Adar and Chill v. Canada (Minister of Citizenship and Immigration), (1997) 132 F.T.R. 35 (TD)

• Judge: Cullen, J.
• Court: Federal Court (Canada)
• Case Date: May 21, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 132 F.T.R. 35 (TD)

Adar v. Can. (M.C.I.) (1997), 132 F.T.R. 35 (TD)

MLB headnote and full text

Temp. Cite: [1997] F.T.R. TBEd. JN.048

In The Matter Of The Immigration Act, R.S.C. 1985, c. I-2 as amended, S.C. 1988, c. 25; as amended.

Mohamoud Omar Adar and Saada Aden Chill (applicants) v. Minister of Citizenship and Immigration (respondent)

(IMM-3623-96)

Indexed As: Adar and Chill v. Canada (Minister of Citizenship and Immigration)

Federal Court of Canada

Trial Division

Cullen, J.

May 26, 1997.

Summary:

The Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board allowed the Minister's application to vacate the applicants' Convention refugee status on the ground that their status was obtained fraudulently by the concealment of a material fact. The applicants applied for judicial review of the CRDD's decision.

The Federal Court of Canada, Trial Division, dismissed the application.

Administrative Law - Topic 24

Abuse of process - What constitutes - [See second Aliens - Topic 1328.1 ].

Administrative Law - Topic 25

Abuse of process - Multiplicity of proceedings - [See second Aliens - Topic 1328.1 ].

Aliens - Topic 1328.1

Admission - Refugees - Revocation of determination - The Convention Refugee Determination Division (CRDD) allowed the Minister's application to vacate the applicants' Convention refugee status on the ground that the applicants had concealed a material fact - The applicants argued that the CRDD erred by proceeding with the application because it was res judicata where the CRDD had refused a previous application by the Minister for leave to apply to vacate the applicants' refugee status - The Federal Court of Canada, Trial Division, rejected the argument - The denial of leave was not a final decision because the Immigration Act gave the CRDD the power of reconsideration - Further, the initial application for leave was denied and therefore the CRDD did not have the opportunity to reconsider the applicants' status - Also, the applicants were not parties to an application for leave to vacate Convention refugee status - See paragraphs 7 to 11.

Aliens - Topic 1328.1

Admission - Refugees - Revocation of determination - The Convention Refugee Determination Division (CRDD) allowed the Minister's application to vacate the applicants' Convention refugee status on the ground that the applicants had concealed a material fact - The CRDD had refused a previous application by the Minister for leave to apply to vacate the applicants' refugee status - The Federal Court of Canada, Trial Division, in considering an application for judicial review, held that the Minister's second application was not an abuse of process - The court's process was not being abused and the court could not adjudicate on the abuse of the CRDD's process - The CRDD controlled vacation applications by virtue of the leave requirement and that would presumably abort any abusive process - See paragraph 12.

Aliens - Topic 1328.1

Admission - Refugees - Revocation of determination - The applicants made Convention refugee claims based on Somalian identification papers - The Minister subsequently applied for leave to vacate the applicants' Convention refugee status after it seized two Djiboutian passports with the applicants' photographs on them - The Convention Refugee Determination Division (CRDD) found that the applicants concealed material facts and allowed the application to vacate their refugee status - The applicants argued that the CRDD made an erroneous finding of fact when it found that the applicants were Djiboutian citizens and that on the evidence before it the CRDD should have found them to be Somalian citizens - The Federal Court of Canada, Trial Division, held that the CRDD's decision was properly founded on the evidence and there was no reason to interfere with its preference of the Djiboutian passports over the alleged Somalian identity documents - See paragraphs 13 to 22.

Aliens - Topic 1328.1

Admission - Refugees - Revocation of determination - The applicants made Convention refugee claims based on Somalian identification papers - The Minister subsequently applied for leave to vacate the applicants' Convention refugee status after it seized two Djiboutian passports with the applicants' photographs on them - The Convention Refugee Determination Division (CRDD) found that the applicants concealed material facts and allowed the application to vacate their refugee status - The applicants argued that as the transcripts of their initial refugee determination hearing were not before the CRDD panel which vacated their refugee status, fundamental evidence was missing because the initial CRDD panel may have considered and rejected the possibility that the applicants were citizens of Djibouti - The Federal Court of Canada, Trial Division, held that the original transcripts would not have added anything to the proceedings before the CRDD - See paragraphs 23 and 24.

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - [See first Aliens - Topic 1328.1 ].

Cases Noticed:

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 8].

Minister of Employment and Immigration v. Chung, [1993] 2 F.C. 42; 149 N.R. 386 (F.C.A.), refd to. [para. 8].

Varin v. Cormier, [1937] 3 D.L.R. 588 (Que. S.C.), refd to. [para. 14].

Radic v. Canada (Minister of Citizenship and Immigration) (1994), 85 F.T.R. 65 (T.D.), refd to. [para. 14].

Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741; 87 F.T.R. 46 (T.D.), refd to. [para. 15].

De Connick et al. v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 207 (T.D.), refd to. [para. 15].

Chen v. Canada (Minister of Citizenship and Immigration) (1995), 102 F.T.R. 203 (T.D.), refd to. [para. 15].

Counsel:

Emilio Binavince, for the applicants;

R. Jeff Anderson, for the respondent.

Solicitors of Record:

Binavince Merner Burton Massie, Ottawa, Ontario, for the applicants;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on May 21, 1997, at Ottawa, Ontario, by Cullen, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on May 26, 1997.