Date: 20011009
Docket: IMM-4613-00
Neutral Citation: 2001 FCT 1103
BETWEEN:
SABYR TELEMICHEV
SVETLANA TELEMISHEV
ALAN TELEMISHEV
Applicant
- AND -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
A. INTRODUCTION
[1] The central question raised by this application for judicial review is whether the Refugee Division (the "panel"), in its decision of August 21, 2000 denying refugee status to the applicants, correctly applied the principles laid down in Vasquez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. no. 1340, rendered on September 24, 1998, with additional reasons, [1998] F.C.J. no. 1769, rendered on November 26, 1996 [sic], a decision of Mr. Justice Rothstein, then a judge in the Trial Division.
[2] The Vasquez decision is cited because the applicants are making their second claim for refugee status in Canada, their first application having been dismissed by the panel in November 1998.
[3] The claimants make up a family. The father, Sabyr Telemichev, is of Kyrgyz nationality and his religion is Muslim. The mother, Svetlana Telemishev, is Jewish and her internal passport of the State of Israel refers to her as being of Jewish nationality. The child Alan, aged 7, was born in Kyrgyzstan.
[4] The family lived in Israel from August 1994 to March 1996 before coming to Canada on March 23, 1996 to claim refugee status. The applicants are citizens of Israel.
[5] Their first claim having failed, the applicants left Canada and resided in Mexico, where they submitted an immigration application to the Quebec government, but without success. In January 2000, the family returned to Canada, where Ms. Telemishev gave birth in April 2000.
B. PANEL'S DECISION
[6] The panel notes that in the father's case there was no new fact raised in comparison with his first claim. As for the mother, the panel writes, at page 2:
[Translation] As to Ms. Svetlana, she had the intellectual honesty to admit that personally she did not fear a return to Israel but that she feared for the child, Alan; Mr. Sabyr, similarly, expressed his fears for Alan who would have some problems in school and in society, as he is now seven years old.
[7] The panel quotes an extract from the supplementary reasons in Vasquez as the basis for its decision not to recognize the applicants as Convention refugees:
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. [Emphasis added]
[8] The panel's decision reads:
[Translation]
In view of the fact that the claimants have not demonstrated a well-founded fear of persecution in the event of their return to Israel;
In view of the fact that there is res judicata;
In view of the fact that there are no new facts raised that could not have been cited during the hearing on the initial asylum claim;
In view of the fact, in the specific case of the female claimant, there is an admission by counsel that she does not have a fear of persecution if she were to return to Israel;
The panel does not recognize Mr. Sabyr TELEMICHEV, Ms. Svetlana TELEMISHEV and their son Alan TELEMICHEV as "Convention refugees" as defined by the Act.
C. POSITION OF APPLICANTS
[9] The applicants' counsel does not dispute the panel's findings that:
(1) the second claim by the father, Sabyr Telemichev, was based on the same facts that were before the first panel. His personal information form was essentially the same in both cases; there was no new fact;
(2) The mother, Svetlana Telemichev, has no fear of return to Israel.
[10] Mr. Lebrun argues that the evidence before the panel that examined the second claim by the applicants was fundamentally different from the first, since it was directed to the fear of persecution of the child Alain, a fear emanating from the fact that he must now enroll in school.
[11] The applicants submit that they were entitled to present complementary updated evidence for the purpose of establishing this reasonable possibility of persecution, especially since the Refugee Division had not, on the first claim, specifically examined the child's evidence, in view of his young age at that time.
[12] According to the applicants, the panel could not overlook the evidence in relation to the child, Alan, and the fact that the passage of time now placed him in an entirely different situation from the one that prevailed at the time of the first hearing, i.e. his admission to school in Israel.
[13] The applicants say that the second panel ruled out the following documentary evidence:
[1] a document from the Documentation, Information and Research Branch of the Immigration and Refugee Board dated February 1993, entitled "[Translation] Israel: Jews from the former Soviet Union"; and
[2] a news report from Agence France-Presse dated July 23, 1997, entitled "[Translation] Israeli Jews racists toward some Arabs and immigrants".
[14] The applicants raise a second point related to the interpretation of the Immigration Act, which in section 46.01 recognizes the possibility of making more than one claim and they submit that the Vasquez decision has a supra-legislative effect that nullifies this right recognized by Parliament.
D. LEGISLATION
[15] The relevant provisions of the Immigration Act (the "Act") are:
| 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 (a) has been recognized as a Convention refugee by a country, other than Canada, that is a country to which the person can be returned; (b) came to Canada, directly or indirectly, from a country, other than a country of the person's nationality or, where the person has no country of nationality, the country of the person's habitual residence, that is a prescribed country under paragraph 114(1)(s); (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(5) Last coming to Canada (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. [Emphasis added] |
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_: a) il s'est déjà vu reconnaître le statut de réfugié au sens de la Convention par un autre pays dans lequel il peut être renvoyé; b) il est arrivé au Canada, directement ou non, d'un pays -- autre que celui dont il a la nationalité ou, s'il n'a pas de nationalité, que celui dans lequel il avait sa résidence habituelle -- qui figure dans la liste établie en vertu des règlements d'application de l'alinéa 114(1)s); 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; d) le statut de réfugié au sens de la Convention lui a été reconnu aux termes de la présente loi ou des règlements; . . . 46.01(5) Séjour à l'étranger (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. [je souligne] |
|
E. ANALYSIS
(1) Scope of the Vasquez decision
[16] In Vasquez (September 24, 1998), supra, Rothstein J. interprets section 46.01 of the Act and, more particularly, paragraph 46.01(1)(c) and subsection 46.01(5), cited above. Here is how Rothstein J. interpreted these statutory provisions:
[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. [Emphasis added]
[17] In the case before him, Rothstein J. was seized of a claim based on subsection 2(3) of the Act, citing evidence in relation to facts that had occurred in 1980 and that were known at the time of the initial claim in 1992. This factual situation raised a preliminary issue as to whether the Board had jurisdiction to examine the applicant's subsection 2(3) claim in the circumstances. The judge reasoned as follows in his decision of September 24, 1998:
[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] 1 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). [Emphasis added]
[18] In Vasquez, Rothstein J. rendered some supplementary reasons on November 26, 1998, in which he says that the only issue was whether the assessment of the applicant's claim ought to be based on evidence arising after the date of dismissal of his initial credible basis claim, April 23, 1992. Rothstein J. notes that some of the facts and arguments the applicant wished to make were made before the credible basis tribunal but others, such as the subsection 2(3) arguments, could have been made but were not.
[19] Rothstein J. then discusses the res judicata issue:
[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." [Emphasis added]
[20] Rothstein J. concludes his analysis (in words that were quoted by the panel in its reasons for decision):
[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. ... New arguments relating to subsection 2(3) could have been raised before the credible basis tribunal but were not....
[9] There are no special circumstances warranting the introduction of evidence that was previously available.
[21] I fully subscribe to the principles laid down by Rothstein J. in the two reasons for judgement he wrote in the Vasquez case. Those principles follow logically from the case law of the Supreme Court of Canada that is cited by him.
[22] In refugee claims, the principle of issue estoppel, the second element in the res judicata principle, follows directly from the language of the Act and has its source in subparagraph 46.01(1)(c)(i), to which subsection 46.01(5), which allows a second claim in a prescribed circumstance, is an exception.
[23] The interpretation of a statute is always a search for Parliament's intention, applying the method described by Elmer Driedger in his book, The Construction of Statutes (2nd ed.), 1983, the method adopted by Iacobucci J. in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at page 41:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[24] It seems clear to me that, in authorizing the filing of a second claim, Parliament had no intention of completely rejecting a previous decision of the Refugee Division denying the claim, for several reasons.
[25] Such an interpretation would effectively minimize paragraph 46.01(1)(c) of the Act.
[26] Moreover, it would in my opinion be contrary to the purpose of the Act and the Convention, under which only those who are being persecuted warrant international protection. In my opinion, an interpretation that ignored the principle of res judicata would sanction many abuses and lead to a de facto recognition by Canada of a person who is not really a refugee.
[27] Consequently, the panel was correct to cite the principles in the Vasquez decision.
(2) Application to the case at bar
[28] In regard to Alan's claim, his parents testified to the second panel about what he had experienced as a three-year-old boy in Israel, between 1994 and 1996:
(1) Because of his appearance, he will be a victim of persecution and will be beaten; "[Translation] He cannot go to a normal school where the children study... he can't because they were going to make fun of him, even the previous experience when he wasn't even going to school yet, when everyone was looking at him who was he, whether he was Jewish why are you living here, everyone was surprised" (transcript, pages 23 and 24).
(2) The testimony of Alan's mother that the children in the school are cruel, that Alan will be insulted, harassed and will be separated from society and will not grow up normally.
(3) The young Alan has since then, that is, at the age of three, experienced persecution.
(4) The testimony of Svetlana Telemichev about a telephone call from her mother in Israel who advised her not to return because nothing has changed and that she thinks it is very dangerous there for her son at school.
(5) The panel member asks her this question: "[Translation] So, if I clearly understood what you were saying, from the last hearing up to now, you are saying that you personally have not experienced any changes, that everything has remained the same." Answer: "Yes". (transcript, page 39)
[29] I think the panel was correct in concluding that the young Alan's claim was res judicata; the fact that he will enroll in school upon his return to Israel does not constitute any new fact that was not known at the time of the examination of the initial claim. Also, the claimants are relying on documentary evidence dating from 1993 and 1997, evidence that existed at the time their first claim was examined by the Refugee Division, on November 27, 1998.
[30] Having read the transcript, I conclude that Alan's enrolment in school is simply a new argument that should have been presented on the first claim.
[31] I would add that the first panel cited a second reason for dismissing their claim, at page 3:
[Translation]
The panel further noted that the claimants did not make a sufficient attempt to obtain protection by their country before requesting international protection by Canada. Since the panel does not believe the story about persecution as alleged by the claimants, it will touch only briefly on the topic of protection, but it does want to say that the documentary evidence concerning Israel shows that this country has provided itself with many different remedies, all of them available to its citizens independent of their nationality.
In this regard, the claimants were unable, in their testimony and their account, to demonstrate by means of "clear and convincing" evidence -- the test set out by the Supreme Court of Canada in the Ward decision -- that the State of Israel had failed in its mission.
[32] In their second claim and their testimony before the second panel, the claimants did not address this issue.
F. DECISION
[33] For all of these reasons, this application for judicial review is dismissed.
[34] Mr. Lebrun stated two questions for certification pertaining to a claimant's right to a full hearing within the meaning of Singh v. The Minister of Employment and Immigration, [1985] 1 S.C.R. 177, and, in that context, a second question pertaining to the duty of the Refugee Division to examine all of the evidence, both old and new, that is filed. I do not accept Mr. Lebrun's invitation, since I have no hesitation in concluding that the principle of res judicata is a fundamental principle of public order and applies to a second claim.
"François Lemieux"
J.
Ottawa, Ontario
October 9, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-4613-00
STYLE: SABYR TELEMICHEV ET AL. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 20, 2001
REASONS FOR ORDER OF LEMIEUX J.
DATED: OCTOBER 9, 2001
APPEARANCES:
Michel Le Brun FOR THE APPLICANTS
Guay Lamb FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada