“Marriages of convenience” or “marriage fraud” is not a new concern for Citizenship and Immigration Canada. When an individual files an application to sponsor their spouse and the application is refused because Citizenship and Immigration decides it is not genuine or was primarily for the purpose of immigration, the sponsor may choose to appeal the decision. Should there be an appeal, the sponsor may win or lose.
If a sponsor ultimately loses an appeal, a new sponsorship application can be filed. However, what happens if this new application contains the same evidence? In this situation, sponsors should be aware of the legal concept of “res judicata”.
What is res judicata?
In these types of cases, res judicata means that:
- If an individual makes an application to sponsor their spouse, and
- The application is refused on the basis of marriage fraud, and then
- The individual makes an appeal and loses, then a second appeal may not be allowed if there is no new evidence. In other words, as long as there is no new evidence in the second application, the first ruling is binding.
How does res judicata work in immigration cases?
So, how does this work in immigration cases? In the court case of Ping v. Canada (Citizenship and Immigration Canada), Mr. Ping, a Canadian citizen, married Ms Zhou of China within 3 weeks of having met face-to-face for the first time. Mr. Ping first application for Ms Zhou and her daughter was denied because Citizenship and Immigration Canada said the marriage was not genuine and was entered into primarily for an immigration purpose. Mr. Ping appealed the decision and lost.
A few years later, Mr. Ping filed a second sponsorship application for Ms Zhou and her daughter. This was also refused for the same reasons as the first application was refused. Mr. Ping then attempted to appeal the second refusal to the Immigration Appeal Division. Before the case was heard, the Immigration Appeal Division looked as whether the principle of res judicata applied.
What happened in Mr. Ping’s case?
At the Immigration Appeal Division, Mr. Ping argued that due to his lack of funds, he was unable to afford proper representation at his original appeal hearing. In addition to that, he felt that his English skills were not strong enough to convey what he was trying to get across at that first hearing. Finally, he indicated that he had new evidence of their relationship.
Res judicata does not apply when fresh, new evidence, that was previously available and could conclusively change the original result, is presented. However, the Immigration Appeal Division felt that Mr. Ping was merely introducing more of the same evidence, not “fresh, new evidence” that would override the original decision. As a result, his appeal was refused. Mr. Ping then applied to the federal court to review this decision.
Ultimately, Mr. Ping did not win. He was unable to convince the federal court that the new evidence he submitted should cause the res judicata principle to be overridden.
What should married couples do in their immigration applications?
The main message that comes out of this case is that it is always important to submit your best and strongest evidence with your initial sponsorship application. Should your application still be refused and you choose to appeal, you must be well-prepared and know your argument ahead of time, because you may not get another chance to plead your case a second time.
This Article is prepared for general information purposes only and is intended to provide comments for readers and friends of the Filipino Journal. The contents should not be viewed as legal advice or opinion. If you have specific questions regarding immigration law, you should discuss them with a legal advisor of your choice.
Reis is a partner with Aikins Law and practices in the areas of immigration law. His direct line is 204-957-4640. If you would like to know more about Reis or Aikins you can visit the firm’s web page at www.aikins.com or e-mail him at email@example.com.
Leanne is an immigration legal assistant at Aikins Law. She holds a Bachelor of Arts degree in sociology and criminal justice from the University of Winnipeg