Digests

Canada (Minister of Citizenship and Immigration) v. Nyame

IMM-323-00

2001 FCT 67, O'Keefe J.

14/2/01

26 pp.

Judicial review of Immigration and Refugee Board, Appeal Division's (IAD) decision allowing respondent's appeal pursuant to Immigration Act, s. 70(2), quashing exclusion order, directing respondent be examined as person seeking admission at port of entry--Respondent citizen of Ghana--Mother sponsoring his application for permanent residence, using false identity documents--Exclusion order issuing against respondent in August 1995--On appeal, IAD finding exclusion order valid, but quashing order on humanitarian, compassionate considerations, ordering respondent be examined as person seeking admission at port of entry--When respondent again presenting himself at port of entry in April 1997, Adjudicator determining not in possession of valid travel document issued by Ghana, or immigrant visa for Canada, issuing second exclusion order--On appeal of second exclusion order IAD allowing appeal on basis of res judicata--Application allowed--(1) Grewal v. Minister of Employment and Immigration, [1981] 1 F.C. 12 (C.A.) applied--Adjudicator must make determination on facts existing when decision made--Res judicata not applicable as second exclusion order based on facts found on August 26, 1997, which Adjudicator believed to be somewhat different from earlier facts--Board's role to hold hearing with respect to new exclusion order--IAD erred in applying res judicata to allow appeal--(2) Since second order forming basis for second, new appeal, IAD must entertain representations with respect to humanitarian, compassionate grounds of appeal contained in s. 70(3)--IAD erred in finding doctrine of res judicata applied to prevent it from hearing s. 70(3) humanitarian, compassionate ground--Even though some circumstances changed, i.e. respondent not living with mother, humanitarian, compassionate ground relied on in original IAD decision may still be valid and would still justify humanitarian, compassionate ground being basis to quash any new exclusion order--But such matter to be decided on appeal of second exclusion order--Issuance of new exclusion order in face of finding, based on compassionate, humanitarian grounds, that respondent should not be removed from Canada could, will amount to abuse of process of Board--IAD's decision set aside; matter to be reheard by different panel of IAD--Immigration Act, R.S.C., 1985, c. I-2, s. 70(2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1995, c. 15, s. 13).