Date: 20030423
Docket: IMM-3334-02
Ottawa, Ontario, the 23rd day of April 2003
Present: The Honourable Mr. Justice Rouleau
Between:
YVROSE P. CASSEUS
LINDSAY MARION CASSEUS
Applicants
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
[1] The application for judicial review is dismissed.
"P. Rouleau"
Judge
Certified true translation
Suzanne Gauthier, C. Tr., LL.L.
Date: 20030423
Docket: IMM-3334-02
Citation: 2003 FCT 472
Between:
YVROSE P. CASSEUS
LINDSAY MARION CASSEUS
Applicants
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Refugee Division") dated June 13, 2002, according to which the applicants were not Convention refugees and there was no credible basis for their claim under subsection 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2 as amended ("the Act").
[2] The applicants are asking the Court to overturn the decision issued against them and to order that this matter be returned for judgment before a reconstituted panel.
[3] The applicant and her minor daughter ("the applicants") are citizens of Haiti. They allege that they have a well-founded fear of persecution in their country of citizenship because of perceived political opinions and their membership in a particular social group, the family.
[4] The applicants left Haiti on August 14, 1996, and a few days later entered Canada, where they claimed refugee status for the first time on August 26, 1996. In support of their claim, they alleged that they had been victims of threats and harassment in Haiti.
[5] The applicants' case was heard on September 2, 1999. A negative decision was handed down on September 29, 1999, on the ground that their claims were unrelated to any of the five grounds in the Convention. This decision was upheld by this Court on February 14, 2000, when an application for leave to introduce an application for judicial review of this decision was dismissed.
[6] Following the dismissal of this initial claim, the applicants were forced to leave Canada for the United States on June 30, 2000, where they stayed until June 26, 2001, without claiming refugee status there.
[7] On June 29, 2001, the applicants again reported at Lacolle, on the Canadian border, and claimed refugee status for a second time, submitting a story that was substantially identical to the one in their first claim.
[8] A hearing was held on May 16, 2002. The principal applicant testified that she had not returned to Haiti after June 30, 2000, that she had received no news from her half-brother in Haiti since 1998, that she had had no contact with the Haitian authorities since September 1999 and that no member of her family had had any problems in Haiti with the authorities of that country.
[9] Finally, to justify their failure to request asylum from the U.S. authorities, the applicants explained that they preferred to live in Canada because they have family here, they speak French and it is easier for the studies of the daughter of the principal applicant.
[10] By a decision dated June 13, 2002, the applicants were notified that their claim for refugee status was denied. The Refugee Division rejected the applicants' claim for refuge because (1) they had produced nothing that could shed any new light in support of their second claim in Canada, and (2) their conduct was incompatible with a well-founded fear of persecution when they had lived one year in the United States without claiming refugee status there.
[11] Moreover, because of these significant failings, the Refugee Division held there was no credible basis for their claim under subsection 69.1(9.1) of the Act.
[12] On January 17, 2003, the applicants filed a motion for a stay of execution of the deportation order issued against them, to be heard as a matter of urgency. That same day, their application for leave to introduce an application for judicial review of the decision of the Refugee Division dated June 13, 2002, was allowed. By a letter dated January 23, 2003, the applicants were also informed that an administrative stay of the removal had been granted pending a decision by this Court on the present application for judicial review.
[13] The only issue raised on this judicial review is whether the Refugee Division erred in finding that the applicants' second claim raised nothing new and that the applicants had produced no evidence of new facts that might influence the determination of their claim.
[14] The applicants submit that the Refugee Division could not conclude that they were not Convention refugees and that their claim had no credible basis. They submit that although this was a second claim for refugee status, the Refugee Division should have considered some new documentation submitted in support of their claim. This documentation constituted things that were new to this second claim.
[15] The applicants also submit, in regard to their stay of almost one year in the United States, that it was their lawyer who had advised them to go to that country in order to prepare their second refugee claim in Canada.
[16] The applicants further submit that the Refugee Division should have assessed the subjective and objective fears of persecution of the applicants, even though this was a second claim.
[17] The respondent, on the other hand, submits that the decision by the Refugee Division dated September 29, 1999, is res judicata, and that any evidence that could have been filed at the hearing of September 2, 1999, could not validly be considered by the Refugee Division during the second hearing of May 16, 2002.
[18] Citing Vasquez v. Canada (Minister of Citizenship and Immigration) (1998), 160 F.T.R. 142 (F.C.T.D.), which was also cited by the Refugee Division, the respondent submits that the applicants have provided no explanation as to why, at the hearing of the first claim, they did not table the documents they elected to file during the hearing of the second claim. Thus, he contends, the Refugee Division had every reason to conclude as it did.
[19] Lastly, in regard to the Refugee Division's finding that the applicants' conduct was incompatible with that of a person having a subjective fear of persecution in his country, the respondent submits that the Division was entitled to consider such a factor in its determination of the applicants' claim and even to draw a negative inference from it.
[20] After a careful review of the evidence as a whole, the certified record of the panel and the submissions of the parties, I am of the opinion that the Refugee Division did not commit any error that would attract the intervention of this Court. I would dismiss this application for judicial review, therefore, for the following reasons.
[21] The Refugee Division held in this case that since it was not a review tribunal it could not consider the documents filed by the applicants, relevant exhibits that were available but were not submitted during the hearing of the first claim.
[22] The Vasquez decision, supra, is applicable in this case since the applicants are on their second refugee claim in Canada, their first claim having been denied by the Refugee Division in 1999. In that case, Mr. Justice Rothstein (then a trial division judge) held that the principle of res judicata applied when the applicant was presenting a second refugee claim after his first claim had been rejected. He also held that the applicant could not raise, at the second hearing, arguments that he could have raised at the first hearing. Rothstein J. stated:
[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.
[23] I fully subscribe to the principles set down by Rothstein J. in Vasquez. These principles are based on the case law of the Supreme Court of Canada that he cited.
[24] In the case at bar, the only issue in dispute is whether the documents filed by the applicants on their second refugee claim were evidence subsequent to the date of dismissal of their initial claim, September 29, 1999.
[25] The evidence discloses that the documents in question consist of (1) a more detailed version of the story related in reply to question 37 of the applicants' Personal Information Form; (2) a letter from the company Électricité d'Haïti dated June 10, 1991, apologizing to the deceased husband of the principal applicant for an incident that had apparently occurred at his office in March 1991; (3) the death certificate of the deceased husband of the principal applicant dated November 26, 1996; (4) an announcement of the death of the deceased husband of the principal applicant in the newspaper "Le Nouvelliste" dated July 8, 1996; and (5) extracts from the registry minutes of the Tribunal de paix of the southern division of Port-au-Prince dated July 2, 1996, and recording the death of the principal applicant's husband at the morgue.
[26] It should be noted that all of these documents attest to facts that occurred even before the first hearing of the applicants' claim on September 2, 1999, i.e. between 1991 and August 1996; these facts were therefore known at the time of this first claim. Although they are "new" documents in the sense that they were not filed at the first hearing, they are not evidence of new facts subsequent to the date of dismissal of their initial claim, September 29, 1999.
[27] From my reading of the reasons of the Refugee Division in support of its decision to dismiss the applicants' initial refugee claim, I observe as well that the panel noted that notwithstanding a fair number of documents filed concerning the work of the principal applicant's deceased husband, the letter of apology for the incident of March 1991 had not been filed (Panel Record, at p. 59). Furthermore, the Refugee Division noted that although the principal applicant had filed a number of documents in relation to her husband, neither the morgue report nor the death certificate of the husband had been filed (Panel Record, at p. 61).
[28] It is clear to me that what the applicants are trying to do in this case is to produce these documents in order to explain some facts that were not sufficiently detailed on the first hearing and to correct the deficiencies in the evidence that they had submitted to the Refugee Division at that time. In his decision of September 24, 1998, in the Vasquez case, supra ((1998), 160 F.T.R. 142 (F.C.T.D.)), Rothstein J. stated that a claimant cannot use evidence that was available at the time of his initial refugee claim as the basis for a second claim:
[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] I 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). The question then is whether the credible basis panel on April 23, 1992, was the Refugee Division for purposes of paragraph 46.01(1)(c) and if not, whether, in any event, the principle of res judicata bars the raising of evidence of facts known at that time. [Emphasis added]
[29] Since there were no new facts raised by the applicants that could not have been cited during the hearing of their first refugee claim, the Refugee Division in my opinion rightly concluded that the second claim by the applicants was res judicata.
[30] The applicants also rely on documentary evidence that existed and moreover was filed and examined at the time of their first claim, and they contend that the Refugee Division had an obligation in the current proceeding to review all of the evidence filed, old and new, in order to determine whether they had a well-founded fear of persecution should they return to Haiti.
[31] Three cases that have been decided since the Vasquez decision are in my opinion highly relevant. In Pillai v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 481 (F.C.T.D.), Mr. Justice Gibson held that if, instead of returning to the United States, the individual in question had returned to Sri Lanka and that new events had occurred, this might affect the application of the Vasquez decision, but that in this case that was not what had happened, nor is it what happened in the present case according to the facts that have been put before me. Gibson J. stated, at page 492:
... I find no basis on which to conclude that Parliament intended, on the particular facts of this matter, to confer on the applicant a de novo opportunity to claim Convention refugee status upon his third entry to Canada. Rather than bolstering his claim in a period of absence from Canada, his actions put into doubt his claim to a subjective fear of persecution if required to return to Sri Lanka.
[32] Consequently, the Refugee Division in the case at bar correctly determined that it was not a de novo hearing in the sense of a re-examination of all the evidence, but rather a re-examination of the evidence in relation to any changes that had occurred since the initial claim.
[33] In Telemichev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1511 (QL) (F.C.T.D.), Mr. Justice Lemieux stated, at paragraphs 24 and 26 of his reasons:
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.
... 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.
[34] Finally, in Kanvathipillai v. Canada (Minister of Citizenship and Immigration) (2002), 23 Imm. L.R. (3d) 304 (F.C.T.D.), Mr. Justice Pelletier (then in the trial division) noted that the Refugee Division, which had heard the applicants' first claim in this case, had found there was a lack of subjective fear of persecution and dismissed their claim. He stated, at paragraph 23 of his reasons, that a re-examination of the documentary evidence pertaining to the conditions in the country could not compensate for the absence of a subjective element in the applicants' fear.
[35] It is apparent from the transcript of the hearing of May 16, 2002, and the panel record that the applicants in this case filed no evidence of new facts in support of their second claim. Therefore I do not accept their argument and have no hesitation in concluding that the principle of res judicata is a fundamental principle of public policy and applies to the second claim by the applicants.
[36] I am also of the opinion that the Refugee Division's conclusion that the applicants' conduct following the dismissal of their first claim was incompatible with that of a person having a subjective fear of persecution in his country was entirely reasonable in the circumstances.
[37] For all these reasons, I dismiss this application for judicial review.
"P. Rouleau"
Judge
OTTAWA, Ontario
April 23, 2003
Certified true translation
Suzanne Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: IMM-3334-02
STYLE: YVROSE P. CASSEUS
LINDSAY MARION CASSEUS
PLACE OF HEARING: Montréal
DATE OF HEARING: April 8, 2003
REASONS: The Honourable Mr. Justice Rouleau
DATED: April 23, 2003
APPEARANCES:
Grégoire Bijimine FOR THE APPLICANTS
Mario Blanchard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Grégoire Bijimine FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada