Date: 20040622
Docket: IMM-3775-03
Citation: 2004 FC 886
BETWEEN:
THAMARAICHELVY LOGESWAREN
RUBIGAH LOGESWAREN
RUBAGANTH LOGESWAREN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE SOLICITOR GENERAL OF CANADA
Respondents
PHELAN J.
NATURE OF PROCEEDINGS
[1] This judicial review raises the issue of whether cause of action estoppel or issue estoppel apply with respect to a second application to vacate or cease refugee protection.
[2] The applicants seek judicial review of an interlocutory decision of the Immigration and Refugee Board (the Board) which dismissed the applicants' motion to dismiss the Minister's application to vacate the applicants' convention refugee status.
[3] At the request of respondent's counsel, the respondent shall be the Solicitor General of Canada.
BACKGROUND
[4] The applicants are a mother and two minor children of Sri Lankan Tamil origin who arrived in Canada on March 2, 1993. They claimed that they left Sri Lanka on February 10, 1993.
[5] The applicants were granted refugee status on May 6, 1993. They applied for permanent residency, which application remains pending.
[6] The applicants' respective husband and father was also found to be a refugee and has since became a Canadian citizen.
[7] In 1994, as a result of an anonymous "tip", the Minister alleged that Mrs. Logeswaren's fingerprints matched those of "SK", a person who had claimed refugee status in 1987 (six years before the applicants say they left Sri Lanka). "SK's" refugee claim was denied.
[8] The Minister filed an application to vacate the applicants' refugee status in 1999. That application was dismissed for insufficiency of evidence as to the similarity of fingerprints. The Minister's evidence had consisted of the testimony of an immigration officer that he had a conversation with a Swiss official who confirmed the fingerprint match. Hardly a surprising result.
[9] In 2000 the Minister received the Swiss government's Monitoring Record with regard to "SK". As a result, the Minister now alleges that the photograph of SK is that of the applicant mother, Thamaraichelvy Logeswaren.
[10] In early 2001, the Minister filed for leave to file a second application to vacate under section 55 of the Refugee Protection Division Rules (the Rules) on the basis of this new evidence from the Swiss government. The applicants had no notice of this procedural step.
[11] In May 2001, the Member of the Board advised that she did not wish to proceed but apparently changed her mind and advised the applicants of this second application to vacate.
[12] The applicants brought a motion to dismiss the application to vacate on the basis of res judicata. That motion was dismissed and this judicial review is the result.
[13] The Minister decided that the Immigration and Refugee Protection Act (the Act) did not restrict the Minister to only one application to vacate. The Board found that there was no abuse of process or negligence by the Minister (the Minister's failure to produce all the evidence of misrepresentation was due to the refusal of the Swiss authorities to release all the relevant information without the applicants' consent, which consent had been refused).
[14] On the issue of res judicata, the Member of the Board found that the issue in 1999 related to fingerprints and therefore the current issue of the photograph is not identical to that issue decided in 1999. Therefore, issue estoppel did not arise.
[15] Finally, the Member of the Board decided that if issue estoppel did arise, he would exercise his discretion to refuse the operation of that principle. He did so taking into consideration the importance of integrity of the system, the importance of finality of process and prejudice to the applicants of a new hearing.
ANALYSIS
[16] As the issue in this judicial review is one of law, the standard of review is correctness.
[17] This judicial review, particularly from the applicants' perspective, was argued on the applicability of the principles regarding res judicata.
[18] The first issue is whether judicial review of an interlocutory decision is available to the applicants.
[19] While as a general rule interlocutory decisions are not subject to judicial review, largely as a matter of discretion, where the decision at issue is critical to the scope of the final decision and is of sufficient significance, judicial review will be available (see Citizens' Mining Council of Newfoundland and Labrador Inc. v. Canada (Minister of the Environment), [1999] F.C.J. No. 273 (MacKay J.)).
[20] In this case it would be unfair to the applicants to require them to go through a second hearing if there is no right in the Minister to proceed. The interlocutory decision does define the scope of the ultimate decision and is of sufficient significance as to warrant judicial review.
[21] While this judicial review was principally argued on the issue of res judicata at common law, I take as the starting point of the analysis the statutory scheme.
