Date: 19980924
Docket: IMM-1979-97
BETWEEN:
SANTIAGO BENITEZ VASQUEZ
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER
[Delivered from the Bench at Calgary, Alberta
on Wednesday, September 16, 1998]
ROTHSTEIN J.:
[1] The applicant was found not to have a credible basis for a Convention refugee claim on April 23, 1992. As a result, the applicant left Canada. He then returned to Canada in 1994 and made a second Convention refugee application. That application was dismissed by the Convention Refugee Determination Division (CRDD) on April 25, 1997 and it is that decision which is the subject of this judicial review.
[2] There are two issues raised by the applicant.
| 1. Did the CRDD err in confining the assessment of the applicant's claim to evidence arising after dismissal of his credible basis claim on April 23, 1992? |
| 2. Did the CRDD err in its assessment of the evidence pertaining to the applicant's claim under subsection 2(3) of the Immigration Act, R.S.C. 1985, c.I-2? |
[3] As to the first issue, the relevant provisions of the Immigration Act appear to be subsections 46.01(1)(c) and (5):
| 46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person |
| ... |
| (c) has, since last coming into Canada, been determined |
| (i) by the Refugee Division not to be a Convention refugee or to have abandoned the claim, or |
| (ii) by a senior immigration officer not to be eligible to have the claim determined by the Refugee Division; |
| ... |
| (5) A person who goes to another country and returns to Canada within ninety days shall not, for the purposes of paragraph (1) (c), be considered as coming into Canada on that return. |
[4] It is apparent that paragraph 46.01(1)(c) is a statutory formulation of the principle of res judicata. Once a person has been determined not to be a Convention refugee future applications are barred.
[5] Subsection 46.01(5) creates an exception to the bar to future applications. I agree with the CRDD that the exception seems to have been provided to cover the situation of changed country conditions. An applicant should not be precluded from making a new Convention refugee claim based on new evidence relating to changed country conditions, since his previously failed application was decided.
[6] The complication in this case is that the credible basis determination was made by a panel consisting of a member of the CRDD and an immigration adjudicator. This raises the question of whether the panel constituted the " paragraph 46.01(1)(c) is applicable at all and if it is not, whether, and to what extent, the principle of res judicata may still operate to limit the CRDD in a subsequent Convention refugee claim to evidence of matters arising after the negative credible basis determination on April 23, 1992.
[7] The second issue arises with respect to the applicant's claim based on subsection 2(3) of the Immigration Act. Subsection 2(3) provides:
| 2. (3) A person does not cease to be a Convention refugee by virtue of paragraph 2(e) if the person establishes that there are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left, or outside of which the person remained, by reason of fear of persecution. |
[8] The applicant's father was murdered in front of the applicant in 1980 when the applicant was 13 years old. The CRDD found that the applicant's subsequent long stay in El Salvador was not consistent with the subjective fear of someone who is a victim of atrocious or appalling persecution. It also found that this type of persecution was not exceptional in the context of the civil war at the time. It then went on to state:
| The persecution was directed at the claimant's father, the claimant himself was not a target. |
It is this last consideration that the applicant says was irrelevant. He says the CRDD erred in law when it took into account this irrelevant consideration.
[9] The applicant relies on the dicta of Gibson J. in Velasquez v.M.E.I. (1994), 76 F.T.R. 210 at 213:
| While the applicant herein may not have suffered, directly, appalling persecution, I conclude that there are few who would differ with the view that her husband suffered appalling or atrocious persecution. It is important to note that the quotation from the UNHCR handbook indicates that this of itself can be sufficient to constitute compelling reason not to return an applicant in the situation of the applicant here. |
[10] I accept that the fact that the applicant himself was not the target was an irrelevant consideration and that the CRDD erred in relying upon it. However, before deciding the effect of the error, a threshold question must be answered. That is, whether the Board had jurisdiction to consider the applicant's subsection 2(3) claim based on evidence relating to facts arising in 1980.
[11] Again, the issue of res judicata is relevant. The applicant cannot, after failing in a Convention refugee claim, make a new application, even under subsection 2(3), based upon evidence that was available for the first Convention refugee application. His time for raising this issue was when he made his first claim. He cannot hold this evidence in reserve as the basis for a second Convention refugee application.
[12] I have no doubt that if the Refugee Division determined that the applicant was not a Convention refugee on April 23, 1992, he would be barred from relying on evidence available at that time in making a new Convention refugee application, even if that evidence relates to a claim under subsection 2(3). The question then is whether the credible basis panel on April 23, 1992 was the Refugee Division for purposes of paragraph 46.01(1)(c) and if not, whether, in any event, the principle of res judicata bars the raising of evidence of facts known at that time.
[13] The matter is adjourned for counsel to exchange written argument and make further submissions to the Court on these points.
J U D G E
Ottawa, Ontario
September 24, 1998