[1] Rayappu and Mallimalar Joseph are citizens of Sri Lanka. On February 4, 1999, the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") determined them not to be Convention refugees. Subsequently, in November of 2001 Mr. and Mrs. Joseph were deported to the United States of America. They remained in the United States until February of 2002 when they re-entered Canada and made a second refugee claim at the border, as Mr. and Mrs. Joseph were then entitled to do. This application for judicial review arises in respect of the rejection of their second claim by the Refugee Protection Division of the Immigration and Refugee Board ("RPD").
[2] At the hearing before the RPD in respect of the second claim, Mr. and Mrs. Joseph each sought to tender into evidence a new Personal Information Form and additional documents. They also sought to give viva voce testimony under oath. Such testimony was, according to their counsel's submissions, to be confined to new evidence with respect to matters which arose after the first hearing. The counsel advised that he did not intend to "re-visit" the first claim. The new Personal Information Forms dealt with events that occurred in 2001, well after the first hearing before the CRDD.
[3] Their counsel's stated intention not to re-visit matters raised at the first hearing was in accordance with jurisprudence of this Court such as Vasquez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1769 (T.D.). This line of jurisprudence held that at a second refugee hearing a claimant could not re-litigate issues already determined against the claimant because of application of the doctrine of res judicata.
[4] At the hearing in respect of the second claim, the RPD "refused to entertain any testimony from either claimant". No weight was given to their Personal Information Forms because the RPD only allowed the forms to be entered into evidence on an unsworn basis. The RPD refused to allow Mr. and Mrs. Joseph to give evidence viva voce before it because their prior testimony had been found by the CRDD to be unreliable. Therefore, the RPD concluded that "the question of whether or not the claimants are reliable witnesses is a matter of [res judicata] before me."
[5] In so concluding the RPD erred. A prior finding that a witness' evidence was not credible or reliable does not pre-determine the credibility or reliability of the witness' later testimony upon different events by virtue of the doctrine of res judicata. Put more simply, the fact a witness was found to have given unreliable evidence in the past is not determinative of whether different testimony to be given in the future is trustworthy.
[6] The Minister concedes that it is "far too broad" to say that evidence upon new events will not be trustworthy because old evidence was not trustworthy. However, the Minister argues that the Court should conclude from the content of the new Personal Information Forms and the failure of Mr. and Mrs. Joseph to specify the evidence they intended to give to the RPD that there is "nothing new" about their claims. It follows, in the submission of the Minister, that even if the evidence of Mr. and Mrs. Joseph was improperly rejected and not heard by the RPD, the remedy of ordering a new hearing should be withheld because the outcome of such hearing is inevitable on the basis that the RPD would be bound to dismiss the application because all of the factual and legal issues raised are res judicata. Reliance is placed by the Minister upon authorities such as Yassine v. Canada (Minister of Employment and Immigration) (1994), 172 N.R. 308 (F.C.A.).
[7] Any lack of fairness in the hearing process generally voids a hearing and requires that a new hearing be held. I have not been persuaded that, to use the words quoted by the Supreme Court of Canada at paragraph 53 in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, that the demerits of the claim of Mr. and Mrs. Joseph are such that remission of their claim would be hopeless.
[8] The application for judicial review is therefore allowed.
[9] Neither counsel proposed a question for certification and no question arises on this record.
ORDER
[10] THIS COURT ORDERS THAT:
1. The application for judicial review is allowed. The decision of the Refugee Protection Division dated March 19, 2003 is hereby set aside.
2. The matter is remitted to a different panel of the Immigration and Refugee Board, Refugee Protection Division, for redetermination.
"Eleanor R. Dawson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2729-03
STYLE OF CAUSE: RAYAPPU JOSEPH
MALLIMALAR JOSEPH
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 5, 2004
REASONS FOR ORDER
AND ORDER BY : DAWSON J.
DATED: MAY 10, 2004
APPEARANCES:
Mr. Ronald Poulton FOR THE APPLICANTS
Mr. David Tyndale FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mamann & Associates
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
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