact on the proceedings, nor did they cause any significant prejudice to the appellant.” The IAD also did not consider the interpreter’s failure to fully interpret some exchanges between the IAD member and the Applicant’s then-counsel to be problematic. Ultimately, the IAD member found that oral interpretation will always be imperfect, but it is adequate so long as there is linguistic understanding, and he was satisfied that such understanding was present. The IAD thus denied the Applicant’s request to re-hear her evidence.
B. The Merits Decision [12] In reasons dated February 6, 2014, the IAD refused the Applicant’s appeal.
[13] The IAD disbelieved the Applicant, ultimately finding that she did not intend to live with her sponsor as husband and wife when she came to Canada. Rather, the IAD believed the Applicant’s former husband and sponsor when he testified that they had never consummated the marriage and that the Applicant told him that she did not want to be his wife as soon as she arrived in Canada. Since he was legally and culturally responsible for her, however, he put the Applicant up with his parents in Kelowna, British Columbia, for a while, but he moved into his business address for the duration of her stay there.
[14] The IAD gave a number of reasons for doubting the Applicant’s story that she thought she was in a valid marriage until October, 2006. First, she said that she could read English well in her application for permanent residence, and she was served with the divorce papers shortly after arriving in Canada. A few months later, on January 22, 2004, she departed for a year-long trip to India without her husband, and when she returned to Canada in January, 2005, she went to live with her father’s first cousin in Brampton, Ontario. Although she claimed that her sponsor kept in touch with her up until this time and promised to come pick her up, the IAD did not believe that Mr. Dhaliwal would pretend to be married to someone whom he had validly divorced a year earlier. Moreover, when she purportedly lost contact with Mr. Dhaliwal soon after her return to Canada, the Applicant did almost nothing to find him. The Applicant’s claim that she was surprised to discover she was “fraudulently” divorced in October, 2006, was belied by the fact that she did nothing to challenge the divorce order until 2013, after she was ordered removed from Canada. Even in her application to sponsor Mr. Singh, the Applicant gave dates that were inconsistent with this purported belief that she was divorced in 2006 by stating that the applicable date of divorce or separation was January 22, 2004. Consequently, the IAD was convinced that the Applicant never intended to live with her sponsor in Canada, and her misrepresentation to the contrary legally justified the exclusion order.
[15] The IAD then considered whether it should grant special humanitarian and compassionate relief under paragraph 67(1)(c) of the Act, stating that there needs to be compelling reasons to do so or else paragraph 40(1)(a) would become meaningless. The IAD found there were no such reasons here. Rather, the Applicant did not regret her misrepresentations and instead chose to lie even more. Although she was established here, the Applicant had spent her formative years in India and should have no trouble re-integrating. Furthermore, the IAD considered it likely that the Applicant’s new husband and children would go with her, and the IAD did not consider the support from her father’s first cousin and her community in Canada to be compelling in these circumstances. The Applicant would have to quit her job and sell her house, but the only reason she had these things to begin with was because she lied to get into the country. In any event, the IAD determined that this was not an important factor since she could likely get another job in India and had enough equity in the house to help her settle there.
[16] The IAD also considered the best interests of the children. The Applicant’s children were established here, but the IAD noted that they were still young and would likely adapt to life in India. The IAD was also unwilling to take judicial notice that the Applicant’s daughter would face discrimination and violence as a woman. Although the IAD accepted that it would be in the children’s best interests to remain in Canada, this was not enough to overcome the many negative considerations which weighed against the Applicant.
III. Issues [17] The Applicant submits that her three applications raise numerous issues, but the primary issues can be reduced to the following:
1. What is the standard of review for each issue?
2. Did the IAD unlawfully refuse to apply issue estoppel?
3. Did the IAD unlawfully refuse the Applicant’s request for a re-hearing?
4. Did the IAD unlawfully affirm the exclusion order?
5. Did the IAD unlawfully refuse to grant humanitarian and compassionate relief?
IV. Analysis A. What is the standard of review? [18] Where previous cases have satisfactorily resolved the standard of review for particular issues, it is unnecessary to repeat that analysis (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraphs 57, 62, [2008] 1 SCR 190 [Dunsmuir]).
(1) Issue Estoppel [19] The Applicant contends that whether the preconditions to issue estoppel are met is a question of law reviewable on the correctness standard (Rahman v Canada (Minister of Citizenship and Immigration), 2006 FC 1321 at paragraph 12, 302 FTR 232 [Rahman]). The Respondent agrees that the Court must ensure that the IAD selects the correct test for issue estoppel, but states that the reasonableness standard should apply to the IAD’s application of the test.
[20] In Rahman at paragraphs 12-13, Noël J. said the following about the standard of review for the application of issue estoppel by the IAD:
[12] Whether the preconditions to the operation of issue estoppel were met is a question of law. The issue affects the individual Applicant's procedural rights and the IAD has no greater expertise in applying the doctrine relative to the Court's expertise in this area of the law. These factors point toward a strict standard of review. Therefore, the appropriate standard of review of the IAD's res judicata analysis at the first stage is correctness […].
[13] Conversely, the second-step involves an exercise of discretion and a weighing of relevant factors to determine whether special circumstances warrant the non-application of issue estoppel in this case. Discretionary factors attract a more deferential review […]. Therefore, patent unreasonableness is the appropriate standard of review for the second-step. [Citations omitted]
[21] Rahman has occasionally been followed by this Court post-Dunsmuir, albeit without reference to the abolished patent unreasonableness standard for the second step (see e.g. Chéry v Canada (Citizenship and Immigration), 2012 FC 922 at paragraph 14, 416 FTR 14).
[22] In my view, however, the standard of review for the first step of the issue estoppel analysis has also been overtaken by recent cases from the Supreme Court. In Canada (Director of Investigation and Research) v Southam Inc (1996), [1997] 1 SCR 748 at paragraph 35, 144 DLR (4th) 1, the Supreme Court stated as follows: “questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.” Therefore, while selecting the test for issue estoppel is a question of law, whether the preconditions to the operation of issue estoppel were met is a question of mixed law and fact. For these types of questions, the reasonableness standard should be presumed in any case where the legal issues cannot be readily extracted (Dunsmuir at paragraph 53).
[23] Furthermore, although the doctrine of issue estoppel has procedural benefits for the winning parties to the litigation (see: Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 at paragraph 18, [2001] 2 SCR 460 [Danyluk]; and Penner v Niagara (Regional Police Services Board), 2013 SCC 19 at paragraph 29, [2013] 2 SCR 125 [Penner]), I am not convinced that whether each particular requirement is met can be collapsed into a single issue of procedural fairness. For instance, the IAD could find that someone whose previous sponsorship application failed had changed his name and so was actually the same party as before. That would be a purely factual determination, and I do not think the correctness standard should apply only because it was made to serve a procedural test.
[24] In the matter at hand, the pre-conditions to issue estoppel are neither obvious nor readily ascertained from the record. All of the disputed pre-conditions are, ultimately, questions of law, but ones that would normally attract deference to the extent that they involve the interpretation of the IAD’s enabling statute (Dunsmuir at paragraph 54). All the other factors also point to deference (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraphs 54-58, [2009] 1 SCR 339 [Khosa]). Therefore, it is my view that the reasonableness standard applies when reviewing the IAD’s application of both steps of the issue estoppel analysis.
(2) Interpretation Issues [25] As to the inadequate interpretation issues, the parties agreed that the standard of review for deciding whether prejudice is a requirement is correctness, but the standard for assessing the adequacy of the interpretation is reasonableness. In my view, however, the standard of review for all aspects of this issue is one of correctness. Every aspect of this issue is about procedural fairness and access to a constitutional right (Khosa at paragraph 43; Dunsmuir at paragraph 58).
[26] Indeed, although my colleague Mr. Justice Sean Harrington has queried whether the quality of interpretation should be reviewed on the reasonableness standard (see: Sohal v Canada (Public Safety and Emergency Preparedness), 2011 FC 1175 at paragraphs 12-13 [Sohal]), even he applied a correctness standard in Sohal and that appears to be the trend for decisions of the Board (see: e.g. Kamara v Canada (Citizenship and Immigration), 2011 FC 243 at paragraph 34, 385 FTR 122 [Kamara]; Dhaliwal v Canada (Citizenship and Immigration), 2011 FC 1097 at paragraph 12; Singh v Canada (Citizenship and Immigration), 2010 FC 1161 at paragraph 2(a); Licao v Canada (Citizenship and Immigration), 2014 FC 89 at paragraph 18, 303 CRR (2d) 228). Accordingly, the IAD’s decision with respect to the interpretation issues raised by the Applicant should be reviewed on a standard of correctness.
(3) The Merits [27] The Applicant argues that correctness is the standard of review with respect to whether the existence of corroborating documentary evidence can rescue the Applicant’s lack of credibility, the selection of criteria to discern the genuineness of a marriage, and the IAD’s interpretation of section 40 of the Act (citing Ouk v Canada (Citizenship and Immigration), 2007 FC 891 at paragraph 10, 316 FTR 15 [Ouk]; and Khan v Canada (Minister of Citizenship and Immigration), 2008 FC 512 at paragraph 22). For the remaining issues about the H&C determination and the misrepresentation, the Applicant acknowledges that reasonableness is the standard (citing Dunsmuir at paragraph 53).
[28] The Respondent submits that the appropriate standard of review for the IAD’s application of section 40 of the Act is one of reasonableness (citing Sidhu v Canada (Minister of Citizenship and Immigration), 2014 FC 176 at paragraph 16, 23 Imm LR (4th) 249; and Sidhu v Canada (Minister of Citizenship and Immigration), 2014 FC 419 at paragraph 12). In addition, the Respondent argues that the IAD’s factual findings and determinations, such as whether a marriage is genuine, deserve deference from the Court (citing Khera v Canada (Citizenship and Immigration), 2007 FC 632 at paragraph 7 [Khera]; Ekici v Canada (Minister of Citizenship and Immigration), 2009 FC 1133 at paragraphs 22-23 [Ekici]; and Bin Chen v Canada (Minister of Citizenship and Immigration), 2008 FC 1227 at paragraph 8, 75 Imm LR (3d) 282).
[29] I agree with the Respondent that the appropriate standard for review of the IAD’s decision on the merits of this matter is one of reasonableness. Although the Applicant argues that the IAD misunderstood the law on various points, her arguments rely not on any misstatements of the law but on inferences from the reasons and assumptions about the evidence. For instance, the Applicant claims that the IAD failed to understand that documentary evidence can prove a claim even when an applicant otherwise seems to be uncredible, but that rests on assertions that the documentary evidence in this case was credible and indisputably proved that the marriage was genuine. Weighing that evidence and assessing its credibility, however, are obviously factual questions on which the IAD deserves deference (see e.g. Aguebor v Canada (Minister of Citizenship and Immigration) (1993), 160 NR 315 at paragraph 4; Singh v Canada (Minister of Employment and Immigration) (1994), 169 NR 107 at paragraph 3; and Ekici at paragraphs 22-23). At most, this issue and the others raised by the Applicant are questions of mixed fact and law from which the legal questions are not extricable, and the reasonableness standard should apply (Dunsmuir at paragraph 53; Khosa at paragraphs 52-58).
[30] This means that the IAD’s decision on the merits should not be disturbed by this Court if it is justifiable, transparent, understandable, and falls within a range of outcomes which are defensible in respect of the facts and law (Dunsmuir at paragraph 47). Those criteria are met so long as “the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes” (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paragraph 16, [2011] 3 SCR 708)
B. Did the IAD unlawfully refuse to apply issue estoppel? (1) The Applicant’s Arguments [31] Although the IAD applied the right test for issue estoppel from Angle v Canada (Minister of National Revenue) (1974), [1975] 2 SCR 248, 47 DLR (3d) 544 [Angle], the Applicant argues that it was wrong for the IAD to find that the 2002 Decision and its 2013 Decision did not involve the same issue. The IAD would not have allowed the appeal in 2002 if the marriage was not genuine, and that settles the 2013 Decision too since the Applicant says she cannot have misrepresented the genuineness of the marriage if her marriage was, in fact, genuine (Canada (Citizenship and Immigration) v Peirovdinnabi, 2010 FCA 267 at paragraphs 4-5, 409 NR 161 [Peirovdinnabi]). This error, the Applicant says, is fatal to the 2013 Decision.
[32] The Applicant also contends that the IAD was wrong to find that the mutuality requirement was not satisfied. According to the Applicant, Angle clearly states that issue estoppel applies not just to parties, but to their privies. Although the 2002 Decision dealt with an appeal by Mr. Dhaliwal, it was the Applicant’s permanent residence which had been denied and which was being appealed. According to the Applicant, she is clearly privy to that appeal as her sponsor was representing her interests.
[33] Furthermore, the Applicant states that there is no relevant difference between the MCI and the MPSEP. Whatever their different responsibilities, both the MCI and the MPSEP represent the Crown and they are in turn represented by the Department of Justice. They had a full and fair opportunity to impugn the genuineness of the Applicant’s first marriage at the time of the 2002 Decision, and the Applicant argues they should not get another chance.
(2) The Respondent’s Arguments [34] The Respondent defends the IAD’s decision that the 2002 Decision and its 2013 Decision did not involve the same parties. The Applicant’s sponsor was exercising his own rights in the first appeal to the IAD, and the fact that it might benefit the Applicant did not make her privy to the matter as that term is defined in Black’s Law Dictionary, 9th ed., sub verbo “privy”. Moreover, the MCI and the MPSEP have different responsibilities and do not have identical legal interests under the Act.
[35] The Respondent contends that the IAD rightly observed that the genuineness of the marriage is but one of several issues in the 2013 Decision (Ramkissoon at paragraph 8), including misrepresentations about the amount of time that the Applicant cohabited with her first husband. The issues in the 2013 Decision are, the Respondent submits, therefore broader than those to which the MCI consented to in the 2002 Decision.
(3) Analysis [36] As the IAD recognized, there are two branches of res judicata. The first branch is cause of action estoppel, which “precludes a person from bringing an action against another when that same cause of action has been determined in earlier proceedings by a court of competent jurisdiction” (Angle at 254). The second branch is issue estoppel, which applies to separate causes of action and “extends to the material facts and the conclusions of law or of mixed fact and law ("the questions") that were necessarily (even if not explicitly) determined in the earlier proceedings” (Danyluk at paragraph 24).
[37] In Penner, the Supreme Court of Canada succinctly summarized the test for issue estoppel at paragraph 29: “a party may not relitigate an issue that was finally decided in prior judicial proceedings between the same parties or those who stand in their place. However, even if these elements are present, the court retains discretion to not apply issue estoppel when its application would work an injustice.” There is no question that issue estoppel can also apply to administrative decision-makers such as the IAD (Danyluk at paragraph 21; Rahman at paragraph 18), and it is uncontested that the 2002 Decision was a final decision.
[38] The IAD found that the 2002 Decision and the 2013 Decision did not address the same issue and did not involve the same parties. The Applicant argued that if either finding is overturned, the entire decision must fall, but I disagree. All the pre-conditions to issue estoppel must be met before issue estoppel can apply, and the IAD would have to be wrong about all of such conditions before the 2013 Decision could be disturbed.
[39] In the matter at hand, the IAD said that the two proceedings leading to the 2002 Decision and the 2013 Decision did not address the same question: the original appeal dealt with whether the Applicant’s marriage to Mr. Dhaliwal was not genuine or entered into primarily for the purpose of acquiring any status or privilege under the Act; whereas the present proceedings were about something quite different, i.e., whether there had been a material misrepresentation by the Applicant.
[40] However, Ramkissoon expressly recognizes (at paragraph 8) that the misrepresentation analysis in this context “requires an assessment of the bona fides of the marriage and whether it was entered into by the applicant with the intention of residing with [her sponsor].” That was the dispositive issue in the IBD’s 2013 Decision, which found that the Applicant’s “marriage to Harlakhbir Singh Dhaliwal was not genuine and was entered into for the purpose of securing permanent residence in Canada.”
[41] That finding was clearly the issue in the 2002 Decision as well. The officer who initially refused the Applicant’s application for permanent residence told her that it was because: “I am not satisfied that the primary reason for your marriage to your sponsor [i]s other than for the purpose of your gaining admission to Canada and that you have the intention of residing permanently with your sponsor.” Although the 2002 Decision that reversed this determination did not expressly say that the marriage was genuine, that is irrelevant since issue estoppel applies to any issue necessarily determined in the earlier proceedings (Danyluk at paragraph 24). Had the finding of non-genuineness of the marriage still stood, the Applicant would never have received permanent resident status.
[42] Consequently, while it was open to the IAD to find that other issues were raised too, it was unreasonable for the IAD to decide that this particular issue was not the same as that in the 2002 Decision.
[43] The IAD also found that the Applicant is not the same person as her sponsor, but does not seem to have considered whether the Applicant was nonetheless privy to the 2002 Decision. Privity is an elastic concept that can only be decided on a case-by-case basis (Danyluk at paragraph 60). In Carl Zeiss Siftung v Rayner & Keeler Ltd (No 2) (1966), [1967] 1 AC 853, [1966] 2 All ER 536 (UKHL), which is the case from which the Supreme Court of Canada adopted the test for issue estoppel in Angle at 254, Lord Reid said (at page 910) that privity can arise in many ways, but it is “essential that the person now to be estopped from defending himself must have had some kind of interest in the previous litigation or its subject-matter.”
[44] Here, it was unreasonable to find that the Applicant was not privy to the 2002 decision. It is true that the Applicant’s sponsor was the one who appealed the refusal of the Applicant’s sponsorship application, but that is because he was the only one allowed to appeal (Act, s 63(1); Immigration Act, RSC 1985, c I-2, s 77(3) (as it appeared on 2 May 2002)). Because of paragraph 72(2)(a) of the current Act, applicants are not even allowed to independently seek judicial review when their applications for permanent residence are refused; they must rely entirely on their sponsor to challenge most negative decisions (Somodi v Canada (Citizenship and Immigration), 2009 FCA 288, [2010] 4 FCR 26 [Somodi]). The Federal Court of Appeal justified that result in Somodi (at paragraph 29) by observing that “on a family sponsorship application, the interests of the parties are congruent” (emphasis added). Since only the sponsor was allowed to appeal the decision and represent the Applicant’s interests in obtaining permanent residence, I do not think it defensible to say that she was not privy to the 2002 Decision.
[45] The IAD also found that the MCI was not the same party as the MPSEP. The Applicant claims that they are ultimately both the Crown.
[46] In Town Investments Ltd v Department of Environment (1977), [1978] AC 359 at 381 (UKHL), Lord Diplock held that the “Crown” can be synonymous with “government” and embraces “both collectively and individually all of the ministers of the Crown and parliamentary secretaries under whose direction the administrative work of government is carried on by the civil servants employed in the various government departments.” However, “[f]or nearly all purposes the idea of the Crown as one and indivisible is thoroughly misleading” (Peter W Hogg, Constitutional Law of Canada, 5th ed, vol 1, loose-leaf (updated to 2014), (Toronto, ON: Thomson Reuters, 2007), ch 10 at 2), especially in a federal state like Canada.
[47] In Ontario v OPSEU, 2003 SCC 64, [2003] 3 SCR 149 [OPSEU], the Supreme Court considered whether the same parties’ requirement for issue estoppel was fulfilled by separate provincial ministries. In that case, two government employees were convicted of sexually assaulting people under their care, and were fired because of it. The unions grieved their terminations, and the arbitrators declined to consider the convictions as conclusive proof of the offences. The Supreme Court decided (at paragraph 11) that issue estoppel did not apply for the following reasons:
[T]he Crown, acting as prosecutor in the criminal case, is not privy to the Crown acting as employer. The employer ministries played no role in the criminal proceedings nor could they have participated as parties to these proceedings. The Attorney General, under whose authority criminal prosecutions are conducted, does not represent the interest of any particular party, but represents the public interest. Despite their legal personality, and their designation for the purpose of judicial proceedings, the ministries in question here as employers share no relevant relationship to the Crown as prosecutor. [Emphasis added]
[48] As such, the pertinent question is thus whether the MCI and the MPSEP share a relevant relationship pertaining to the 2002 Decision. Certainly, their interests under section 4 of the Act are very closely aligned. In situations like this, their overall objective is the same; both are trying to ensure that people do not immigrate to Canada unless they meet the requirements to do so. The MCI tries to keep unqualified immigrants out, and the MPSEP evicts the ones who nevertheless make it in. At risk of over-simplifying the matter, they play different positions but they are on the same team. Indeed, even though the MPSEP referred this case to the Immigration Division, the subsection 44(1) report was prepared by an officer at CIC.
[49] Furthermore, subsection 4(3) of the Act authorizes the Governor in Council to set out specific responsibilities for each Minister by order, which it has done with the Order Setting Out the Respective Responsibilities of the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness Under the Act, SI/2005-120. It seems artificial to treat them as completely different entities when, by a simple executive action, they could easily take on responsibilities that the other had been doing. By the IAD’s reasoning, if, for instance, the Governor in Council should ever decide to transfer responsibility for spousal sponsorship decisions to the MPSEP, every spousal sponsorship appeal in the past would suddenly cease to be a basis for issue estoppel. That would be, to say the least, a bizarre consequence.
[50] Nevertheless, when one looks at the IAD’s decision on this issue as a whole, it was reasonable.
[51] The IAD probably would have exercised its discretion to hear the case against the Applicant even if it had been satisfied that the pre-conditions to issue estoppel were met. At paragraph 28 of its decision, the IAD said 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 under the [Act] to assess whether there was a material misrepresentation under section 40.”
[52] That is a reasonable conclusion. A material misrepresentation is one that “induces or could induce an error in the administration of this Act” (Act, s 40(1)(a)). This expressly recognizes that the misrepresentation could have already induced an error in the administration of the Act, and the IAD should not be precluded from exploring this possibility only because it was the IAD itself that was allegedly induced into error.
[53] Moreover, even the Applicant recognized at paragraphs 24 to 26 of her reply memorandum that significant new evidence could reasonably justify a decision not to apply issue estoppel. The IAD had evidence before it that the Applicant’s sponsor divorced her just one month after her arrival in Canada, with a separation date well before when she obtained permanent residence, and the Applicant’s sponsor specifically advised CIC that the Applicant only married him to get into Canada. Although the IAD never expressly considered its discretion to not apply issue estoppel, it is readily apparent that it would have decided to hear the case against the Applicant even had it been convinced that the pre-conditions were met.
[54] Consequently, while the IAD’s decision on this point may not have been perfect in all respects, it was nonetheless reasonable.
C. Did the IAD unlawfully refuse the Applicant’s request for a re-hearing? (1) The Applicant’s Arguments [55] The Applicant argues that the IAD made essentially two errors in deciding the inadequate interpretation application. First, the Applicant says that the IAD required her to demonstrate that the errors in translation caused her significant prejudice, which was contrary to the leading cases of R v Tran, [1994] 2 SCR 951 at 994-995, 117 DLR (4th) 7 [Tran], and Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA 191 at paragraph 4, [2001] 4 FCR 85 [Mohammadian (FCA)].
[56] The second error, the Applicant says, is that the IAD unreasonably decided that the interpretation was adequate. The Applicant reproduces a number of the alleged errors in her memorandum, and claims that the IAD failed to assess those errors against the standard of precision set out in Tran. Indeed, the Applicant asserts that the IAD’s summary of the Applicant’s testimony was wrong in material respects.
[57] Furthermore, the Applicant contends that linguistic understanding is but one of the requirements of adequate translation, with some of the others being precision, continuity, contemporaneousness, and impartiality. According to the Applicant, the IAD’s obsession with significant prejudice blinded it to these other factors, and the Applicant argues that was unreasonable.
(2) The Respondent’s Arguments [58] The Respondent argues that word-for-word interpretation is difficult and, in some respects, impossible insofar as perfection cannot always be obtained. The Respondent therefore says that one cannot apply a microscope to the translation, as the Applicant attempts to do, and unduly focus on precision. All that is required, according to the Respondent, is that the various elements of linguistic understanding have been maintained.
[59] Although the IAD mentioned prejudice, the Respondent contends that it never made that a requirement. On the contrary, the IAD used that phrase in the sense of there being sufficient linguistic understanding for the Applicant and in assessing whether the parties understood each other, which is all that was required (Boyal v Canada (Citizenship and Immigration), [2000] FCJ No 72 (QL) at paragraph 7, 181 FTR 158 [Boyal]). Whatever errors the interpreter may have made, the Respondent states that at no time did the parties misunderstand each other.
[60] The Respondent says the examples of misinterpretation referred to by the Applicant are not such that they clearly show, on a balance of probabilities, that the parties did not have sufficient linguistic understanding. The IAD, the Respondent says, reasonably and properly applied the applicable principles of linguistic understanding.
(3) Analysis [61] Section 14 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, provides that:
14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.
14. La partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu’ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu’ils sont atteints de surdité, ont droit à l’assistance d’un interprète.
[62] In Tran, the Supreme Court of Canada discussed the application of section 14 in a criminal context, and held that the central principle is linguistic understanding, which means that people with language difficulties “must have the same opportunity to understand and be understood as if they were conversant in the language being employed in the proceedings” (Tran at 985). This is assessed by criteria that “include, but are not necessarily limited to, continuity, precision, impartiality, competency and contemporaneousness” (Tran at 985).
[63] The same standard has been adopted with respect to immigration proceedings (Mohammadian (FCA) at paragraph 4; Kamara at paragraphs 35-37). The Applicant in this case only impugns the precision of the interpretation, for which the Supreme Court in Tran (at 986-987) endorsed the following quotation from Graham G. Steele, “Court Interpreters in Canadian Criminal Law” (1992), 34 Crim LQ 218 at 240-241:
… the interpretation must be, as close as can be, word-for-word and idea-for-idea; the interpreter must not “clean up” the evidence by giving it a form, a grammar or syntax that it does not have; the interpreter should make no commentary on the evidence; and the interpretation should be given only in the first person, e.g., “I went to school” instead of “he says he went to school”.
[64] However, perfection cannot be expected, and the Supreme Court held that the standard is lower for oral interpretation than it is for the translation of documents, since the former “involves a process of mediation between two people which must occur on the spot with little opportunity for reflection” (Tran at 987)