Pillai v. Canada (Minister of Citizenship and Immigration) (T.D.) [2002] 3 F.C. 481
.
Date: 20011221
Docket: IMM-6124-00
Neutral citation: 2001 FCT 1417
BETWEEN:
RAJKUMAR VADUGAIYAH PILLAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning assigned to that expression in subsection 2(1) of the Immigration Act[1]. The decision of the CRDD was delivered orally on the 14th of November, 2000. Written reasons are dated the 1st of December, 2000.
BACKGROUND
[2] The applicant is a 32 year-old Tamil who is a citizen of Sri Lanka. He was born, raised and educated in Colombo and remained there until he went to Moscow in 1993 to continue his education. He returned to Sri Lanka in May, 1996 and stayed there for several months before coming to Canada to claim Convention refugee status. He alleges that the Sri Lankan government suspects that his family supports The Liberation Tigers of Tamil Eelam (the "Tigers"). He also alleges that the Tigers suspect that the members of his family are traitors to their cause. He alleges that when he was in Colombo in 1996, he was approached by the Tigers who asked him to persuade his father to help them carried out terrorists activities. Both his own life and the lives of members of his family were threatened if he disclosed the request.
[3] The decision of the CRDD that is under review is its third decision with respect to the applicant. In both of its prior decisions, the CRDD determined the applicant not to be credible and denied the applicant Convention refugee status. Judicial review was sought of those decisions. In each case, leave to proceed to judicial review was denied. Following each earlier decision, the applicant voluntarily left for the United States. In each case, he sojourned there for slightly in excess of ninety (90) days without making a refugee claim. In each case, he returned to Canada and, in accordance with the exception to paragraph 46.01(1)(c) contained in subsection 46.01(5) of the Immigration Act, he reasserted his Convention refugee claim in Canada.
THE DECISION UNDER REVIEW
[4] A preliminary issue arose before the CRDD when counsel for the applicant, in writing, raised the issue of reasonable apprehension of bias on the part of the CRDD members assigned to the applicant's third hearing because the reasons arising out of the two previous hearings before the CRDD had been made available to them. The CRDD wrote:
The panel adjourned to review the motion by counsel for a new panel to be assigned to this case because the reasons of the two previous panels that had determined the claimant's previous claims were on the file and had been available to this panel.
The panel also received advice from the Refugee Claim Officer ... on this. We considered the motion and although the case law is not explicit in terms of whether reasons of the previous panel would be available to a new panel, we noted an implicit reference in the case of Sebrasubramania [sic] that the panel making the second decision had access to the deliberations of the panel making the first decision.
The panel is also aware that the practice of the Refugee Board, as far as this panel is aware, has been since about 1994 to allow panels in cases that are not de novo to review all of the evidence from the previous record, including the reasons of the previous panel. This panel also noted that it intended to adopt the Vasquez decision and to adopt the doctrine of res judicata that is implicit in Vasquez and made the point that the reasons of the previous panels were not really pertinent to this particular panel because we did not intend to hear evidence that had been heard before and had been decided upon before and that we had intended to hear only evidence that was not and could not have reasonably have [sic] been placed before the previous panel. Counsel sought an opportunity to make an observation on Vasquez and we note in his observation that panels are certainly not bound to adopt Vasquez. This panel has chosen to adopt it.
The decisions referenced in the foregoing quotation are Sivasubramaniyam v. Canada (Minister of Citizenship and Immigration)[2] and Vasquez v. Canada (Minister of Citizenship and Immigration)[3].
[5] The CRDD determined the key issues in the applicant's claim to be identity of the agents of persecution feared by the applicant, the well-foundedness of the objective basis to his fear and his failure to claim on each occasion when he sojourned in the United States. The CRDD accepted that the agents of alleged persecution were both the Tigers and the Sri Lankan Security Forces. Relying upon documentary evidence and the fact that sisters of the applicant and their husbands, all of approximately the same age as the applicant, continued to live in Colombo without harassment, the CRDD found against an objective basis to the applicant's claim. It drew a negative inference as to the subjective basis to the applicant's alleged fear of persecution from the failure on his part to claim Convention refugee status in the United States on the two occasions when he sojourned there. In light of its determinations and without specific reference, except with regard to the preliminary issue, to earlier decisions of the CRDD with respect to the applicant, the CRDD determined, for a third time, against the applicant's Convention refugee claim.
THE ISSUES
[6] Counsel for the applicant urged that the CRDD erred in a reviewable manner in four respects: first, in the failure of the members of the CRDD who heard the applicant's third claim to recuse themselves on the basis of a reasonable apprehension of bias on their part arising out of the fact that previous reasons of the CRDD in relation to the applicant were before them; second, by fettering its discretion and neglecting its alleged statutory duty when it failed to conduct a full hearing de novo; third, in finding it implausible that Tiger operatives were present in Colombo and, more particularly, in the region of Colombo where the applicant had previously lived and where his siblings and their spouses continued to live; and fourth, in finding against a subjective basis to the applicant's fear of persecution by reason of his failure to claim in the United States.
ANALYSIS
[7] I have difficulty separating the first two issues raised on behalf of the applicant. I will therefore deal with them together.
[8] By "Notice To Counsel" dated the 28th of September, 2000, the CRDD provided to counsel, among other documentation, material related to the applicant's first and second claims.[4] Presumably, this material included the reasons of the CRDD on those claims.
[9] By letter dated the 10th of November, 2000[5], four days before the hearing. counsel for the applicant notified the CRDD that:
The claimant is making a motion for the following:
1. removal of the reasons for decision in his previous claims from the files of the Members to be scheduled for his case;
2. A new Panel for the hearing of this matter.
The claimant bases this request on his reasonable apprehension of bias that the currently scheduled Members, having viewed the reasons for rejecting his previous claims, would not decide fairly.
The claimant does not object to the Panel receiving notices indicating the decisions made on his previous claims or applications for judicial review.
The claimant takes issue with the provision of the reasons of previous CRDD Panels for rejecting his claims, as it is the claimant's opinion that these reasons are likely to, consciously or unconsciously, taint the minds of the new Panel hearing his case.
Parliament has provided a new hearing for refugee claimants who have been outside of Canada for 90 days since their last claim was rejected. Parliament intended this new hearing to be a fresh look at the evidence from every aspect. No limitations are placed on the type of evidence which may be adduced and the claimant is provided with a new Panel. It is submitted that, particularly where previous negative decisions have been based up on [sic] credibility, it is essential that the new Panel hearing the claim approach the claimant's evidence with an open mind. It is trite law that the assessment of credibility is an individualized assessment, designed to be unfettered by prejudgment.
The test for reasonable apprehension of bias has been stated by the Supreme Court of Canada as follows
"...the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... That test is ‘what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that the [decision maker] whether consciously or unconsciously, would not decide fairly' ". [Committee for Justice and Liberty v. National Energy Board [1978] 1 S.C.R. 369, at page 394.
In Baker v. M.C.I. [1999] 2 S.C.R. 817, Supreme Court of Canada stated that standards for a reasonable apprehension of bias vary, like other aspects of procedural fairness, depending on the context and the type of function performed by the administration [sic] decision maker. It is submitted that the context of refugee decisions is one where the highest administrative standards of procedural fairness are mandated. Further, the decisions are of an individualized nature, and are rights oriented. As such, it is submitted that the threshold for establishing a reasonable apprehension of bias must be sensitive to the high procedural standards afforded to those claiming refugee status.
In this particular case, in which the claimant has been rejected on two previous occasions for reasons of credibility, it is submitted that any well informed member of the community would perceive bias in knowing that a subsequent Panel would have access to the reasons for the previous decisions.
[10] The response of the CRDD, summarized in its reasons as quoted earlier herein, is better amplified in the transcript of the hearing before the CRDD leading to the decision here under review. The following is recorded in the transcript[6]:
Well, the panel has spent some time late this morning and early this afternoon reviewing Counsel's motion which we are taking very seriously.
And the panel has an entirely different view of the approach to the case. We do intend to adopt the Vasquez decision and the principle of res judicata. This is not a de novo hearing; in a de novo hearing of course the reasons of the previous panel would not be available to the new panel because it must be heard de novo.
The principle of res judicata implies that the same facts have been determined and the two sides are the same, the issues are the same. Given that spin of it, this panel is not interested in the reasons of the previous panel as they apply to this particular hearing this afternoon. We take the view that previous panels have already made a determination based on the evidence that they heard at their hearings.
The claimant had recourse to the Federal Court, in one circumstance has [sic] appeal was denied, in the other it was dismissed. So this panel takes the view that the two previous panels were not found to have made any capricious findings, or to have made any reviewable errors and that is why we find the doctrine of res judicata very compelling for our purposes.
Having said that, what we would be interested in is any new information that the claimant can bring forward this afternoon that was not before the previous panel, or that could not reasonably have been in place before the previous panel. In that sense, whatever the claimant told the previous panel and how they assessed his credibility is a moot point, because we're not looking into that. We are looking into anything new that he has to add.
The panel feels that it cannot reasonably determine whether the same matters have been adjudicated before, unless it does have access to the reasons, for at least that reason to see that the previous panel has not dealt with the matters and so that is the reason, Counsel, that we are going to reject the motion and we would be pleased to put our reasons in writing, but I do not wish to delay the hearing any longer and so we wish to proceed.
But I just want to reiterate that it's because what has not yet been adjudicated, is not known to us and, unless we read the previous reasons so that we can deal with what is new in the claim.
So that is our position on this and we do understand your client's concern and that's the decision of the panel.
[11] Counsel for the applicant replied in the following terms[7]:
Just a question to the panel; I have previously approached this in two ways, there were two issues I was going to raise, one was bias, the other one was the applicability of Vasquez, and it seems that you've decided that you're going to apply Vasquez already.
The presiding Board member affirmed that this was the case. Thus, the first two issues raised on behalf of the applicant were in fact intertwined by the CRDD.
[12] Counsel for the applicant quite correctly stated the test for a reasonable apprehension of bias in his letter quoted above and cited the leading authority on that subject. The CRDD, in the foregoing quotation from the transcript of the hearing before it, quite appropriately, and I am satisfied, fully, addressed the applicant's concern. The remaining principal issue, rests in the debate, focussed on in the letter from counsel for the applicant and the response of the CRDD in the quotations above. I will briefly state the issue as follows:
In circumstances such as those before the CRDD here, is the third hearing before the CRDD with respect to this applicant's third claim to Convention refugee status a hearing de novo, as advocated by counsel for the applicant, or is it not, as advocated in the extracts from the transcript, on behalf of the CRDD panel?
[13] Paragraph 46.01(1)(c) of the Immigration Act, and the additional relevant elements of that subsection, read as follows:
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;
...
46.01 (1) La revendication de statut n'est pas recevable par la section du statut si l'intéressé se trouve dans l'une ou l'autre des situations suivantes:
...
c) depuis sa dernière venue au Canada, il a fait l'objet_:
(i) soit d'une décision de la section du statut lui refusant le statut de réfugié au sens de la Convention ou établissant le désistement de sa revendication,
(ii) soit d'une décision d'irrecevabilité de sa revendication par un agent principal;
...
[14] Subsection 46.01(5) of the Immigration Act reads as follows:
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.
(5) La rentrée au Canada de l'intéressé après un séjour à l'étranger d'au plus quatre-vingt-dix jours n'est pas, pour l'application de l'alinéa (1)c), prise en compte pour la détermination de la date de la dernière venue de celui-ci au Canada.
