Ottawa, Ontario, August 18, 2006
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant is a citizen of Guatemala. He is married to a Canadian citizen, and has a Canadian-born daughter living in Canada. In the early 1990s, in the process of applying to be accepted into Canada as a refugee, the Applicant apparently stated that he had been a member of a Guatemalan death squad known as Commando Seis. However, in a decision dated May 29, 1997 an Adjudicator held that the Applicant was not inadmissible under s.19(1)(j) of the then applicable Immigration Act, as there were no reasonable grounds to believe that the Applicant committed an offence referred to in any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, as required to find the Applicant inadmissible pursuant to that section of the former Act.
[2] The Applicant’s wife has applied to sponsor the Applicant’s application for permanent residence in Canada, but the sponsorship was refused by a visa officer in a decision dated November 23, 2004, on the basis that there are reasonable grounds to believe that the Applicant is inadmissible pursuant to s.35(1)(a) of the Immigraion and Refugee Protection Act S.C. 2001, c.27 (“IRPA”), for having violated human or international rights “by committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act”.
[3] The Applicant sees the November 23, 2004 as the latest of a series of legally unfounded decisions taken by Citizenship and Immigration Canada and presently applies for judicial review of what he describes as, “the ongoing failure on the part of Citizenship and Immigration Canada to make a lawful decision regarding Applicant’s application for permanent residence in Canada, and to quash the most recent decision of the visa office (Canadian Embassy in Guatemala), dated November 23, 2004, and communicated to the Applicant on June 22, 2005, that the Applicant is inadmissible to Canada on grounds of violating human or international rights”: Application for Leave for Judicial Review, Application Record, at 2.
[4] The Applicant’s attempts to gain admission into Canada and his subsequent dealings with Immigration officials and the judicial system span the course of several years. Justice MacKay has provided a chronology of events leading up to his decision dated May 29, 2000, where he denied the Applicant’s application for a stay of removal, but noted in obiter that a May 11, 2000 decision found the Applicant inadmissible pursuant to s.19(1)(j) of the Immigration Act without considering the Adjudicator’s 1997 finding that reached the opposite conclusion: Ramirez-Perez v. Canada (M.C.I.), IMM-2539-00. In my view, the entire history of the Applicant’s repeated attempts to gain entry into Canada, including the events described by Justice MacKay, are worth repeating. As the following time line indicates, the November 23, 2004 decision presently being judicially reviewed is but the latest in a series of decisions affecting the Applicant’s efforts to enter Canada:
- November 5, 1989 – The Applicant enters Canada.
- 1990 – The Applicant meets and marries a permanent resident who later became a Canadian citizen.
- 1991 – A daughter is born to the marriage in 1991.
- 1992 – The Applicant is found not to be a Convention refugee. The Refugee Division finds the Applicant not credible with respect to certain aspects of his claim. He is also excluded by Article 1Fa of the Refugee Convention for having committed crimes against humanity.
- In or around 1994 – The Applicant’s wife submits an application to sponsor the Applicant for permanent residence. His application was granted in principle, subject to his meeting statutory requirements.
- Processing of the application is stopped because the Applicant had been convicted of an offence, said to be a driving offence. Immigration authorities inform the Applicant that he may submit a new application for permanent residence if he receives a pardon.
- October 1996 – The Applicant receives a pardon.
- January 1997 – The Applicant is advised he may submit a new application for permanent residence.
- February 1997 – The Applicant is summoned to report for an inquiry under the Immigration Act.
- May 29, 1997 – An Immigration Adjudicator determines that the Applicant is not a person described in s.19(1)(j) of the Immigration Act. The Applicant is found not inadmissible under that section. The Minister of Citizenship and Immigration’s application for Judicial Review of the May, 29, 1997 decision is subsequently dismissed.
- November 8, 1999 – The Applicant files an in-land spousal sponsorship application on humanitarian and compassionate (“H&C”) grounds.
- May 11, 2000 – The Applicant’s H&C application is denied by Immigration Officer Mary Leahy-Bennett on the grounds, among others, that the Applicant was a person described in s.19(1)(j) of the Immigration Act.
- May 12, 2000 – A Notice to report for removal on May 23, 2000 is delivered to the Applicant.
- May 17, 2000 – The Applicant files for judicial review of the May 11, 2002 decision. The next day the Applicant files for a stay, pending determination of the application for judicial review.
- May 19, 2000 – The stay hearing is held, and Justice MacKay informs the parties that he will be dismissing the application for an interim stay prohibiting removal.
- May 22, 2000 – The Applicant voluntarily departs Canada.
- May 25, 2000 – The Applicant re-enters Canada, but is detained until June 17, 2000, and deported to Guatemala.
- November 29, 2000 – Justice MacKay issues his reasons for the application for stay hearing heard May 19, 2000. Although the application was dismissed, the reasons note that that Applicant demonstrates that the matter raised serious issues, as the H&C officer may have improperly ignored the Adjudicator’s 1997 decision in determining that the Applicant was inadmissible, and the officer appeared to have given insufficient attention to the best interest of the children.
- December 5, 2000 – The Federal Court grants the application for judicial review of the H&C decision by Immigration Officer Mary Leahy-Bennett on consent. The Court orders that the matter be remitted to a different Immigration Officer for re-determination.
- March 2001 – The Applicant’s H&C application is denied. The decision is signed by Immigration Officer Rosa Greco. The Applicant also re-enters Canada in March 2001. The Applicant submits that he and his wife did not have any more money to apply to Court for judicial review.
- February 21, 2002 – The Applicant is removed from Canada after a removal order was issued against him.
- May 2002 – The Applicant’s wife again applies to sponsor the Applicant.
- October 17, 2002 – The Applicant’s application for permanent residence is refused, on the basis that his sponsor, his wife, defaulted on a previous undertaking, and therefore did not meet the requirements of s.137(1)(g)(i) of the Act. The Applicant’s sponsor appeals the decision to the Immigration Appeal Division of the Immigration and Refugee Board.
- July 21, 2004 – The Applicant’s sponsorship appeal is granted on H&C grounds considering the best interest of the daughter. The officer is ordered to “continue to process the application in accordance with the reasons of the Immigration Appeal Division”.
- November 23, 2004 – The sponsorship is refused by the visa office, on the basis that there are reasonable grounds to believe that the Applicant is a member of the inadmissible class of persons described in s.35(1)(a) of IRPA. The Applicant and his sponsor allege that they are only notified of this decision seven months after it was made, and only after their lawyer made repeated inquiries on their behalf.
[5] The Respondent concedes that the visa officer failed to observe the principles of natural justice in rendering the decision dated November 23, 2004, and that consequently the matter should be sent back for re-determination. In particular, the Respondent concedes that the visa officer breached natural justice by rendering a decision only 35 days after the 90 day letter was sent out and by relying on extrinsic information without disclosing this evidence to the Applicant. The visa officer has admitted in his sworn affidavit that his decision was based in part on “information obtained from the internet which was not disclosed to the Applicant”. The visa officer also breached natural justice by relying on extrinsic and irrelevant evidence from the Greater Toronto Enforcement Centre (“GTEC”) War Crimes division, which gave the opinion that “this is a war crimes case”, made it clear that it had “strong objections to the applicant’s return”, and stated that “in the opinion of this unit, the return of Mr. Ramirez Perez to Canada under the circumstances would constitute a blatant disregard for the overall objectives of the Canadian immigration program.”
[6] It is clear that any of the above errors would independently constitute sufficient grounds for allowing the present judicial review. The matter will be sent back for re-determination.
[7] The remaining issues are, first, whether the Court should order that when the matter is sent back for re-determination, the new visa officer be precluded from considering inadmissibility pursuant to s.35(1)(a) of IRPA, and second, whether costs should be awarded.
Res Judicata
[8] The Applicant argues that the visa officer was precluded from re-examining the issue of inadmissibility pursuant to s.35(1)(a) of IRPA by virtue of the doctrine of res judicata, as an earlier binding, final decision on the issue had already been rendered in 1997. The Applicant highlights that an Immigration Adjudicator already held in 1997 that he “is not a person as is described in 27(2)(a), 19(1)(j) of the Immigration Act”. He claims that s.19(1)(j) of the Immigration Act is equivalent to s.35(a) of IRPA, and that the May 29, 1997 decision is a final, binding decision on the issue of inadmissibility. The Applicant argues that there was no new relevant evidence before the decision-maker in 2004, and that the visa officer therefore erred both by re-examining the issue of inadmissibility, and by reaching the unsustainable conclusion that the Applicant is inadmissible.
[9] The Respondent argues that a visa officer is statutorily required to consider all grounds of inadmissibility. The Respondent is of the view that the Applicant is requesting that the officer who will re-determine the matter fetter his or her discretion and ignore his or her statutory duty to consider inadmissibility because of a past adjudicator’s finding.
[10] The Federal Court of Appeal has described the doctrine of res judicata in Apotex Inc. v. Merk and Co., [2002] F.C.J. No. 811 (C.A.), 2002 FCA 210 (C.A.), at paras. 24-25:
The relevant principles behind the doctrine of res judicata were established in two leading Supreme Court of Canada decisions: Angle v. M.N.R., [1975] 2 S.C.R. 248 and Doering v. Town of Grandview, [1976] 2 S.C.R. 621. In Angle, supra, at 254 Dickson J. noted that res judicata essentially encompasses two forms of estoppel, being "cause of action estoppel" and "issue estoppel," both based on similar policies. First, there should be an end to litigation, and second, an individual should not be sued twice for the same cause of action.
These two estoppels, while identical in policy, have separate applications. Cause of action estoppel precludes a person from bringing an action against another where the cause of action was the subject of a final decision of a court of competent jurisdiction. Issue estoppel is wider, and applies to separate causes of action. It is said to arise when the same question has been decided, the judicial decision which is said to create the estoppel is final, and the parties to the judicial decision or their privies are the same persons as the parties to the proceedings in which the estoppel is raised (see Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853., at p. 93, cited by Dickson J. in Angle supra, at 254).
[11] Under either a cause of action estoppel or issue estoppel characterization of the visa officer’s decision, for the doctrine of res judicata to apply, the Applicant must demonstrate that the Adjudicator’s May 29, 1997 finding was a final decision on the issue of inadmissibility. However, section 34 of the former Immigration Act provides:
No decision given under this Act prevents the holding of a further inquiry by reason of the making of another report under paragraph 20(1)(a) or subsection 27(1) or (2) or by reason of arrest and detention for an inquiry pursuant to section 103.
[12] Justice Rouleau has held that “section 34 clearly excludes res judicata in the specific context of section 27 of the Act”: Cortez v. Canada (Secretary of State), [1997] F.C.J. No. 97 at para. 19.
[13] It is clear that the s.34 of the Immigration Act applied to the Adjudicator’s May 29, 1997 decision. The Adjudicator’s decision arises out of a report prepared under subsection 27(2) of the Immigration Act. The Adjudicator found that the Applicant “is not a person as is described in 27(2)(a), 19(1)(j) of the Immigration Act”. The May 29, 1997 Adjudicator’s decision clearly indicates that the Applicant was the subject of a report under s.27(2)(a) of the former Immigration Act, which eventually led to the Adjudicator’s review.
[14] In my view, s.34 makes it abundantly clear that the Adjudicator’s May 29, 1997 decision was not a final decision regarding inadmissibility. The Applicant appears to take the position that the Adjudicator’s decision was a final one because the Minister of Citizenship and Immigration’s application for judicial review of the Adjudicator’s decision was dismissed. Although the May 29, 1997 decision could no longer be appealed following the dismissal of the application for judicial review, s.34 of the Immigration Act unmistakably stated that a new inquiry into whether the Applicant could have been found inadmissible could have been commenced, and the whole matter of the Applicant’s inadmissibility could have been revisited under the former Immigration Act. As the Adjudicator’s May 29, 1997 decision was not final under the former Immigration Act, it cannot reasonably be seen as a binding, final decision that precludes authorities from considering inadmissibility under the current Act.
[15] The Applicant cannot demonstrate that the Adjudicator’s May 29, 1997 decision was a binding, final decision on the question of whether the Applicant is inadmissible to Canada. It follows that the visa officer making the decision presently under judicial review was not precluded by the doctrine of res judicata from considering the issue of whether the Applicant is inadmissible.
[16] Although the Applicant’s main argument that the visa officer was precluded from considering admissibility by virtue of the doctrine of res judicata cannot succeed, I believe that the Applicant’s alternative argument reveals another fatal error of law committed by the visa officer. The Applicant argues in the alternative to his res judicata argument that if inadmissibility could be examined, then the visa officer made his inadmissibility finding without proper regard to relevant evidence by failing to consider the Adjudicator’s 1997 finding that the Applicant was not inadmissible for war crimes or crimes against humanity. The Applicant argues that on this basis alone the November 2004 decision is unreasonable.
[17] I agree with this argument. The Tribunal Record reveals that the visa officer’s decision as to inadmissibility is based largely on the Applicant’s prior testimony before the Convention Refugee Determination Division (“CRDD”) of the Immigration and Refugee Board. However, the Adjudicator found the Applicant’s testimony before the CRDD not credible. In rendering the November 23, 2004 decision, the visa officer did not mention the 1997 Adjudicator’s finding in his decision letter sent to the Applicant, and there is only a passing reference to the 1997 Adjudicator’s decision in his notes. There is nothing in the decision or the visa officer’s notes acknowledging that the Applicant recanted on the testimony now being used to brand him inadmissible. As this Court has held in Cepada-Gutierrez v. Canada (M.C.I.) [1998] F.C.J. No. 1425 at paragraph 17, “when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact”. In this case the Court has no difficulty inferring that the visa officer overlooked the 1997 Adjudicator’s decision.
[18] It flows from the above analysis that when the matter is sent back for a re-hearing, the new visa officer assigned to the case will be able to consider the issue of inadmissibility, but must consider all of the facts and evidence of the case, including the Adjudicator’s decision dated May 29, 1997.
Costs
[19] The Applicant argues that in this case there are special reasons for which the Court should award costs pursuant to Rule 22 of the Federal Court Immigration Refugee Protection Rules, SOR/93-22. The Respondent relies on Zheng v. Canada (M.C.I.) 2003 FCT 54 at para. 14, for its submission that absent bad faith on its part, any failings or errors in the rendering of a decision, taken either individually or collectively, do not constitute special reasons under Rule 22. The Respondent submits that the Applicant has failed to set out that there was any bad faith on the part of the Respondent.
[20] Rule 22 of the Federal Court Immigration Refugee Protection Rules reads as follows:
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22. No costs shall be awarded to or payable by any party in respect of an application for leave, an application for judicial review or an appeal under these Rules unless the Court, for special reasons, so orders. |
22. Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, la demande d'autorisation, la demande de contrôle judiciaire ou l'appel introduit en application des présentes règles ne donnent pas lieu à des dépens. |
[21] Justice Dawson held in Johnson v. Canada (M.C.I.), [2005] F.C.J. No. 1523, 2005 FC 1262 [“Johnson”], at paragraph 26, that “Special reasons may be found if one party has unnecessarily or unreasonably prolonged proceedings, or where one party has acted in a manner that may be characterized as unfair, oppressive, improper or actuated by bad faith.”
[22] In this case, the Respondent conceded that the matter should be sent back for re-determination, which, in normal circumstances, would normally be a factor suggesting that costs are not in order: Johnson, above, at para. 27. Moreover, in this case, Applicant’s counsel unreasonably prolonged proceedings by spending the entire time allotted for the initial hearing to present her Applicant’s view of the case, without leaving the Respondent an opportunity to present arguments. Applicant’s counsel had been asked in advance of the hearing whether a longer initial hearing should have been scheduled, and she informed the Court that the matter could be completed within the allotted timeframe. The conduct of Applicant’s counsel led to an unnecessary adjournment, which in this case was particularly unfortunate, as it caused needless delay which was no doubt the source of further hardship for the Applicant and his family.
[23] Nevertheless, in this case, the Respondent’s conduct has been so unfair that it is quite understandable that the Applicant did not agree to a consent order, and preferred to have the matter reviewed by the Court. The Applicant has already seen that sending a matter back on consent has not led to a proper re-determination of his case. Following Justice MacKay’s comments made in obiter in his 2000 stay decision, the Applicant and Respondent agreed that the H&C decision by Immigration Officer Mary Leahy Bennett should be sent back on consent. Justice MacKay made it very clear at paragraph 17 of his reasons that, in his view, the Officer had failed to consider the 1997 Adjudicator’s decision. Yet in the present decision under judicial review, a different visa officer failed to consider the 1997 Adjudicator’s decision.
[24] As noted above, the November 2004 decision must be sent back for re-determination not only because the visa officer failed to consider the 1997 Adjudicator’s decision, but also because the visa officer made his decision at a premature date, failed to give the Applicant the opportunity to respond to the case, considered information that was not put to the Applicant, and may have been improperly influenced by, and at a minimum engaged in improper communication with the GTEC War Crimes Division. Any of these errors would independently have led the Court to quash the visa officer’s decision.
[25] Justice MacKay wrote in 2000 that although he was precluded from granting the Applicant a stay from removal, he had great concern that the Applicant had not been treated fairly by the authorities. At paragraph 17 of his reasons in IMM-2539-00 Justice MacKay wrote:
That said, in my opinion this case demonstrates significant inconsistency on the part of the Immigration Department in dealing with Mr. Ramirez-Perez over the years. He has apparently held employment authorizations over the years, his wife"s first application to sponsor him for landing in Canada was approved in principle in 1993 despite the CRDD panel decision in 1992 that he was not a convention refugee on grounds that would have precluded his admission from abroad. Those grounds were later found not to be established at an inquiry by an adjudicator in 1997. He has then been permitted to submit a further sponsorship application. When that is finally considered in April and May of this year, by a Regional War Crimes Unit, a decision is rendered which, relying on the 1992 CRDD decision and ignoring the decision of the adjudicator in 1997, indicates the decision maker is not convinced he is not one prohibited from entry from abroad under paragraph 19(1)(j) as if the onus were on the applicant to establish, without any notice to him, that this is to be a matter for reconsideration and that the onus is on him to prove he is not within that paragraph. Then with a negative decision he is advised on May 12 to report for removal from Canada, 11 days later.
[26] It is highly troubling that nearly six years after Justice MacKay expressed concern that the Applicant was being treated with “significant inconsistency”, the only consistency that has developed has been the visa officer’s ability to ignore the Adjudicator’s 1997 decision.
[27] In my view, the Respondent has acted in an unfair manner in its continued inability to render a decision in the Applicant’s case without proper regard to the entirety of the evidence. In the particular circumstances of this case, I believe that although the Applicant’s counsel delayed these proceedings, there are still special reasons to award costs in the amount of $750 to the Applicant.
Conclusion
[28] In short, the visa officer’s decision dated November 23, 2004 is quashed. The matter shall be sent back for a new hearing before a new visa officer. The new visa officer, in rendering his or her decision, must consider all of the facts and evidence of this case, including the Adjudicator’s decision of May 29, 1997.
[29] The Applicant requested that the Court certify the following question:
Is the Minister bound, under the principle of res judicata, to accept as determinative an Immigration Adjudicator’s decision on admissibility, made pre-IRPA?
[30] Given the decision in this case, it is not necessary for me to certify a question on behalf of the Applicant.
JUDGMENT
The application for judicial review is allowed. The matter is returned for a new hearing before a different visa officer in accordance with these reasons. Costs in the sum of $750.00 are awarded in favour of the applicant. No question is to be certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4227-05
STYLE OF CAUSE: Samuel Jonathan Ramirez Perez v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATESOF HEARING: March 29, 2006 and August 15, 2006
REASONS FOR JUDGMENT: TEITELBAUM J.
APPEARANCES:
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Patricia Wells
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John Loncar
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SOLICITORS OF RECORD:
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PATRICIA WELLS Barrister and Solicitor TORONTO, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada
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