Date: 20041019
Docket: IMM-544-04
Citation: 2004 FC 1440
Ottawa, Ontario, October 19, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
AHMAT MAHAMAT AL-BACHIR
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the panel), dated December 5, 2003, under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). In that decision, the panel determined that the applicant did not qualify as a "Convention refugee" under section 96 or as a "person in need of protection" under section 97.
ISSUES
[2] The issues are as follows:
1. Did the panel incorrectly apply the doctrine of "res judicata"?
2. Did the panel err in refusing to admit new evidence on the basis that it had not been disclosed within the time limit provided by the Rules?
3. Was it patently unreasonable to determine that the applicant lacked credibility?
[3] For the following reasons, I answer the three questions in the negative and I would dismiss this application for judicial review.
FACTUAL BACKGROUND
[4] The applicant is a native of Chad alleging that he has a well-founded fear of persecution in his country based on his association with the Movement for Democracy and Justice in Chad (MDJC).
[5] The applicant filed a refugee claim for the first time in 1999. That claim was denied on July 26, 2000, for lack of credibility. On his counsel's recommendation, he left the country for the United States and came back to Canada on August 10, 2001.
[6] He made a new claim in August 2001 alleging that he had new evidence which had not been available when his first claim was filed and which would establish the truthfulness of his claim.
IMPUGNED DECISION
[7] First, the panel determined that it would only hear the applicant's new evidence, i.e. the evidence that he did not have at the first hearing, and determined that the principle of res judicata applied, as defined in Vasquez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1769 (F.C.T.D.)(QL).
[8] Then, the member did not allow the applicant to file the documents supporting his new evidence on the basis that he was late, attempting to file them the very morning of the hearing, i.e. on December 5, 2003, and also because in January 2002 he had declared that he had them in his possession.
[9] Finally, the panel made negative findings about the applicant's credibility.
ANALYSIS
Did the panel incorrectly apply the doctrine of "res judicata"?
[10] The conditions underlying this doctrine were developed by the Supreme Court of Canada in [1975] 2 S.C.R. 248">Angle v. Canada (Minister of National Revenue - M.N.R.), [1975] 2 S.C.R. 248, and were applied again by the Federal Court of Appeal in Canada (Minister of Employment and Immigration) v. Chung, [1993] 2 F.C. 42.
[11] These include:
1. the same issue has already been decided;
2. the judicial decision was final;
3. the parties to the judicial decision or their privies were the same persons.
[12] The applicant argued that the first condition has not been met. On this point, he alleged that the issue of whether the applicant is a "person in need of protection" within the meaning of section 97 could not have been decided previously given that that section did not exist under the former Act when the applicant filed his first claim in 1999.
[13] However, the panel never refused to review the issue under section 97. It did indicate that the decision would bear only on the new evidence. At page 2 of its decision, the panel clearly states that it considered the applicant's claim under sections 96 and 97 of the Act. It states:
I find that the claimant is not a Convention Refugee, nor a person in need of protection for the following reasons.
Refusing to reassess the evidence filed at the first hearing was not a refusal to hear the applicant on the issue of section 97. In this case I adopt the reasoning of my colleague Layden-Stevenson J. in Brovina v. Canada (Minister of Citizenship and Immigration), 2004 FC 635, [2004] F.C.J. No. 771 (F.C.T.D.)(QL), paragraph 18.
Did the panel err in refusing to admit new evidence on the basis that it had not been disclosed within the time limit provided by the Rules?
[14] The admissibility of documents filed late is left to the discretion of the panel. This discretion is based, inter alia, on the assessment of the evidence. It must therefore be determined whether, after assessing all of the relevant factors, the panel made an erroneous finding. Given that it is a mixed question of fact and law, in my opinion the applicable standard of review for this question is that of reasonableness simpliciter. In Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, the Supreme Court of Canada elaborated on the application of this standard. It stated that the reviewing court is not supposed to determine what the correct decision should have been, but it must review the panel's reasons to ascertain whether the line of analysis used could reasonably lead to the conclusion at which it arrived.
[15] The Refugee Protection Division Rules provide that to be accepted at the hearing, a document must be filed 20 days before and provided to the other party (rule 29(1) and (4)). If that is not done, one of the parties can ask the panel to allow its use. In deciding whether to allow it, the panel assesses: (a) the document's relevance and probative value; (b) any new evidence it brings to the hearing; (c) whether the party, with reasonable effort, could have provided the document as required by rule 29 (rule 30).
[16] In this case, the applicant alleged that the panel did not consider the applicant's explanations regarding the late filing. After reviewing the transcripts, I consider that the applicant had ample opportunity to give all the details regarding his late filing and the member devoted more than one page of her decision to explaining the reasons for her refusal to admit that evidence. The panel's line of analysis is consistent with the case law. Accordingly, the findings are not patently unreasonable.
[17] Although the panel refused to admit that new evidence, it remarked on it just the same. According to the applicant, these were documents proving that he was a member of the MDJC. Some of these documents are even dated in the year 2000. The applicant attacked his former counsel for not filing them in time. That argument was not accepted by the member and the Court considers that there is no reviewable error here.
Was it patently unreasonable to determine that the applicant lacked credibility?
[18] The issue of credibility is a question of fact to which the applicable standard of review is that of the patently unreasonable decision (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 at pages 316 and 317 (F.C.A.).
[19] The applicant has not persuaded me that the Court's intervention is necessary.
[20] The parties declined to submit serious questions of general importance. No question will be certified.
ORDER
THE COURT ORDERS that the application for judicial review is dismissed. No question is certified.
"Michel Beaudry"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-544-04
STYLE OF CAUSE: AHMAT MAHAMAT AL-BACHIR
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 29, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE BEAUDRY
DATE OF REASONS: October 19, 2004
APPEARANCES:
Johanne Doyon FOR THE APPLICANT
Sylviane Roy FOR THE RESPONDENT
SOLICITORS OF RECORD:
DOYON, MORIN
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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