Federal Court Decisions

Date: 20041123

Docket: IMM-356-04

Citation: 2004 FC 1641

BETWEEN:

                                                                JANOS ERDOS

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]                These reasons follow the hearing of an application for judicial review of a decision of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board wherein the RPD determined the Applicant not to be a Convention refugee or a person otherwise in need of protection and further determined that there was no credible basis for the Applicant's claim. The RPD's reasons are dated the 30^th of December, 2003.

BACKGROUND

[2]                This is not the first time the Applicant's current claim for Convention refugee or like status in Canada has come before this Court. In Erdos v. Canada (Minister of Citizenship and Immigration)^[1], my colleague Justice Russell noted that the same Applicant, a citizen of Hungary, "...claims a well-founded fear of persecution based on his Roma ethnicity and political opinion." Justice Russell went on at paragraphs [2] to [4] of his reasons to succinctly describe the background to the Applicant's current claim in the following terms:

The Applicant claims that, while living in Hungary, he worked on a secret government project called Citadella. He sought and was granted political asylum in the 1970s but he returned to Hungary in 1985 after 11 years because of the poor health of his wife. Upon his return to Hungary, the Applicant claims that he was questioned by the secret police, badly beaten, subjected to electrical shocks and threatened with a gun.

The Applicant's first wife died in 1987 and he remarried in 1988. He and his new wife came to Canada in September 1989 where they made a refugee claim. They did not mention that they were Roma in that claim. They were refused convention refugee status in Canada and went to the U.S. in November, 1992. There they applied for political asylum, which was also refused. The Applicant's second wife died in the U.S.

On November 25, 2000, the Applicant was told by the U.S. to voluntarily leave the country or he would be deported. Upon returning to Hungary, the Applicant was accused of being an American spy by the secret police. He claims to have been detained, interrogated, tortured, beaten, and drugged. The Applicant then returned to Canada on December 14, 2000 and claimed refugee status on December 27, 2000. The hearing with the Board took place on October 8, 2002, and a decision was rendered on October 22, 2002 ... . At the Hearing, the Applicant raised new information about the death of his brother while in the custody of Hungarian police.

[3]                Justice Russell granted the application for judicial review that was before him and referred the Applicant's application for protection in Canada back to the Immigration and Refugee Board for rehearing and redetermination. It is the decision of the RPD on the rehearing and redetermination that is the subject matter of this judicial review.

[4]                While Justice Russell found several reviewable errors in the decision of the RPD that was before him, those most relevant are reflected in paragraphs [20] and [31] of his reasons. Those paragraphs read as follows:

In effect, the Board could not accept the Applicant's evidence regarding the death of his brother, his Roma background and certain embellishments produced in his second narrative. But there were other important aspects of the claim, namely the whole political dimension, that the Board should have addressed more fully to decide whether Convention refugee status was proved. In failing to do so the Board committed a reviewable error.

...

Although I recognize that the issues in Ahangaran, ..., were more peripheral than in the case at bar, I agree with the Applicant that the Board failed to properly evaluate the credibility of his evidence on the central aspects of his claim. This was a reviewable error.                                                   [citation omitted, emphasis added]

[5]                The Applicant's credibility with regard to his experiences in Hungary prior to his first arrival in this country in September of 1989 was evaluated by the Convention Refugee Determination Division, the predecessor to the current RPD, in its 1992 decision with respect to the Applicant's first claim to Convention refugee status in Canada. In its reasons, the Convention Refugee Determination Division, while rejecting the Applicant's claim, essentially on the basis of changed country conditions in Hungary, wrote:

In my view, this claim does not raise any issues of credibility. Mr. Erdos was a credible witness who testified in painful detail about the experiences he had in Hungary with the secret police. I believe his testimony.^[2]

[6]                At the hearing before the RPD that led up to the decision here under review, counsel for the Applicant provided extensive submissions as to the impact of the above noted credibility determination.^[3]

[7]                Counsel urged, by reference to a number of authorities, that res judicata applied by reason of issue estoppel. He concluded his extensive submissions on the subject in the following terms:

All right. If you accept that, that leaves the Board with a relatively limited scope for decision. This is my position, that there's only in terms of credibility a couple of matters that the Board has to decide. One is about the Roma issue; is he or is he not a Roma. The second is the events of 2000; did they or did they not happen. Everything else, I would submit, is already determined by the prior hearing [the 1992 hearing].

THE DECISION UNDER REVIEW

[8]                The RPD essentially rejected counsel's submission just quoted. It wrote:

Counsel argued that as the first panel determined on 30 March 1992 that the claimant was a credible witness, this panel should also make the same finding in regards to his allegations including frequent arrests, detention, interrogation, and torture from the authorities in Hungary before he left Hungary in 1989. The panel noted the Federal Court's decision dated 8 August 2003 [Justice Russell's decision] to set aside the previous determination of 22 October 2002 and to refer the claim for re-determination, stated that the previous panel on 22 October 2002 failed to properly evaluate the credibility of the claimant's evidence on the central aspects of his claim. The panel considered the panel's determination on 30 March 1992 regarding the claimant's credibility, however, the panel of March 1992 did not have all of the evidence before it when they made their decision, and as such the panel is not going to speculate on whether or not their decision would have been different after reviewing or considering all the later evidence submitted by the claimant since that date. Further, this panel is not bound by the previous panel's decision. This panel made a negative credibility finding after considering all the evidence before it, including his two claims within Canada and all related documents submitted.^[4]

[9]                In essence, the RPD, in the decision now before this Court, overturned the credibility decision of the Convention Refugee Determination Division in 1992 and found the Applicant's testimony and documentation with regard to his treatment in Hungary prior to his first arrival in Canada to be not credible.

[10]            The RPD continued later in its reasons:

The panel is applying the doctrine of res judicata and found that the claimant's new evidence of being Roma within his second refugee protection claim entirely changed important aspects of his claim, and the panel found it should have been raised as a basis for his claim during his first hearing if in fact it was true. In particular, he should have stated his allegations that the secret police are persecuting him partly because he is a Gypsy, that he would not be provided protection in Hungary today because of his ethnicity, and that he was denied citizenship in Germany because of his Roma ethnicity. He claimed in his amended narrative dated 5 September 2002 that after living ten years in Germany his request for German citizenship was "turned down" because of the laws pertaining to Gypsies in Germany. In addition, he claimed that, "the prejudice against Gypsies was as bad in Germany as it was in Hungary" so his being in Germany "no longer made a difference to us." Further, he claimed the authorities in Hungary in 1989 before he entered Canada and made his first refugee protection claim, called him a "Dirty Gypsy Traitor". The panel found there are no special circumstances warranting the introduction of evidence in his second claim that was previously available and not presented in his first claim. The panel found the claimant's evidence that he is Roma is simply not credible, and it undermined his overall credibility.^[5]

THE ISSUES

[11]            Counsel for the Applicant urged that the RPD erred in a reviewable manner in two (2) aspects of its decision: first, counsel urged that the RPD erred in law in its treatment of res judicata by issue estoppel when it determined to regard the Applicant's evidence of his pre-1989 treatment in Hungary as not credible; and secondly, counsel urged that the RPD failed to fulfil its duty of fairness to the Applicant when it issued its decision that is under review in a manner that counsel for the Applicant would undoubtedly describe as "precipitously", thus precluding the Applicant from providing to the RPD, post-hearing, a copy of a police report that was referred to during the hearing.

ANALYSIS

Res Judicata and Issue Estoppel

[12]            In Danyluk v. Ainsworth Technologies Inc.^[6] Justice Binnie, for the Court wrote at paragraph [33]:

The rules governing issue estoppel should not be mechanically applied. The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case. (There are corresponding private interests.) The first step is to determine whether the moving party ... has established the preconditions to the operation of issue estoppel set out by Dickson J. in Angle, ... . If successful, the court must still determine whether, as a matter of discretion, issue estoppel ought to be applied: ...                                                                               [citations omitted, emphasis added]

[13]            Thus, an issue estoppel analysis is a two step analysis.

[14]            The preconditions to the operation of issue estoppel are the following:

(1)           that the same question has been decided;

(2)           that the judicial decision which is said to create the estoppel was final; and,

(3)            that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.^[7]

[15]            That the preconditions to the operation of issue estoppel in relation to the credibility of the Applicant's testimony and documentation regarding his pre-1989 experiences in Hungary were credible, would appear obvious if it is accepted that, as between the Convention Refugee Determination Division in 1992 and the RPD, the 1992 decision of the Convention Refugee Determination Division could be regarded as a "judicial decision".

[16]            While the RPD did not expressly determine the preconditions to the application of issue estoppel to have been met, I am satisfied that, in light of the quotations from its reasons that appear earlier in these reasons, that acceptance must be implied.

[17]            With regard to the second step, the determination whether, as a matter of discretion, issue estoppel ought to be applied, Justice Binnie, in Danyluk, supra, wrote at paragraphs [62] and [63]:

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, ..., Estey J. noted, ..., 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.

In Bugbusters, supra, Finch J.A. (now C.J.B.C.) observed, at para. 32:

It must always be remembered that although the three requirements for issue estoppel must be satisfied before it can apply, the fact that they may be satisfied does not automatically give rise to its application. Issue estoppel is an equitable doctrine, and as can be seen from the cases, is closely related to abuse of process. The doctrine of issue estoppel is designed as an implement of justice, and a protection against injustice. It inevitably calls upon the exercise of a judicial discretion to achieve fairness according to the circumstances of each case.

... I think this is a correct statement of the law. ...                                                                                                                [citations and some texts omitted, emphasis added]

[18]            At paragraphs [66] and [67] of Danyluk, Justice Binnie continued:

In my view it was an error of principle not to address the factors for and against the exercise of the discretion which the court clearly possessed. This is not a situation where this Court is being asked by an appellant to substitute its opinion for that of the motions judge or the Court of Appeal. The appellant is entitled at some stage to appropriate consideration of the discretionary factors and to date this has not happened.

... The 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.                                                                                           [some texts omitted]

[19]            I conclude that, in the second paragraph quoted earlier in these reasons from the reasons for decision of the RPD, the RPD, noting that it is applying the doctrine of res judicata, reasonably effectively, if quite inelegantly and indirectly, addresses the factors for and against the exercise of discretion to apply or not apply issue estoppel.

[20]            I have earlier quoted Justice Binnie's statement that the underlying purpose of discretion in applying issue estoppel is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case. I am satisfied that it is essentially those two issues that the RPD here balanced. The Applicant made a successful claim for asylum in Germany many years ago. He chose to reavail by returning to Hungary. Some years later he came to Canada and made a claim for protection here. That claim was unsuccessful. He left for the United States and made a claim there. That claim was unsuccessful. Eventually, he was required by United States authorities to return to Hungary. Shortly thereafter, he returned to Canada and made another claim for protection. He based his second claim in Canada on one or two grounds, among others, that had not previously been put before Canadian authorities. I read the reasons of the RPD as in effect favouring the public interest in the finality of litigation over the public interest that may exist in providing the Applicant with another opportunity to present his case on the basis of the shifting grounds of his claim.

[21]            I recognize that it is a stretch to read all of the foregoing into the reasons of the RPD that are before me. That being said, I am satisfied that it is a stretch that is warranted in all of the circumstances of this application for judicial review.

FAIRNESS

[22]                Counsel for the Applicant referred the Court to a passage in the transcript of the hearing before the RPD in which he and the Applicant discussed the loss or theft of certain documentation that would have corroborated certain elements of his claim and where it was noted that a report to the police had been made in respect of the loss or theft and that a copy of the report to the police could reasonably be obtained. The presiding member of the RPD did not intervene. In particular, she did not ask that a copy be obtained and provided to her and she did not undertake to withhold issuing her decision to allow a copy of the report to be obtained and submitted for consideration. She was not asked to provide time to obtain and submit a copy. Indeed, she indicated to counsel and to the Applicant that she would issue her decision "...as quickly as I can."^[8]

[23]            The Applicant proceeded to obtain a copy of the police report in question, without delay. The hearing took place before the RPD on the 29^th of December, 2003. The reasons and decision of the RPD issued the 31^st of December, 2003. In the result, the copy of the police report obtained by the Applicant did not reach the RPD before the decision issued.

[24]            Counsel for the Applicant urged that the foregoing circumstances gave rise to a breach of the duty of fairness owed by the RPD to the Applicant. I disagree. Based upon the foregoing, the RPD owed no duty to the Applicant to await receipt of a copy of the police report. Further, I am not prepared to draw any negative inference from the remarkably short period of time required by the RPD to produce the decision and reasons here before the Court, notwithstanding their complexity and length.

CONCLUSION

[25]            For the foregoing reasons, this application for judicial review will be dismissed.

[26]            Copies of these reasons will be distributed to counsel. Counsel for the Applicant will have seven (7) days from the date of distribution of the reasons to serve and file any question or questions that he wishes to propose for certification. Thereafter, counsel for the Respondent will have seven (7) days to serve and file any response and, in the event of a response, counsel for the Applicant will have a further three (3) days to serve and file any reply. Only thereafter will an order concluding this matter, responding to any submissions on certification of a question, issue.

_________________________________

          J.F.C.

Ottawa, Ontario

November 23, 2004

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET:                                             IMM-356-04

STYLE OF CAUSE:                           JANOS ERDOS

                                                   and

MINISTER OF CITIZENSHIP AND IMMIGRATION

         

DATE OF HEARING:                         NOVEMBER 17, 2004

PLACE OF HEARING:                       Winnipeg, Manitoba.

REASONS FOR JUDGMENT BY:     The Honourable Mr. Justice Gibson

DATED:                                                  NOVEMBER 23, 2004

APPEARANCES BY:                         Mr. David Mattas

For the Applicant

Ms. Nalini Reddy

For the Respondent

                                                                                                           

SOLICITORS OF RECORD:          

David Mattas

Barrister and Solicitor                                                 

Winnipeg, Manitoba, R3C 1T7

(204)944-1831                         For the Applicant

                                                                                                                                                           

Ms. Nalini Reddy

Department of Justice

Morris Rosenberg

Deputy Attorney General of Canada

Winnipeg, Manitoba, R3C )S6

(204)983-3860

                        For the Respondent