Federal Court


Immigration

SELECTION AND ADMISSION
Determination of inadmissibility could not be re-litigated by parties or re-determined by officer

Foreign national was citizen of Sri Lanka and United Kingdom who had applied for permanent resident visa. In 2010 officer found foreign national inadmissible pursuant to s. 34(1)(f) of Immigration and Refugee Protection Act (Can.) as officer found that foreign national had been member of Liberation Tigers of Tamil Eelam. Application for judicial review of that decision was dismissed. Foreign national submitted another application for permanent residence in Canada in August 2011, in which he denied having previously made permanent residence applications which were refused. Officer sent foreign national fairness letter as result of misrepresentation. In 2013 officer found foreign national inadmissible pursuant to s. 34(1)(f) of Immigration and Refugee Protection Act and found insufficient humanitarian and compassionate grounds to overcome his inadmissibility. Officer refused application and foreign national applied for judicial review. Application dismissed. Determination of inadmissibility in 2010 stood and could not be re-litigated by parties or re-determined by officer. Three preconditions to operation of doctrine of issue estoppel are that same question has previously been decided, prior judicial decision was final, and parties to both proceedings are same. As all three pre-conditions to operation of issue estoppel were present in this case, officer erred by not considering doctrine of issue estoppel with respect to 2010 decision of Federal Court.  Federal Court denied leave to foreign national in respect of 2010 refusal of his permanent residency application pursuant to s. 34(1)(f) of Act and that decision was final one. It would not be appropriate to send this matter back for re-determination in circumstances of this case because officer could not have come to different conclusion. While court has discretion to relieve against harsh effects of issue estoppel where usual operation of doctrine would work injustice, it is not clear that administrative tribunal has same discretion to override normal operation of issue estoppel in respect of prior court decision. Assuming that administrative tribunals have discretion to override issue estoppel in respect of prior court decisions, this discretion would be even more restricted than court’s discretion to do so, which itself is very limited in application and only occurs in the rarest of cases.

Balasingham v. Canada (Minister of Citizenship and Immigration) (Apr. 14, 2015, F.C., Danièle Tremblay-Lamer J., File No. IMM-2616-14) 253 A.C.W.S. (3d) 909.

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