Al Yamani v. Canada (Minister of Citizenship and Immigration), (2002) 224 F.T.R. 53 (TD)

• Judge: Kelen, J.
• Court: Federal Court (Canada)
• Case Date: October 23, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2002), 224 F.T.R. 53 (TD)

Al Yamani v. Can. (M.C.I.) (2002), 224 F.T.R. 53 (TD)

MLB headnote and full text

Temp. Cite: [2002] F.T.R. TBEd. NO.019

Issam Al Yamani (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-5696-01; 2002 FCT 1162)

Indexed As: Al Yamani v. Canada (Minister of Citizenship and Immigration)

Federal Court of Canada

Trial Division

Kelen, J.

November 8, 2002.

Summary:

A Palestinian man was granted permanent resident status in 1985. As a result of a security review following a 1988 citizenship application, a 1993 Security Intelligence Review Committee (SIRC) report concluded that there were grounds to believe that as a member of the Popular Front for the Liberation of Palestine (PFLP), he was a member of an inadmissible class under ss. 19(1)(e) (acts of subversion), 19(1)(g) (acts of violence) and 27(1)(c) (subversion by permanent resident) of the Immigration Act. That SIRC report was set aside on the basis that part of s. 19(1)(g) violated the Charter's freedom of association without a final determination on inadmissibility (see 103 F.T.R. 105). A new SIRC report based on s. 19(1)(e) and that part of s. 19(1)(g) not found to be unconstitutional was also quashed, on the ground that the SIRC erred in failing to properly analyze the meaning of "subversion" in s. 19(1)(e) and did not properly analyze the evidence before concluding the man was a person under s. 19(1)(g) (see 186 F.T.R. 1). The Minister was no longer pursuing a security report, but forwarded the file to immigration enforcement officials. The Minister directed a report and inquiry alleging that the man was a person named in s. 27(1)(a) and s. 19(1)(f)(iii)(B) of the Act after the 1992 amendments (is or was a member of a terrorist organization). The man moved to stay the inquiry. The Immigration and Refugee Board, Adjudication Division, dismissed the motion. The man sought judicial review, alleging that (1) the new inquiry was res judicata because he was found not to be inadmissible on the same facts in two previous judicial decisions; (2) the new inquiry was barred by issue estoppel because the issue raised by the current allegation was the same issue dealt with in the prior proceedings; (3) the new inquiry was an abuse of process; and (4) the new inquiry under the post 1992 Act could not be applied retrospectively because the amended sections came into force after the man obtained permanent resident status and after he severed his PFLP ties.

The Federal Court of Canada, Trial Division, dismissed the application. Neither cause of action estoppel nor issue estoppel precluded the new inquiry, because, inter alia, the two previous decisions never finally decided the man's inadmissibility. That issue remained open. In any event, s. 34 of the Act precluded the application of res judicata to preclude a new inquiry under the Act following the 1993 amendments. There was no abuse of process in proceeding with the new inquiry. Finally, s. 19(1)(f)(iii)(B) did not have retrospective effect when applied to permanent residents. Reading s. 27(1)(a) and s. 19(1)(f)(iii)(B) together, the Act clearly provided that a person's right to remain in Canada as a permanent resident could be revoked for events occurring before the amended provision came into force. The court ordered that the inquiry proceed.

Administrative Law - Topic 25

General - Abuse of process - Multiplicity of proceedings - A Palestinian man was granted permanent resident status in 1985 - A 1993 Security Intelligence Review Committee (SIRC) report concluded that there were grounds to believe that as a member of the Popular Front for the Liberation of Palestine (PFLP), he was a member of an inadmissible class under ss. 19(1)(e) (acts of subversion), 19(1)(g) (acts of violence) and 27(1)(c) (subversion by permanent resident) of the Immigration Act - That SIRC report was set aside on the basis that part of s. 19(1)(g) violated the Charter's freedom of association without a final determination on inadmissibility - A new SIRC report based on s. 19(1)(e) and that part of s. 19(1)(g) not found to be unconstitutional was also quashed, on the ground that the SIRC erred in failing to properly analyze the meaning of "subversion" in s. 19(1)(e) and did not properly analyze the evidence before concluding the man was a person under s. 19(1)(g) - The Minister was no longer pursuing a security report, but forwarded the file to immigration enforcement officials - The Minister directed a report and inquiry alleging that the man was a person named in s. 27(1)(a) and 19(1)(f)(iii)(B) of the Act after the 1993 amendments (is or was a member of a terrorist organization) - The Federal Court of Canada, Trial Division, rejected the submission that the new inquiry was an abuse of process - See paragraphs 36 to 45.

Administrative Law - Topic 2293

Natural justice - Unfairness - Abuse of power or abuse of process - [See Administrative Law - Topic 25 ].

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - A Palestinian man was granted permanent resident status in 1985 - A 1993 Security Intelligence Review Committee (SIRC) report concluded that there were grounds to believe that as a member of the Popular Front for the Liberation of Palestine (PFLP), he was a member of an inadmissible class under ss. 19(1)(e) (acts of subversion), 19(1)(g) (acts of violence) and 27(1)(c) (subversion by permanent resident) of the Immigration Act - That SIRC report was set aside on the basis that part of s. 19(1)(g) violated the Charter's freedom of association without a final determination on inadmissibility - A new SIRC report based on s. 19(1)(e) and that part of s. 19(1)(g) not found to be unconstitutional was also quashed, on the ground that the SIRC erred in failing to properly analyze the meaning of "subversion" in s. 19(1)(e) and did not properly analyze the evidence before concluding the man was a person under s. 19(1)(g) - The Minister was no longer pursuing a security report, but forwarded the file to immigration enforcement officials - The Minister directed a report and inquiry alleging that the man was a person named in s. 27(1)(a) and 19(1)(f)(iii)(B) of the Act after the 1993 amendments (is or was a member of a terrorist organization) - The man alleged that the new inquiry was res judicata (cause of action estoppel or issue estoppel) because he was found not to be inadmissible on the same facts in two previous judicial decisions - The Federal Court of Canada, Trial Division, held that neither cause of action estoppel nor issue estoppel precluded the new inquiry, because, inter alia, the two previous decisions never finally decided the man's inadmissibility - That issue remained open - In any event, s. 34 of the Act precluded the application of res judicata to preclude a new inquiry under the Act following the 1992 amendments - See paragraphs 19 to 35.

Estoppel - Topic 379

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Cause of action - [See Aliens - Topic 1747 ].

Estoppel - Topic 387

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior proceedings - [See Aliens - Topic 1747 ].

Estoppel - Topic 423

Estoppel by record (res judicata) - Matters precluding estoppel - Statute - [See Aliens - Topic 1747 ].

Statutes - Topic 6703

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - What constitutes retrospective or retroactive operation - A Palestinian man was granted permanent resident status in 1985 - The man admitted being a former member of the Popular Front for the Liberation of Palestine (PFLP), but claimed to have severed all ties in 1992 - Amendments to the Immigration Act in force in 1993 made any person inadmissible on the ground of membership in a terrorist organization - The man submitted that the present inquiry constituted a retrospective application of the amended Act, as the amended provision came into force after he obtained permanent resident status and severed his PFLP ties - The Federal Court of Canada, Trial Division, held that application of the amended legislation was not retrospective - Parliament clearly provided that permanent residents could be excluded from Canada on the basis of their past conduct - The man's vested right to remain in Canada as a permanent resident could be revoked for events occurring before the amended legislation came into force - See paragraphs 46 to 52.

Cases Noticed:

Al Yamani v. Canada (Solicitor General) et al. (1994), 80 F.T.R. 307 (T.D.), refd to. [para. 5].

Al Yamani v. Canada (Solicitor General) et al., [1996] 1 F.C. 174; 103 F.T.R. 105 (T.D.), refd to. [para. 6].

Al Yamani v. Canada (Minister of Citizenship and Immigration) et al., [2000] 3 F.C. 433; 186 F.T.R. 161 (T.D.), refd to. [para. 8].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, refd to. [para. 18].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1, refd to. [para. 20].

Apotex Inc. v. Merck and Co. et al. (2002), 291 N.R. 96 (F.C.A.), refd to. [para. 20].

Doering v. Grandview (Town), [1976] 2 S.C.R. 621; 7 N.R. 299, refd to. [para. 20].

Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 (H.L.), refd to. [para. 28].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 28].

Minister of Employment and Immigration v. Chung, [1993] 2 F.C. 42; 149 N.R. 386 (F.C.A.), refd to. [para. 28].

Canada (Attorney General) v. Canadian Human Rights Commission et al. (1991), 43 F.T.R. 47 (T.D.), refd to. [para. 28].

Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 281 N.R. 1 (S.C.C.), refd to. [para. 30].

Rabbat v. Minister of Employment and Immigration, [1986] 2 F.C. 46 (T.D.), refd to. [para. 32].

Cortez v. Canada (Secretary of State) (1994), 74 F.T.R. 9 (T.D.), refd to. [para. 32].

Halm v. Canada (Minister of Citizenship and Immigration), [1996] 1 F.C. 547 (T.D.), refd to. [para. 32].

Yousif v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 85 (T.D.), refd to. [para. 32].

Ruparel v. Minister of Employment and Immigration et al., [1990] 3 F.C. 615; 36 F.T.R. 140 (T.D.), refd to. [para. 34].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 37].

Estrada v. Minister of Employment and Immigration (1987), 8 F.T.R. 317 (T.D.), refd to. [para. 42].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122, refd to. [para. 43].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 281 N.R. 81, refd to. [para. 43].

Barry and Brousseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, refd to. [para. 47].

Rudolph v. Minister of Employment and Immigration, [1992] 2 F.C. 653; 142 N.R. 62 (F.C.A.), refd to. [para. 49].

McAllister v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 190; 108 F.T.R. 1 (T.D.), refd to. [para. 49].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 51].

Statutes Noticed:

Immigration Act, R.S.C. 1985, c. I-2, sect. 19(1)(e) [para. 10]; sect. 19(1)(f)(iii)(B) [para. 14]; sect. 19(1)(g) [para. 10]; sect. 27(1)(a) [para. 15]; sect. 27(1)(c) [para. 11]; sect. 34 [para. 16]; sect. 40(1) [paras. 12, 17].

Immigration Act and to amend other Acts in consequence thereof, An Act to Amend the, S.C. 1992, c. 49, sect. 110 [para. 13].

Authors and Works Noticed:

Driedger, Elmer A., The Composition of Legislation; Legislative Forms and Precedents (1976), pp. 107, 112 [para. 112].

Lange, Donald J., The Doctrine of Res Judicata in Canada (2000), p. 111 [para. 21].

Counsel:

Barbara Jackman and Ron Poulton, for the applicant;

Donald McIntosh and Jamie Todd, for the respondent.

Solicitors of Record:

Barbara Jackman, Toronto, Ontario, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on October 23, 2002, at Toronto, Ontario, before Kelen, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on November 8, 2002.