[15] In his initial reasons in Vasquez v. Canada (Minister of Citizenship and Immigration)[8], Mr. Justice Rothstein, then of the Trial Division of this Court, wrote at paragraph [4] and [5]:
[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.
[16] Mr. Justice Rothstein continued at paragraph [11] of his reasons:
[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) [of the Immigration Act], 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.
[17] The foregoing is in direct conflict with the view expressed by counsel for the applicant in his letter to the CRDD that is quoted above to the following effect:
Parliament intended this new hearing to be a fresh look at the evidence from every aspect.
[18] Neither Mr. Justice Rothstein nor counsel for the applicant cite any authority for their conflicting interpretations of Parliament's intent in enacting subsection 46.01(5) of the Immigration Act. Nor was any authority in favour of either of those interpretations cited before me. I prefer Mr. Justice Rothstein's interpretation, at least on the facts of this matter. There may be circumstances that would give rise to an interpretation closer to that advocated by counsel for the applicant. If the applicant in this matter had returned to Sri Lanka following his second rejection by the CRDD and the failure by this Court to grant leave in respect of that rejection, and had encountered difficulties either at the hands of the Tigers or the Security Forces that amounted to or approached persecution, he would have been in a position to return to Canada and to say to the CRDD: "I told you so. I was at all times at risk of persecution in the region of Colombo in which I grew up."
[19] But that was not the case. Rather than return to Sri Lanka, the applicant chose to go to the United States, to sojourn there, and not to make a claim for Convention refugee status there. In essence, he did nothing whatsoever to bolster his claim or to put into doubt the findings of earlier panels of the CRDD. Thus, I find no basis on which to conclude that Parliament intended, on the particular facts of this matter, to confer on the applicant a de novo opportunity to claim Convention refugee status upon his third entry to Canada. Rather than bolstering his claim in a period of absence from Canada, his actions put into doubt his claim to a subjective fear of persecution if required to return to Sri Lanka.
[20] As noted by Mr. Justice Rothstein in his supplementary reasons in Vasquez[9], the requirements for issue estoppel, a subset of res judicata, are the following:
(1) The same question has been decided.
(2) The decision was final.
(3) The parties in both proceedings are the same.
Mr. Justice Rothstein continued at paragraph [7] of his supplementary reasons:
[7] The relevant principle is well-known. In Doering v. Grandview (Town)..., Ritchie J., for the majority [of a panel of the Supreme Court of Canada], referred to Fenerty v. Halifax (City) ... in which the Supreme Court of Nova Scotia stated:
"The doctrine of res judicata [including issue estoppel] is founded on public policy so that there may be an end of litigation, and also to prevent the hardship to the individual of being twice vexed for the same cause. The rule which I deduce from the authorities is that a judgment between the same parties is final and conclusive, not only as to the matters dealt with, but also as to questions which the parties had an opportunity of raising. It is clear that the plaintiff must go forward in the first suit with his evidence; he will not be permitted in the event of failure to proceed with a second suit on the ground that he has additional evidence. In order to be at liberty to proceed with a second suit he must be prepared to say: ‘I will shew you that this is a fact which entirely changes the aspect of the case, and I will shew you further that it was not, and could not by reasonable diligence have been ascertained by me before'. " [citations omitted]
[21] Very recently, and certainly after the hearing before the CRDD giving rise to the decision here under review, the Supreme Court of Canada revisited the issue of issue estoppel in Danyluk v. Ainsworth Technologies Inc.[10] While the factual background in Danyluk was substantially different from that which is now before me, certain of the principles enunciated by Mr. Justice Binnie, on behalf of the Court, are instructive. Under the heading "Issue Estoppel": a Two-Step Analysis", he wrote at paragraph 33:
The rules governing issue estoppel should not be mechanically applied. The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case. (There are corresponding private interest.) The first step is to determine whether the moving party ... has established the preconditions to the operation of issue estoppel... . If successful, the Court must still determine whether, as a matter of discretion, issue estoppel ought to be applied: .... [citations and some text omitted]
[22] I am satisfied that the CRDD quite properly determined that the "...pre conditions to the operation of issue estoppel..." had been met, notwithstanding the difficulty in defining the "parties" in a proceeding before the CRDD. I am satisfied for the purposes of this analysis that the parties are the applicant, certainly common to all three hearings before the CRDD, and the CRDD itself, and not the members of any particular panel of the CRDD.
[23] Turning to the second step of the analysis, that is to say, the determination whether, as a matter of discretion, issue estoppel ought to be applied, Mr. Justice Binnie wrote at paragraph 67 of Danyluk:
The list of factors [to be considered in determining whether, as a matter of discretion, issue estoppel ought to be applied] is open. ... The objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case. ...
[24] Mr. Justice Binnie identified seven (7) factors which he considered to be relevant to the case before him. They are the following:
(a) The Wording of the Statute from which the Power to Issue the Administrative Order Derives;
(b) The Purpose of the Legislation;
(c) The Availability of an Appeal;
(d) The Safeguards Available to the Parties in the Administrative Procedure
(e) The Expertise of the Administrative Decision-Maker;
(f) The Circumstances Giving Rise to the Prior Administrative Proceedings; and
(g) The Potential Injustice.
[25] While the CRDD's analysis giving rise to its determination to adopt issue estoppel clearly lacks specificity that one might expect following the decision of the Supreme Court of Canada in Danyluk, I am satisfied that it was sufficient to support its determination.
[26] The CRDD is the master of its own procedure. It is required by subsection 68(2) of the Immigration Act to deal with proceedings before it "...as informally and as expeditiously as the circumstances and the considerations of fairness permit." By subsection 68(3), it is not bound by any legal or technical rules of evidence. It is entitled to receive and base a decision on evidence adduced before it that it considers credible or trustworthy in the circumstances of the case. It is required by subsection 69.01(1) to commence a hearing into a Convention refugee claim as soon as is practicable. By subsection 69.1(5), it is required to provide a claimant a reasonable opportunity to present evidence, question witnesses, and make representations. In essence, it is required to strike a balance between expeditious proceedings on the one hand and procedural fairness or natural justice or the other. This is a daunting task.
[27] In Prassad v. Canada (Minister of Employment and Immigration)[11], Mr. Justice Sopinka, for the majority, wrote at pages 568-9:
We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice.
With limited exceptions, judges of the Trial Division of this Court have followed the lead of Mr. Justice Rothstein in Vasquez and have found it open to the CRDD to apply the principles of issue estoppel in cases of multiple claims, where to do so, in the opinion of the presiding panel, and subject to judicial review by this Court, does not result in an imbalance in favour of judicial economy and against procedural fairness or natural justice. I favour the prevailing view. While I regard it as beyond question that the CRDD is not bound to apply issue estoppel in circumstances such as those here under consideration, except in circumstances where to do so would result in a breach of procedural fairness or natural justice that cannot be countenanced, it is reasonably open for it to do so. Indeed, in circumstances where the balance between judicial economy, in particular its duty to act with all reasonable dispatch, and its responsibility to act fairly and justly, is not clearly in favour of fairness and natural justice, I am satisfied that it is appropriate that the CRDD apply the principle of issue estoppel.
[28] The last two issues raised on behalf of the applicant are easily disposed of. I am satisfied that the CRDD made no reviewable error in its implausibility finding regarding operation of a cadre of the Tigers in the Kotahena region of Colombo. Further, I find that the CRDD made no reviewable error in drawing an adverse inference against the applicant regarding his subjective fear of persecution if required to return to Sri Lanka by reason of his failure to claim Convention refugee status on either of his sojourns in the United States. His evidence was clearly to the effect that he failed to claim in the U.S. because he preferred to live in Canada and preferred to pursue his claim in Canada rather than in the U.S. That does not reflect the attitude of an individual who has such a fear of persecution that his first and virtually only consideration is protection against return to his home country, regardless of where he might be able to secure that protection.
CONCLUSION
[29] For the foregoing reasons, this application for judicial review will be dismissed.
CERTIFICATION OF A QUESTION
[30] Counsel for the applicant urged certification of six (6) questions as serious questions of general importance each of which would be dispositive of an appeal from my decision herein[12]. The following is the text of the recommended questions:
1) does the Board's practice of automatically disclosing reasons from previous panels in subsequent claims, without providing counsel an opportunity to object, breach the principles of natural justice?
2) is the practice of automatically disclosing previous reasons with negative credibility assessments capable of giving rise to a reasonable apprehension of bias?
3) does the practice of CRDD panels in relying upon reasons made by previous panels prior to hearing evidence in a second claim give rise to a reasonable apprehension of bias?
4) does the concept of issue estoppel apply to proceedings before immigration administrative decisionmakers, and if so, to what extent?
5) is the Board obligated to provide counsel an opportunity to make submissions regarding the exercise of discretion whether to apply issue estoppel and to provide reasons in exercising this discretion?
6) in immigration proceedings, is the "other party" to be narrowly construed to mean the specific decisionmakers, more broadly construed to mean the immigration division involved, or at its broadest, to mean the Minister of Citizenship and Immigration?
[31] Counsel for the respondent urged against certification of any question and, in particular, the six (6) questions proposed by counsel for the applicant. Counsel noted that in Telemichev v. Canada (Le Ministre de la Citoyenneté et de l'Immigration)[13], my colleague Mr. Justice Lemieux in reasons on judicial review from a decision of the CRDD raising questions similar to those before me, refused to certify questions proposed by counsel. Mr. Justice Lemieux wrote at paragraph [34]:
Me Lebrun formule deux questions à être certifées se rattachant au droit d'un revendicateur à une audience complète au sens de l'arrêt Singh c. Le Ministre de l'Emploi et de l'Immigration, ... et dans ce contexte, une deuxième question, se rattachant à l'obligation de la Section du statut d'examiner l'ensemble des preuves déposées, anciennes et nouvelles. Je n'accepte pas l'invitation de Me Lebrun car je n'ai aucune hésitation de conclure que le principe de la chose jugée est un principe fondamental d'ordre public et s'applique à une deuxième revendication. [citation omitted]
[32] I will not certify any of the questions proposed. While some or all of the questions proposed might very well be serious questions of general importance and dispositive of an appeal in this matter, none of them is restricted to the facts of this matter. Rather, each is in the nature of a reference question. I am satisfied that, for a question to be appropriate for certification, it must not only meet the criteria specified in Liyanagamage, and as to the criteria, I am satisfied that Liyanagamage remains good law, it must also invite the Federal Court of Appeal to deal only with the specific decision under appeal and not with broad issues for which no factual basis or, at best, no adequate factual basis is provided by the matter under
appeal.
______________________________
J. F.C.C.
Ottawa, Ontario
December 21, 2001
[1] R.S.C. 1985, I-2.
[2] [1997] F.C.J. No. 1124 (Q.L), (F.C.T.D.).
[3] [1998] F.C.J. No. 1340, (F.C.T.D.) with supplementary reasons reported at (1998), 160 F.T.R. 142.
[4] Tribunal Record, page 38.
[5] Tribunal Record, pages 156 and 157.
[6] Tribunal Record, pages 182 and 183.
[7] Tribunal Record, page 183.
[8] Supra, note 3.
[9] Supra, note 3.
[10] [2001] S.C.J. No. 46, (Q.L.).
[11] [1989] 1 S.C.R. 560.
[12] See: Canada v. Liyanagamage (Minister of Citizenship and Immigration) (1994) 176 N.R. 4 (F.C.A.).
[13] [2001] FCPI 1103.