Digests

Logeswaren v. Canada (Minister of Citizenship and Immigration)

IMM-3775-03

2004 FC 866, Phelan J.

22/6/04

9 pp.

Judicial review of interlocutory decision of Immigration and Refugee Board (Board) dismissing motion to dismiss Minister of Citizenship and Immigration's (Minister) application to vacate applicants' Convention refugee status--Applicants granted refugee status on May 6, 1993--In 1994, as result of anonymous tip, Minister alleged adult applicant's fingerprints matched those of "SK", person who had unsuccessfully claimed refugee status in 1987--1999 application to vacate applicant's refugee status dismissed for insufficiency of evidence as to similarity of fingerprints--In early 2001, Minister filed for leave to file second application to vacate under Refugee Protection Division Rules (Rules), r. 55 on basis of new evidence (photograph) received from Swiss government--In May 2001, member of Board advised applicants of second application to vacate--Applicants' motion to dismiss application to vacate on basis of res judicata dismissed--Board found neither abuse of process nor negligence by Minister--Board found issue of estoppel did not arise--Whether judicial review of interlocutory decision available to applicants--Where decision critical to scope of final decision and of sufficient significance, judicial review available, even though generally interlocutory decisions not subject to judicial review--Interlocutory decision herein defining scope of ultimate decision and of sufficient significance as to warrant judicial review--Immigration and Refugee Protection Act, s. 109 permitting overturning of refugee status secured by misrepresentation--R. 55(1) permitting Minister or claimant to apply to Division to reopen decided or abandoned refugee protection claim--R. 56(1) permitting Minister or protected person to apply to Division to reopen application to vacate refugee protection-- Establishes regime for subsequent attempts to vacate refugee protection--S. 109 discretion parallels that exercised in application of res judicata--In exercise of discretion, Division must have regard to such principles as cause of action estoppel, issue estoppel--Here, cause of action estoppel applicable as same adjudicative body, same parties, same issue involved--Evidentiary base different--Scope of discretion in case of cause of action estoppel may be narrower than in case of issue estoppel--Common law discretion must take secondary role to power given to Division by statute--Given legislative scheme, to extent res judicata in form of cause of action estoppel applies, discretion accorded by Parliament specifically vests Division with jurisdiction to consider application to vacate (or to reopen)--Board exercised discretion properly, took into account relevant factors, reached reasonable decision--However, Board did not consider whether Minister applied under proper rule--R. 55 applies to first attempt to vacate--Minister had no right to bring second application to vary under r. 55--Appropriate remedy found in r. 56 which gives Minister specific right to apply to reopen first application to vary even though had been decided-- Application granted in part and matter remitted to Board for determination with leave to respondent to amend application to invoke r. 56--Refugee Protection Division Rules, SOR/2002-228, rr. 55, 56--Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 109.