Logeswaren v. Canada (Minister of Citizenship and Immigration), 2005 FC 419

[7]         Section 161(1) of the IRPA provides that the Chairperson may make rules respecting the "activities, practice and procedure" of the Board. The Rules do not and cannot create substantive rights; that is the task of Parliament. Nevertheless, they are important and should be followed. The Rules set out procedures in respect of a number of the tasks of the Board.

[8]         The first Rule to examine is Rule 56, which is contained in a part of the Rules dealing, generally, with "Reopening a Claim or Application". Under Rule 56, which the Applicants argue is applicable:

[11]       The Applicants cite the comments of Justice Phelan in a decision dealing with an interlocutory matter in this file as support for their position that application must be made under Rule 56. In Logeswaren v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 1086 (referred to as "Logeswaren 1"), the Court was dealing with a judicial review of a interlocutory decision of the Board that rejected the Applicants' motion to dismiss the Application on the basis of res judicata. Initially, the Court allowed the judicial review in part. In doing so, Justice Phelan stated that the Board did not consider whether the Minister had applied under the proper rule and that "the appropriate remedy is to be found in Rule 56 . . .".

[12]       These comments of Justice Phelan must be put into the context of what followed. At the time of his initial decision, the Court was not aware that the Board had proceeded with the hearing and had already reached a decision on the merits. Further, counsel had not argued the applicability of Rule 56 to the Application. As a result, an application for reconsideration of the decision of Justice Phelan was brought by the Minister. The Minister was successful in that motion and the judicial review of the interlocutory decision was dismissed (Logeswaren v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 1659 (referred to as "Logeswaren 2")). In the course of his decision, at para. 10, Justice Phelan made specific reference to the applicability of Rule 56 as follows:

The Court proceeded on a misunderstanding of the basis for the Minister's motion to vacate refugee status. The Minister had authority under section 190 of the previous legislation (the Immigration Act). Leave to proceed with the vacation motion was granted July 5, 2001. Therefore the requirement that the Board reconsider the matter under Rule 56 is irrelevant.

[16]      The Applicants note the unsuccessful application in 1999 brought by the Minister. They argue that, since the legislation does not specifically permit more than one application to vacate, the Minister may not bring more than one such application. Otherwise, the Applicants argue, they would not be protected "against the common law principles of res judicata". This is just not sensible. In the event that the Minister was to bring a second application for vacating, it is evident that the defence of res judicata is available to a respondent if it can be proven. The existence of a right to bring further applications does not preclude this common law principle from operating in appropriate circumstances. As noted by the Board in its interlocutory decision it was not applicable in this case. The IRPA does not prevent more than one application to vacate by the Minister; it would be inappropriate for me to read one into the IRPA. Parliament could have limited the availability of a second "kick at the cat" just as it did with the right of a refugee to make a second claim (IRPA, s. 101). Parliament did not limit the ability of the Minister to bring a further application.

[17]       Finally, I note that the Rules themselves contemplate a challenge of validity. Rule 70 provides that:

[18]     In this case, the Applicants did not argue the issue of Rule 56 before the Board. In fact, the issue appears to have first surfaced as a result of Justice Phelan's first decision. Pursuant to Rule 70, unless the Board is presented with an argument on the invalidity of the proceeding before it and rules on that, the proceeding cannot be declared invalid. Thus, even if I were to accept the arguments of the Applicants in this case, Rule 70 would protect the decision of the Board.

[19]     The Applicants also argue that section 7 of the Charter of Rights and Freedoms operates in this case to prevent the removal of the Applicants. However, the Court of Appeal has recently determined that section 7 Charter rights are not engaged in vacation proceedings (Coomaraswamy v. Canada (Minister of Citizenship and Immigration) 2002 FCA 153, at para. 24.

[20]     For these reasons, I am satisfied that the Minister proceeded correctly under s. 109 of the IRPA and Rule 57 and that the Board was properly able to hear the matter.

Issue #2: Did the Board err in admitting evidence that properly belonged to the subject of the first application of the Minister to vacate the refugee status of the Applicants?

[21]     On May 26, 2003, in an interlocutory decision on a motion presented by the Applicants at the second hearing to vacate, the RPD ruled that the issue of the fingerprints was res judicata and that no further evidence regarding the fingerprints was to be allowed. This decision was the subject of a judicial review by the Court that was ultimately dismissed (Logeswaren 1; Logeswaren 2).

[22]      In the vacation hearing, the Board did consider other evidence, including photographs taken in 1987 in Switzerland and photographs taken in 1994 in Toronto. Further, the Board considered the evidence of the procès-verbal made by French police investigator, Denis Marin. The Applicants submit that this photographic evidence was available at the first hearing and should not have been held "in reserve" for the second proceeding.

[23]     This argument of the Applicants on this point is a thinly-veiled attack on the Board's interlocutory decision dealing with the issue of res judicata. In that decision, the Board dealt with the additional evidence from the Swiss authorities. In its interlocutory decision, the Board stated that:

I do not agree with the allegation of counsel for the Respondents [the Applicants in this proceeding] that the Minister's failure to present all the evidence of the hearing in 1999 indicates bad faith on his part. I find the Minister's explanation concerning the reluctance of the Swiss authorities to provide documentary evidence is credible and shows that the Minister was neither negligent nor in bad faith.

[24]       Thus, while there was no explicit ruling in the interlocutory decision that the further evidence would be admitted, there is a conclusion that this is not evidence that was reasonably available to the Board in the first hearing. Accordingly, as a result of the Applicants unsuccessful application for judicial review of the interim decision, I view the Applicants' submission on this point as a collateral attack that should not succeed.

[25]       In any event, I am satisfied that the Board did not conduct the second hearing on the same evidence that was before the Board in the first hearing. The Applicants cite Vasquez v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 1340, at paras. 11 and 12, in support of their position that the Board cannot rely on the same evidence. That case is authority for the proposition that an applicant is barred from making a second claim for refugee status on the same evidence. They also rely on Singh v. Canada [1996] F.C.J. No. 1572, at paras. 8-17, and aff'd [1998] F.C.J. No. 1624 (FCA), where the Court found that "no litigant can be permitted to litigate issues by instalment (Singh, para. 8) ... except under special circumstances ... to every point which properly belonged to the subject of litigation and which the parties ... might have brought forward at the time" (Singh, para. 9).

[26]     In my view neither of these cases is helpful to the Applicants. That is because it is clear that the Board relied on different evidence for the second hearing and that there is a reasonable explanation by the Minister for not bringing the evidence forward at the first hearing.

[27]     With respect to other exhibits admitted into the hearing that were also part of the record of the first hearing, I accept the Board's assessment that the documents admitted (the Applicants' applications to become permanent residents, the passport and expertise done on the passport), would not have shed additional light because the Minister, at that time, was not in possession of the Swiss documents. It was only once that evidence was available that the original documents became relevant.

[28]     I am satisfied that the Board did not improperly admit or rely on any documents.

Issue #3: Did the Board err in finding that the principal applicant and SK are one and the same person?

[29]       In its decision, the Board concluded that the Applicants were not in Sri Lanka during the greater part of the persecution they alleged to have suffered. Key to its conclusion was its finding that the principal applicant was the same person as SK who was in Switzerland at that time. The Applicants raise the following concerns with the conclusion of the Board:

_     No conclusive evidence such as finger prints or DNA findings have been submitted to establish that the principal applicant and SK are one and the same person.

_     The evidence of Mr. Charbonneau, a counterfeit expert, was accepted without an assessment of his credentials.

_     There was no notice to the Applicants by the Board that they intended to use its specialized knowledge in this manner - a contravention of Rule 18 (RPD Rules) (Lawal v. Canada (Minister of Employment and Immigration) (1991) 78 D.L.R. (4^th) 522).

_     The Board called the principal Applicant as a witness in the hearing.

[30]       The first of these alleged errors is an attack of the Board's assessment of the evidence. There is no reviewable error. While it is true that finger prints or DNA findings would have been incontrovertible evidence, the absence of this type of evidence does not automatically result in an error. The Board is entitled to rely on the evidence before it. Provided its conclusion is not patently unreasonable, it should stand. In this case, there was significant evidence before the Board upon which the Board could conclude that the woman in Switzerland and the principal Applicant were one and the same. There is no error.

[31]     In respect of the second alleged error, the Applicants argue that the Minister should have called Mr. Charbonneau, the counterfeit expert whose report was relied on by the Board, to testify.

I do not agree that the Minister was obligated to present viva voce evidence for an expert's report. It is a fundamental tenet of administrative law, as referred to in the IRPA, that the Board is "not bound by any legal or technical rules of evidence" and it may "receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances" (IRPA, s. 170 (g)(h). As stated in Fajardo v. Canada (Minister of Employment and Immigration) [1993] F.C.J. No. 915 (F.C.A.), at para. 4, "It is not for the Refugee Division to impose on itself or claimants evidentiary fetters of which Parliament has freed them."

[37]       The Minister proposed a certified question on the applicability of Rule 56 only if the application was successful. The Applicants did not propose any question for certification. None will be certified.

ORDER

This Court orders that:

1.       The application is dismissed; and

2.       No question of general importance is certified.

           "Judith A. Snider"   

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Judge