[22] The principal provision is subsection 109(1) of the Act:
| 109. (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. |
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109. (1) La Section de la protection des réfugiés peut, sur demande du ministre, annuler la décision ayant accueilli la demande d'asile résultant, directement ou indirectement, de présentations erronées sur un fait important quant à un objet pertinent, ou de réticence sur ce fait.
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[23] This general provision allowing for the subsequent overturning of refugee status secured by misrepresentation is further elaborated upon in the Rules.
[24] Rule 55(1), the provision relied upon by the Minister, provides that:
| 55. (1) A claimant or the Minister may make an application to the Division to reopen a claim for refugee protection that has been decided or abandoned. |
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55. (1) Le demandeur d'asile ou le ministre peut demander à la Section de rouvrir toute demande d'asile qui a fait l'objet d'une décision ou d'un désistement. |
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This is the provision which allows for a first application to vacate.
[25] Most importantly for their judicial review is Rule 56(1) which provides:
| 56. (1) The Minister or a protected person may make an application to the Division to reopen an Application to Vacate Refugee Protection or an Application to Cease Refugee Protection that has been decided or abandoned.
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56. (1) La personne protégée ou le ministre peut demander à la Section de rouvrir la demande d'annulation ou la demande de constat de perte d'asile qui a fait l'objet d'une décision ou d'un désistement. |
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This provision establishes a regime for subsequent attempts to vacate or cease refugee protection - the very matter which the Minister is attempting in this case.
[26] I cannot see that there is any statutory bar to the Minister bringing more than one application whose ultimate purpose is vacating refugee protection in instances of misrepresentation.
[27] The importance of integrity in the refugee protection system is too important to permit undeserving persons from benefiting from the system where there is good reason for revocation of these benefits.
[28] Section 109 provides the Refugee Protection Division (RPD) with a broad discretion to accept or reject any such application. It is through the proper exercise of that discretion that abuse of the provisions by the Minister through unwarranted or repeated applications should be controlled. Failure to control such abuse will also be subject to judicial review.
[29] The discretion in section 109 parallels the discretion to be exercised in the application of res judicata as held by Justice Binnie in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44.
[30] In the exercise of discretion under section 109, the RPD must have regard to such principles as cause of action estoppel (the principle applicable in this case) and to issue estoppel. While these two aspects of res judicata are similar, they are not identical.
[31] In this case, cause of action estoppel is applicable as it involves the same adjudicative body, the same parties and the same issue. What is different is that the evidentiary base is not the same in dealing with the same issue, that of misrepresentation by the applicants.
[32] I am of the view that just as in the case of issue estoppel, there is discretion in the case of cause of action estoppel, although the scope may be narrower. The common law discretion must take a secondary role to the power given to the RPD by statute.
[33] Given the legislative scheme, to the extent that res judicata in the form of cause of action estoppel applies, the discretion accorded by Parliament specifically vests the RPD with the jurisdiction to consider an application to vacate (or to reopen).
[34] The Board exercised its discretion (both statutory and under res judicata) properly, took into account the relevant factors and reached a reasonable decision.
[35] However, the Board did not consider whether the Minister had applied under the proper rule. As stated earlier Rule 55 applies to the first attempt to vacate. The Minister had no right to bring a second application to vary under that rule.
[36] The appropriate remedy is to be found in Rule 56 which gives the Minister the specific right to apply to reopen the first application to vary even though it had been decided.
[37] Therefore, this application for judicial review will be granted in part, the decision quashed and the matter remitted to the Board for its determination with leave to the respondent to amend the application to invoke Rule 56.
[38] Before an order is made, the parties may address any question to be certified. The applicants should have seven (7) days from the issuance of these reasons to serve and file their submissions on any question; the respondent shall have seven (7) days thereafter with the applicants allowed three (3) days to reply.
(s) "Michael L. Phelan"
J.F.C
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: IMM-3775-03
STYLE OF CAUSE: Thamaraichelvy Logeswaren, Rubigah Logeswaren, Rubaganth Logeswaren v. Minister of Citizenship and Immigration and Solicitor General of Canada
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 15, 2004
REASONS FOR ORDER: The Honourable Mr. Justice Phelan
DATED: June 22, 2004
APPEARANCES:
Mr. Kumar Sriskanda FOR THE APPLICANTS
Ms. Kareena Wilding FOR THE RESPONDENTS
SOLICITORS ON THE RECORD:
Mr. Kumar Sriskanda
Toronto, Ontario FOR THE APPLICANTS
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENTS