Date: 20030909
Docket: IMM-4195-02
Citation: 2003 FC 1050
OTTAWA, ONTARIO, THIS 9th DAY OF SEPTEMBER 2003
Present: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
HASAN MAHMUD CHOWDHURY
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Division (the "Board"), dated August 20, 2002, wherein it decided that the applicant was not a Convention refugee.
BACKGROUND
[2] The applicant, a 34 year-old citizen of Bangladesh, claims a well-founded fear of persecution by reason of his political opinion and membership in a particular social group - he is a member and a leader of the student wing of the Bangladesh Nationalist Party (BNP). He complains that he was a victim of violence and unfair treatment by the police and members of the opposite party, the Awami League.
[3] More particularly, on August 30, 1997, he was arrested at home and taken to jail where he was allegedly beaten by the police. There, he was detained all day until he was taken to Court at about 5:00 o'clock p.m. to be charged with extortion and property damage and denied bail. In September 1997, he was again taken before the Court and denied bail. On September 23, 1997, he was then released on bail and was ordered to report monthly to the police until his trial. The applicant did report twice, the last time being at the end of October 1997. In February 1998, the applicant fled to Dhaka. He arrived at Pearson International Airport on April 24, 1998, at which time he made a refugee claim. The applicant fears for his life and submits that the charges brought against him are false and are politically motivated.
[4] The Board held hearings on November 2, 2000, February 19, 2001 and July 9, 2002. The Minister of Citizenship and Immigration participated at the hearing, as matters involving Article 1F (b) of the Convention have been raised by this claim. This provision reads as follows:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
...
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
[5] The Minister submitted that there are serious reasons for considering that the applicant participated in extortion and property damage (mischief) in Bangladesh prior to his admission in Canada, both of which are serious offences and would justify the applicant being excluded from the protection of Article 1F (b). According to the evidence on record, charges to that effect were laid by the police on August 30, 1997, and relate to an incident that allegedly occurred on August 28, 1997. At the outset of the hearing, the applicant asked the Board to decline jurisdiction with respect to the allegation that there are serious reasons for considering that he committed the offence of extortion. The applicant's counsel argued that an adjudicator had already made an inquiry with respect to this allegation and dismissed it. In this regard, on June 16, 1999, Adjudicator Ms. C. Simmie (the "Adjudicator") ruled that the applicant was not a person described in subparagraph 19(1)(c.1)(ii) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
[6] This provision reads as follows:
| 19. (1) No person shall be granted admission who is a member of any of the following classes:
...
(c.1) persons who there are reasonable grounds to believe
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(ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more,
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19. (1) Les personnes suivantes appartiennent à une catégorie non admissible :
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c.1) celles dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger :
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(ii) soit commis un fait -- acte ou omission -- qui constitue une infraction dans le pays où il a été commis et qui, s'il était commis au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis la commission du fait;
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[7] The Adjudicator's decision was not produced but the Board accepted a statutory declaration from the applicant (filed as Exhibit C-4, certified record, pages 107-8) stating that the Adjudicator found that there was insufficient evidence to find on reasonable grounds that he was a person who had committed the offence of extortion (marked as Exhibit "B" to the Statutory Declaration, certified, record page 110) alleged in the report made under subparagraph 20(1)(a) of the Act which reads:
| 20. (1) Where an immigration officer is of the opinion that it would or may be contrary to this Act or the regulations to grant admission to a person examined by the officer or otherwise let that person come into Canada, the officer may detain or make an order to detain that person and shall
(a) subject to subsection (2), report that person in writing to a senior immigration officer; or
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20. (1) L'agent d'immigration qui, après interrogatoire, estime que le fait d'admettre ou de laisser entrer l'intéressé au Canada contreviendrait ou pourrait contrevenir à la présente loi ou à ses règlements peut le retenir ou prendre une mesure à cet effet. Il est tenu :
a) soit, sous réserve du paragraphe (2), de signaler son cas dans un rapport écrit, à un agent principal;
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[8] The applicant submitted that the Adjudicator's decision in this regard was final and that the Minister was estopped from asking the Board to exclude him on the same allegation. The Minister's representative recognized that the parties were involved in both proceedings are the same but submitted that the other requirements for issue estoppel or res judicata were not met. In particular, the question must be the same and the decision which is said to create the estoppel must be final. The Board denied the applicant's motion based on the fact that the Adjudicator's decision was not "final". Accordingly, the Board interpreted section 34 of the Act as being a provision that would allow further inquiries with respect to the applicant (oral decision communicated on February 19, 2001, certified record, pages 572-73).
[9] Section 34 of the Act reads as follows:
| 34. 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. |
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34. Les décisions rendues en application de la présente loi n'ont pas pour effet d'interdire la tenue d'une autre enquête par suite d'un autre rapport fait en vertu de l'alinéa 20(1)a) ou des paragraphes 27(1) ou (2) ou par suite d'une arrestation et d'une garde effectuées à cette fin en vertu de l'article 103. |
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[10] Further to this interlocutory decision, the Board heard both the Minister's and the applicant's evidence. In its final decision, the Board found that the applicant cannot rely on the Convention refugee protection by virtue of Article 1F (b). The Board determined that there are serious reasons for considering that on August 28, 1997, the applicant had committed the serious non-political crimes of extortion and mischief actually endangering life, such that charges were brought against him by the police on August 30, 1997. While there are supporting letters in the record suggesting that the charges were political, the general statement is to the effect that the applicant is a good person and that he is not a criminal. Moreover, the Board noted that "none of these letters attest to a specific alibi". The Board also considered the documentary evidence suggesting that police in Bangladesh have been known to lay politically-motivated false charges. However, according to the Board, the specific complaint against the applicant was detailed and originated from a restaurant owner with no political affiliation. Consequently, the Board found the charges against the applicant not to be politically motivated.
ISSUES
[11] Before this Court, the applicant addressed issues both with the preliminary finding made by the Board on the issue of res judicata or issue estoppel and its findings on the merits with respect to the exclusion:
(a) Firstly, the applicant submits that the Board erred in law and exceeded jurisdiction in determining that the applicant was excluded despite the prior finding by an Adjudicator that the applicant was not described as person who was inadmissible to Canada in relation to the same facts and same parties and essentially the same allegation. The applicant submits that this issue could not be relitigated and that the Board erred in law in determining that the Adjudicator's decision was not "final".
(b) Secondly, the applicant submits that the decision to exclude the applicant is based on an erroneous finding of fact that the Board made in a perverse or capricious manner or without regard for the material before it. The applicant submits in this regard that the Board found that despite the fact that the documentary evidence corroborated that the charges could be politically motivated and that letters from the applicant's party attesting to that were authentic, the applicant was excluded because of the statement from the alleged victim;
(c) Thirdly, the applicant submits that the Board erred in law in requiring alibi evidence since there is no such requirement under the law.
DETERMINATION
[12] I have decided to allow the present judicial review application. First, the Board's analysis (certified record, pages 572-3) on the issue of res judicata or issue estoppel is perfunctory and incomplete. It does not permit the Court to determine whether the criteria to apply res judicata or issue estoppel where properly understood and applied in this particular case. Second, the Board's finding that the Adjudicator's decision was not final is an error of law, as it is based on an incorrect interpretation and application in this case of section 34 of the Act. Third, assuming that the application of the estoppel doctrine also raises mixed questions of fact and law, I find that the Board's decision is unreasonable based on a reasonabless simpliciter standard. The errors of law and omissions mentioned in the following analysis are material and affect the Board's final decision. The Board's decision is quashed and this Court orders that the matter be referred back for redetermination and re-hearing. Accordingly, it is not necessary that I deal with the other issues raised above.
ANALYSIS
[13] First and foremost, as a matter of law, there is a distinction to be made between "cause of action estoppel" and "issue estoppel". Second, as we will later see, as a matter of discretion, the tribunal may refuse to apply estoppel.
[14] As noted by the Federal Court of Appeal 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).
(My emphasis)
[15] In Danyluk v. Ainsworth Technologies, [2001] 2 S.C.R. 460, Binnie J. who wrote the judgment rendered by the Supreme Court of Canada, states at paragraph 54:
A cause of action has traditionally been defined as comprising every fact which it would be necessary for the plaintiff to prove, if disputed, in order to support his or her right to the judgment of the court: Poucher v. Wilkins (1915), 33 O.L.R. 125, 21 D.L.R. 444 (C.A.). Establishing each such fact (sometimes referred to as material facts) constitutes a precondition to success. It is apparent that different causes of action may have one or more material facts in common. In this case, for example, the existence of an employment contract is a material fact common to both the ESA proceeding and to the appellant's wrongful dismissal claim in court. Issue estoppel simply means that once a material fact such as a valid employment contract is found to exist (or not to exist) by a court or tribunal of competent jurisdiction, whether on the basis of evidence or admissions, the same issue cannot be relitigated in subsequent proceedings between the same parties. The estoppel, in other words, extends to the issues of fact, law, and mixed fact and law that are necessarily bound up with the determination of that "issue" in the prior proceeding.
(My emphasis)
[16] As we can see, the main distinction between the two estoppels resides in the respective meanings of "question" and "cause of action": the first being broader than the second. In the case at bar, I find that "issue estoppel" really describes the motion made by the applicant. However, it is not clear in reading the Board's interlocutory decision whether it understood this fundamental distinction. Moreover, in the case at bar, the Board focussed solely on the second criteria (the finality of the Adjudicator's decision) and failed to specifically address the first and third criterias (same question and same parties). I find that three pre-conditions for raising issue estoppel exist in the present case.
[17] It is obvious that the parties involved in both proceedings are the same. Moreover, it is apparent that the Adjudicator's decision was made in a judicial manner and that an inquiry on the merits of the allegation of extortion was conducted by the Adjudicator in the manner provided by the Act (see sections 29 to 36). In both instances, the inadmissibility or exclusion of the applicant would be a result of:
(a) there are reasonable grounds to believe that the applicant has committed in Bangladesh an act that constitutes an offence under the laws of that country and which, if committed in Canada would constitute an offence that may be punishable by an act of Parliament by a maximum term of imprisonment of ten years or more: subsection 19(1)(c.1)(ii); or
(b) there are serious reasons for considering that the applicant has committed in Bangladesh a serious non-political crime: Article 1F (b).
[18] In both proceedings, the inadmissibility or exclusion flow from the allegation that the applicant has committed acts of extortion and related offences in the city of Sylhet, Bangladesh. In the inadmissibility proceeding before the Adjudicator, the report by the immigration officer (certified record, page 110) was based on a police report dated August 30, 1997 (certified record, page 58).
[19] Before the Board, the notice of intention to participate (certified record, page 54) filed on behalf of the Minister indicates at the outset that the police report dated August 30, 1997 constitutes "the primary piece of evidence ... attesting that [the applicant] had participated in the offences [sic] of extortion and property damage in that city [Sylhet, Bangladesh]" (my emphasis). In this police report, the applicant is described as "a notoriously terrorizing type character" and accused "of demanding huge sums of money by terrorizing various hotels and shops, and under-construction buildings by new business". More specifically, the police report alleges that on August 28, 1997 "in the same way his demand for extortion money from one of the hotels in Mirabazar area was not met [the applicant] created a havoc in the Mirabazar area and caused considerable damages to the hotel". This police report was submitted to the Chief Court of First Class Magistrate in Sylhet. As already indicated, the Court denied his first and second bail petitions and the applicant remained in detention until September 23, 1997, when he was released on bail.
[20] As already mentioned, an inquiry was made before an adjudicator to consider the merits of the allegation that the applicant was involved in extortion. Hearings took place at different dates in April, May and June, of 1999 before the Adjudicator. As appears from the uncontradicted statutory declaration (exhibit C-4, certified record, pages 107-8) submitted in support of the applicant's motion before the Board, the Minister was represented at those hearings. Evidence at this hearing was led and the applicant gave oral evidence and was subject to cross-examination. The Adjudicator ruled on June 16, 1999, that the applicant was not a person described in subparagraph 19(1)(c.1)(ii) as there was insufficient evidence to find on reasonable grounds that the applicant had committed the alleged offence of extortion in Bangladesh.
[21] In Halsbury's Laws of England, Fourth Edition Reissue, vol. 16, para. 965, the authors note that "[t]he doctrine of estoppel ... finds expression in two legal maxims, interest reipublicae ut sit finis litium ('it is in the public interest that there should be an end of litigation'), and nemo debet bis vexari pro una et eadern causa ('no one should be proceeded against twice for the same cause'). The authors go on to note that this, "accords with the first of these maxims that a party relying on estoppel ... should be able to show that the matter has been determined by a judgment in its nature final". They also precise that "[w]hen the word 'final' is so used ... it does not mean a judgment which is not open to appeal but merely a judgment which is 'final' as opposed to 'interlocutory'."
[22] In the case at bar, the Board based its finding that the decision of the Adjudicator was not a final one on the purported effects of section 34 of the former Act. Again, this provision reads as follows:
| 34. 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. |
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34. Les décisions rendues en application de la présente loi n'ont pas pour effet d'interdire la tenue d'une autre enquête par suite d'un autre rapport fait en vertu de l'alinéa 20(1)a) ou des paragraphes 27(1) ou (2) ou par suite d'une arrestation et d'une garde effectuées à cette fin en vertu de l'article 103. |
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[23] I cannot infer as the Board did, that section 34 implies that the Adjudicator's decision is not a final one. While section 34 does not prevent the holding of a further inquiry, this can only occur "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". Assuming that section 34 displaces the principle of res judicata, it can only be with respect to the actions that are specifically mentioned in this provision: Al Yamani v. Minister of Citizenship and Immigration, 2002 FCT 1162, [2002] F.C.J. No. 1550, at paras. 32 and 34 and the other cases mentioned therein. In this case, no further reports under paragraph 20(1)(a) and 27(1) or (2) were made. In addition, there is no proof that the applicant was arrested or detained for an inquiry pursuant to section 103. Accordingly, the Board erred in law in finding that the Adjudicator's decision was not a final one.
[24] Before this Court, the Minister argues that the Board ought not be bound by the Adjudicator's finding that there are no reasonable grounds to believe that the applicant has committed in Bangladesh an act of extortion. The Minister submits that the hearing before the Board is different from the one before the Adjudicator and thus the evidence before each tribunal is not identical. The Board would have country condition documents and other material, which enhances its expertise on the situation in Bangladesh. This is in contrast to the Adjudication Division, which enjoys no expertise with respect to country conditions. The Minister submits that there is nothing improper for each tribunal considering the evidence before it and arriving at its own conclusions.
[25] The applicant replies that the allegation that there were reasonable ground to consider that the applicant had engaged in extortion in Bangladesh was thoroughly examined by the Adjudicator. In doing so, the Adjudicator finally determined that the applicant was inadmissible by not having an immigration visa and a conditional departure order was issued (certified report, pages 107-111).
[26] The applicant also refers to the Minister's disclosure package sent to the applicant's counsel on or around October 30, 2000 in anticipation of the hearing of the Board (which started on November 2, 2000). He submits in this regard that all these documents had either been disclosed by him to Immigration Officials before the inquiry or were put in evidence at the inquiry before the Adjudicator (statutory declaration dated December 14, 2000, para. 2, certified record, page 107). The fact that the Minister elected not to present its best case before the Adjudicator is not relevant. The purpose sought by the estoppel doctrine's is that endless litigation is to be avoided. Accordingly, this would be rendered meaningless if the Minister's proposition was accepted.
[27] These arguments were not addressed by the Board in the summary reasons it gave for dismissing the applicant's motion. Before this Court, both parties now raise policy considerations that require a closer scrutiny of the purposes of the inadmissibility and exclusion provisions, the expertises of each tribunal, the circumstances giving rise to the prior inquiry before the Adjudicator and its extent, as well as the potential injustice that may result as a result of re-examining the same allegation before the Board.
[28] The validity of the Adjudicator's decision is not in issue here. Section 71 of the Act provides that the Minister may appeal to the Appeal Division from a decision of an adjudicator in the course of an inquiry on any ground of appeal that involves a question of law or fact or mixed law and fact, while no such right is conferred to the applicant. In the case at bar, the Minister has elected not to appeal the Adjudicator's decision despite the power attributed to the Appeal Division who, pursuant to subsection 72(1), may order that an inquiry that has given rise to an appeal be reopened before the Adjudicator who presided at the inquiry or any other adjudicator for the receiving of any additional evidence or testimony. Had the Adjudicator ruled that there were reasonable grounds to believe that the applicant had committed the alleged offence of extortion, nothing would have prevented the Minister to produce this decision before the Board, and arguing that the first part of the test under Article 1F (b) had been met (leaving the issues related to the "political" aspect and the "seriousness" of the offence).
[29] This Court in Figueroa v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 250 (F.C.T.D.) at para. 11 recognized that paragraph 19(1)(j) of the Act similarly contemplates a "two-pronged test". Pinard J. states:
The applicants further submit that the immigration officer erred in treating paragraphs 1F(a) of the United Nationals Convention Relating to the Status of Refugees (the Convention) and 19(1)(j) of the Act as equivalent.
In this regard, paragraph 19(1)(j) of the Act seems to me to contemplate a two-pronged test: a person belongs to an inadmissible class if it is conceivable, on reasonable grounds, that his or her actions constitute a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and if those actions would constitute an offence in Canada. Subsection 7(3.76) incorporates by reference in Canadian law the international customary and treaty law. In regard to the requisite standard under paragraph 19(a)(j), the Federal Court of Appeal decision in Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306, is instructive, at page 312 (per MacGuigan J.A.):
While I see no great difference between the phrases "serious reasons for considering" and "reasonable grounds to believe," I find no necessity exactly to equate the one with the other, although I believe both require less than the balance of probabilities. "Serious reasons for considering" is the Convention phrase and is intelligible on its own. Nevertheless, the comparison with paragraph 19(1)(j) shows that Parliament was prepared to contemplate a standard lower than the usual civil standard in this kind of case. Moreover, it also leads me to think that it would be extremely awkward to place one standard at the ordinary civil level, and another, for what is essentially the same thing, at a lower level.
In my opinion, a finding that a refugee is excluded from the protection of the Convention under paragraph 1F(a) demonstrates that the first part of the test under paragraph 19(1)(j) of the Act has been fulfilled.
(My emphasis)
[30] The Federal Court of Appeal dismissed the appeal made against this Court's decision in Figueroa and answered in the affirmative to the question certified by Pinard J., and which reads as follows:
Under the power of decision granted to him in paragraph 16.04(3) of the Immigration Act, may an immigration officer, without the intervention of an adjudicator, refuse to grant landing to the applicant and to any dependant for whom landing is sought, on the ground that he is not satisfied that neither the applicant nor any of those dependants is a person described in paragraph 19(1)(j) of that Act?
[31] The effect of the Court of Appeal's decision in Figueroa was considered in Canada (Minister of Citizenship and Immigration) v. Varela, 2002 FCT 167 and in Yassin v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1354, 2002 FCT 1029. In Yassin, at para. 24, Kelen J. concluded on this issue that:
The effect of the Court of Appeal's decision in Figueroa was considered by Mr. Justice Gibson in Varela, supra. At paragraph 24 he stated:
... the Federal Court of Appeal, on the appeal of Mr. Justice Pinard's decision in Figueroa, was at best ambivalent on Mr. Justice Pinard's expression of his opinion at paragraph [15] of his reasons to the effect that "...a finding that a refugee is excluded from the protection of the Convention under paragraph 1F(a) demonstrates that the first part of the test under s.19(1)(j) of the Act has been fulfilled." It can at least be argued that Madame Justice Desjardins' reasons in Figueroa, as cited earlier in these reasons, imply that the issue remains open for determination by an Immigration Officer in the circumstances of Figueroa and, a fortiori in light of the terms of subsection 80.1(1) of the Act, when the issue is before an Adjudicator.
The Federal Court of Appeal in Figueroa relied upon the findings of the CRDD as reasonable evidence on the record about the role Mr. Figueroa played in the Guatemalan secret police, a police force known for human rights abuses and torture. Madame Justice Desjardins determined that the immigration officer had "ample evidence" on which to conclude that Mr. Figueroa was a person described in paragraph 19(1)(j) of the Act. For this reason, I am satisfied that the Federal Court of Appeal implicitly held that an immigration officer can rely upon findings of fact by the CRDD. However, this does not mean a refugee claimant excluded under article 1F(a) is automatically inadmissible under paragraph 19(1)(j) of the Act. As Mr. Justice Gibson stated in Varela, an immigration officer is not bound by the CRDD's decision to reject the claimant's refugee claim on the basis of article 1F(a) when determining inadmissibility under paragraph 19(1)(j).
(My emphasis)
[32] No doubt, the Board and the Adjudicator both have discretion to refuse to apply estoppel, and that this is a "broad" discretion (provided it is exercised in light of all relevant factors). As stated by Binnie J. in Danyluk, supra, at para. 62:
[62] The appellant submitted that the Court should nevertheless refuse to apply estoppel as a matter of discretion. There is no doubt that such a discretion exists. In General Motors of Canada Ltd. V. Naken, [1983] 1 S.C.R. 72, 144 D.L.R. (3d) 385, Estey J. noted, at p. 101, that in the context of court proceedings "such a discretion must be very limited in application". In my view the discretion is necessarily broader in relation to the prior decisions of administrative tribunals because of the enormous range and diversity of the structures, mandates and procedures of administrative decision-makers.
(My emphasis)
[33] Having found that the three pre-conditions for estoppel had been met, the Supreme Court in Danyluk, considered whether it should refuse to apply estoppel "as a matter of discretion". The Supreme Court further stated that "it was an error of principle not to address the factors for the against the exercise of the discretion which the court clearly possessed", and added that "[t]he appellant is entitled at some stage to appropriate consideration of the discretionary factors and to date this has not happened" (para. 66). The Supreme Court indicated in this respect that the list of factors is open, the Supreme Court included many of the same factors listed in R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706 in connection with the rule against collateral attack. A similarly helpful list was proposed by Laskin J.A. in Minott v. O'Shanter Development Co. (1998), 42 O.R. (3d) 321.
[34] Having reiterated that "[t]he 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", the Supreme Court noted seven relevant factors:
(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 given rise to the prior administrative proceedings; and
(g) the potential injustice.
[35] In the case at bar, since the Board concluded that res judicata or issue estoppel did not apply, it did not address the question of discretion, and I question whether the Board was aware that it had such discretion. Considering this Court sits in judicial review of the decision of the Board, the Court's jurisdiction is to determine whether the Board's decision is either correct, patently unreasonable or reasonableness simpliciter depending on the applicable standard. Therefore, Court's remedial powers in the present case are different from the Supreme Court's authority in Danyluk. The later case concerned an appeal of a decision of a superior court of record, while in this case, an application for judicial review of an administrative tribunal decision has been made. Here, the Court's available remedy is to order a redetermination of the case by the Board (Rafuse v. Canada (Pension Appeals Board) (2002), 286 N.R. 385 (F.C.A.)). Therefore, I will refrain from exercising the discretion vested in the Board, bearing in mind that the tribunal has the authority to determine whether the interests of justice require that the principle of res judicata or issue estoppel be not adhered to.
[36] Therefore, based on the above reasons, I will allow the application for judicial review and order a redetermination of this case before a differently constituted panel. I have also examined the parties respective submissions with respect to certification. In view of the particular results of this case, considering that the issue of discretion was not raised before the Board and that a proper record is needed, no serious question of general importance will be certified for appeal.
ORDER
THIS COURT ORDERS that the application for judicial review of the decision of the Immigration and Refugee Board, Refugee Division, dated August 20, 2002, wherein it decided that the applicant was not a Convention Refugee pursuant to Article 1F (b) of the Convention, be allowed. The decision is quashed and the matter is remitted back to a differently constituted panel. No serious question of general importance will be certified.
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Judge
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4195-02
STYLE OF CAUSE: HASAN MAHMUD CHOWDHURY v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 8, 2003
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: September 9, 2003
APPEARANCES:
MR. MICHAEL CRANE FOR THE APPLICANT
MR. MARCEL LAROUCHE FOR THE RESPONDENT
SOLICITORS OF RECORD:
MR. MICHAEL CRANE FOR THE APPLICANT
TORONTO, ONTARIO
MR. MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA