Date: 19981126
Docket: IMM-1979-97
BETWEEN:
SANTIAGO BENITEZ VASQUEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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] The only issue is whether the assessment of the applicant's claim must be based on evidence arising after dismissal of his credible basis claim on April 23, 1992.
[3] Applicant's counsel relied on subsection 46.01(5) of the Immigration Act, R.S.C. 1985, c. I-2, for the proposition that the applicant, who had been out of Canada for more than ninety days, was entitled to make a new Convention refugee application in Canada. However, subsection 46.01(5) is not engaged in this case. Its application is contingent upon paragraph 46.01(1)(c) being applicable. It is not applicable because the applicant's prior claim was decided by a credible basis tribunal and not the Refugee Division. Paragraph 46.01(1)(c) and subsection 46.01(5) provide:
| 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 subsection 44(1) that is applicable in this case. Subsection 44(1) provides:
| 44. (1) Any person who is in Canada, other than a person against whom a removal order has been made but not executed, unless an appeal from that order has been allowed, and who claims to be a Convention refugee may seek a determination of the claim by notifying an immigration officer. |
The applicant is in Canada. The exemptions do not apply to him as he left Canada and returned. I see no reason why he may not make a Convention refugee claim under subsection 44(1).
[5] However, that still does not deal with whether he may raise issues that he raised or could have raised before the credible basis tribunal. In proceedings before the CRDD, the applicant argued that he should be entitled to bring forward facts and arguments relating to his experiences in El Salvador prior to April 23, 1992 when the negative credible basis decision was made, including experiences he said engage subsection 2(3) of the Immigration Act. Subsection 2(3) provides:
| (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. |
Some of the facts and arguments he wished to make were made before the credible basis tribunal and others, such as the subsection 2(3) arguments, could have been made but were not.
[6] The fact that there was a prior determination by a credible basis tribunal gives rise to the question of res judicata. The requirements for issue estoppel, (what Dickson J. (as he then was) in Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 said was a second species of res judicata, the first being cause of action estoppel), are:
(1) The same question has been decided.
| (2) The decision was final. |
(3) The parties in both proceedings are the same.
I think these conditions are present here.
[7] The relevant principle is well-known. In Town of Grandview v. Doering (1975), 61 D.L.R. (3d) 455 at 458, Ritchie J., for the majority, referred with approval to Fenerty v. The City of Halifax (1920), 50 D.L.R. 435 at pp. 437-438, in which the Supreme Court of Nova Scotia stated:
| The doctrine of res judicata 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." |
[8] The principle is that a party, having received a final decision, is prevented from relitigating the matter notwithstanding that the party has found supplementary arguments that were available at the time of the original litigation. That is what the applicant was attempting before the CRDD. However, the credible basis tribunal found that there was no credible basis for the applicant's Convention refugee claim. In essence, it found he could not be a Convention refugee in Canada, the same issue as before the CRDD in 1997. New arguments relating to subsection 2(3) could have been raised before the credible basis tribunal but were not. That does not make it proper for them to be made before the CRDD. The CRDD considered the applicant's subsection 2(3) arguments but was not persuaded by them. In my view, these arguments should not have been considered by the CRDD. In any event, the result is the same.
[9] There are no special circumstances warranting the introduction of evidence that was previously available.
[10] The judicial review is dismissed.
Marshall Rothstein
J U D G E
OTTAWA, ONTARIO
NOVEMBER 26, 1996