Date: 20040929
Docket: IMM-7586-03
Citation: 2004 FC 1332
Ottawa, Ontario, this 29th day of September, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
RAJANAYAKI THURAISINGAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant is a 63-year-old female citizen of Sri Lanka. The Applicant applied for Convention refugee status under the former Immigration Act and a hearing was held on April 29, 1999. The Applicant's claim was rejected and the Federal Court dismissed her application for leave for judicial review of that decision. The Applicant went to the United States in July 2001 and remained there until October of that year. She then returned to Canada and made a second claim, which was dismissed by member A.C. Knevel of the Immigration and Refugee Board, Refugee Protection Division (the _Board_) in a decision dated August 25, 2003. The Applicant seeks judicial review of that decision.
Issues
[2] The Applicant raises the following issues:
1. Did the Board err by applying the principle of res judicata to the Applicant's claim?
2. Did the Board err by failing to consider certain objective documentary evidence?
3. Did the Board err by failing to carry out a proper assessment of the Applicant's claim under s. 97 of the Immigration and Refugee Protection Act ("IRPA")?
Analysis
Issue #1: Did the Board err by applying the principle of res judicata to the Applicant's claim?
[1] As noted, this is the Applicant's second claim for Convention refugee status. With respect to the Applicant's claim, the Board determined that res judicata applies (Vasquez v. Canada (Minister of Citizenship and Immigration) (1998), 160 F.T.R. 142) and considered only evidence brought forward in this claim that could not reasonably have been brought forward in the original claim. Given that the grounds of the claim were the same as those in the originally rejected claim, the Board focussed on whether there were any changes in the country conditions or the circumstances particular to the Applicant subsequent to the original negative determination that would warrant a positive determination.
[2] The Applicant submits that the doctrine of res judicata ought not to apply in these cases of refugee claims. I cannot agree. The conclusion in Vasquez consistently has been applied by the Board and its use affirmed by this Court, even where the first determination was made under the former Immigration Act and the later one under s. 96 of IRPA (Bhatti v. Canada (Minister of Citizenship and Immigration) (March 10, 2004) Doc. No. IMM-1966-03; De Silva v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1388 (F.C.) (QL)). The principle of res judicata, as described recently by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R.460, has been correctly applied in respect of the s. 96 determination of the Board.
[3] The doctrine is only applicable to previously decided issues. The question of whether the Applicant is a protected person as defined by s. 97 of IRPA was not previously before the Board. Accordingly, res judicata does not apply to the Board's s. 97 determination.
Issue #2: Did the Board err by failing to consider certain objective documentary evidence?
[4] The Board concluded that the Applicant had not presented any persuasive evidence since she made her first claim for refugee status that would lead the Board _to conclude that her situation has changed so much today that there is a serious possibility of persecutory treatment if she were to return to Sri Lanka today._ The Applicant submits that the Board failed to consider the evidence of extortion submitted by the Applicant and that the Board erred by concluding that only business people and persons with an ability to pay were subject to extortion. I do not agree.
[5] Since the Applicant had spent the entire period between her first claim and the second entry to Canada in the United States, she was unable to establish any new first-hand evidence of persecution. The Applicant submitted no "fresh" evidence to establish a subjective fear.
[6] The Applicant argued that the new documentary evidence she submitted showed that there is increased risk of extortion. The Board reviewed that evidence and noted that this documentary evidence _has mainly to do with business people and persons who have the ability to pay._ Having reviewed the documentary evidence that was part of the record, I note that the evidence did refer mainly to business people and people with an ability to pay; there was no _fresh_ evidence that linked the Applicant to such persons. I am not persuaded that the Board ignored evidence or that its findings were patently unreasonable.
Issue #3: Did the Board err by failing to carry out a proper assessment of the Applicant's claim under s. 97 of the IRPA?
[7] As noted, the notion of res judicata does not apply to the Board's obligation to carry out an assessment of whether the claimant would be at risk under s. 97. The Applicant argues that the Board failed to carry out a proper assessment under s. 97. Once again, I disagree.
[8] The Board recognized its obligation to assess whether the Applicant would be at risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture should she return to Sri Lanka. Thus, this is not a situation where the Board failed to recognize its responsibilities to undertake an analysis of the evidence for purposes of s. 97. What is not as clear is whether the Board incorrectly applied the doctrine of res judicata to this determination. That is, for the purposes of its s. 97 analysis, did the Board confine itself to the _fresh_ evidence and dismiss from consideration evidence that might have arisen before the first refugee hearing?
[9] In this case, there was no evidence placed before the Board that related to a separate claim under s. 97. Presumably, the Applicant could have identified documentary evidence or evidence related to her subjective fear under s. 97. It is incumbent, in my view, on the Applicant to have done so if she wished the Board to consider that evidence. She did not do so. I cannot accept that there is some obligation on the Board - absent submissions and evidence on this point - to retry the original refugee claim on the basis that it automatically becomes a s. 97 claim on the subsequent review. The Board is entitled to make its findings based on the case that was put before it. In this case, there was no evidence that would have led the Board to conclude that the Applicant was a person in need of protection under s. 97.
[10] I also note that, in the final submissions of the Applicant's counsel to the Board, there was no discussion of anything other than Convention grounds. There was no reference to _old_ evidence (that might have arisen during the earlier claim) that the Applicant asked the Board to consider in support of a s. 97 claim. The refugee claim was the sole basis of all of the submissions made by the Applicant, who was represented by counsel throughout. In circumstances where a s. 96 claim does not exist and where no evidence is advanced to support a need for protection, except as related to the Convention refugee claim, a claimant cannot expect the Board to dig through the evidence to guess at what might support a s. 97 claim. The burden is on the Applicant to put her best foot forward.
[11] It would have been preferable for the Board to have stated clearly that there was no persuasive evidence before it that related to s. 97 grounds. However, its failure to do so in this case is not, in my view, an error. However, even if the Board erred, I would conclude that any error was immaterial (Athansius v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 915 (F.C.) (QL); Bouaouni v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1540 (F.C.) (QL)).
Conclusion
[12] The Applicant proposes that I certify the following question:
1. Is the case of Vasquez wrongly decided as to its finding of applicability of res judicata in refugee hearings?
[13] I have determined that the question should not be certified. The jurisprudence demonstrates that this Court consistently and without question has accepted the holdings of Vasquez and that, therefore, this question is not a live issue.
[14] For these reasons, the application will be dismissed.
ORDER
THIS COURT ORDERS THAT:
1. The application is dismissed;
2. No question is certified.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7586-03
STYLE OF CAUSE: RAJANAYAKI THURAISINGAM v. THE M.C. & I.
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 15, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: September 29, 2004
APPEARANCES:
Mr. Kumar S. Sriskanda FOR APPLICANT
Ms. Bridget A. O'Leary FOR RESPONDENT
SOLICITORS OF RECORD:
Kumar S. Sriskanda FOR APPLICANT
Barrister & Solicitor
Scarborough, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada