Digests

Chowdhury v. Canada (Minister of Citizenship and Immigration)

IMM-4195-02

2003 FC 1050, Martineau J.

9/9/03

20 pp.

Judicial review of Immigration and Refugee Board, Refugee Division (Board) decision, applicant not Convention refugee--Applicant submits Board erred in law and exceeded jurisdiction in determining applicant excluded despite prior finding by Adjudicator applicant not described as person inadmissible to Canada in relation to same facts and same parties and essentially same allegation--Applicant submits issue could not be relitigated and Board erred in law in determining Adjudicator's decision not "final"--First, as matter of law, distinction between "cause of action estoppel" and "issue estoppel"--Main distinction resides in respective meanings of "question" and "cause of action": first being broader than second--In case at bar, "issue estoppel" really describes motion made by applicant--However, not clear in reading Board's interlocutory decision whether it understood fundamental distinction--Moreover, in case at bar, Board focussed solely on second criteria (finality of Adjudicator's decision) and failed to specifically address first and third criteria (same question and same parties)--In case at bar, three pre-conditions for raising issue estoppel exist--Here, Board based its finding decision of Adjudicator not final on purported effects of former Immigration Act, s. 34--While s. 34 does not prevent holding of further inquiry, this can only occur "by reason of making of another report under s. 20(1)(a) or s. 27(1) or (2) or by reason of arrest and detention for inquiry pursuant to s. 103"--Assuming s. 34 displaces principle of res judicata, it can only be with respect to actions specifically mentioned in this provision--In this case, no further reports under s. 20(1)(a) or s. 27(1) or (2) were made--In addition, no proof applicant arrested or detained for inquiry pursuant to s. 103--Accordingly, Board erred in law in finding Adjudicator's decision not final--Second, as matter of discretion, tribunal may refuse to apply estoppel--No doubt Board and Adjudicator both have discretion to refuse to apply estoppel, and that this is "broad" discretion--In case at bar, since Board concluded res judicata or issue of estoppel did not apply, Board did not address question of discretion--Considering this Court sits on judicial review of decision of Board, Court's jurisdiction is to determine whether Board's decision correct--Therefore, Court's available remedy is to order redetermination of case by Board--Court refrained from exercising discretion vested in Board--Judicial review allowed--Immigration Act, R.S.C., 1985, c. I-2, ss. 20(1)(a), 27 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 47, s. 78; c. 49, s. 16, 123), 34, 103 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 27; S.C. 1992, c. 49, s. 94; 1995, c. 15, s. 19).