[1993] 2 F.C. 42
A-535-91
The Minister of Employment and Immigration (Applicant)
v.
Pak Fai Chung (Respondent)
Indexed as: Canada (Minister of Employment and Immigration) v. Chung (C.A.)
Court of Appeal, MacGuigan, Linden and Robertson JJ.A.—Toronto, November 24; Ottawa, December 21, 1992.
Citizenship and Immigration — Exclusion and removal — Immigration inquiry process — S. 28 application to set aside adjudicator’s decision to reopen inquiry under Immigration Act, s. 35(1) — Respondent denied fair opportunity at first inquiry to indicate intention to claim refugee status — Reopening permitted under Charter, s. 7 — Adjudicator having jurisdiction under s. 35(1) to reopen hearing to cure Charter violation — Respondent not required to notify Crown of request to reopen inquiry — Adjudicator’s refusal to grant Crown substantial adjournment to challenge jurisdiction not violating natural justice principles—Recommencement of hearing not causing prejudice to either party.
Constitutional law — Charter of Rights — Life, liberty and security—Adjudicator’s jurisdiction to reopen hearing under Immigration Act, s. 35(1) — Reopening permitted under Charter, s. 7—S. 35(1) should be interpreted to embody Charter values — Evidence of Charter violation within “additional evidence or testimony” for s. 35(1) purposes.
Practice — Res judicata — Whether requirements for issue estoppel met — Proceedings involving same parties — Proceedings said to give rise to estoppel final — Whether same question decided — Judgment under R. 495(1)(b) for failure to appear similar to judgment for want of prosecution — Court having dismissed respondent’s application under R. 1733 without addressing merits — Respondent not estopped from alleging Charter infringement before adjudicator in application to reopen immigration inquiry.
This was a section 28 application to set aside an adjudicator’s decision to reopen the original inquiry which he had conducted under subsection 35(1) of the Immigration Act. After his arrival from China in February 1988, the respondent appeared before an adjudicator who had to determine whether he was admissible. Following this initial inquiry, the Adjudicator ordered his exclusion from Canada. The respondent’s section 28 application to have the exclusion order set aside was dismissed for failure to appear and his motion for an order setting aside that decision was also dismissed. Meanwhile, the respondent wrote the same Adjudicator seeking to have the original inquiry reopened under subsection 35(1) but did not notify the Crown of this application. Having concluded that the respondent had been denied a fair opportunity to claim refugee status, the Adjudicator agreed to reopen the inquiry pursuant to subsection 35(1). He relied on subsection 43(1) of the Act which requires the adjudicator to give a person an opportunity to indicate his intention to claim refugee status. The main issue was whether the Adjudicator had jurisdiction to reopen the original inquiry.
Held, the application should be dismissed.
Adjudicator’s jurisdiction to reopen a hearing derives exclusively from subsection 35(1) of the Immigration Act; a number of decisions of the F.C.A., in particular Gray v. Fortier, have strictly interpreted the scope of that provision. However, since that decision, the Court has permitted adjudicators to reopen inquiries on the basis of section 7 of the Charter. In addition, the Supreme Court of Canada, in two recent judgments, has made it clear that subsection 35(1) of the Act should be interpreted so as to embody Charter values. Accordingly, evidence of a Charter violation should be encompassed within the meaning of “additional evidence or testimony” for the purposes of that subsection. Moreover, the word “decision” in that same subsection should be interpreted such that an adjudicator might cure a Charter violation that has occurred at an inquiry. Therefore, the Adjudicator had jurisdiction, under subsection 35(1), to reopen the inquiry he had himself conducted earlier in order to receive additional evidence to the effect that the applicant had been unable to understand what was taking place at the inquiry and was thus effectively denied a fair opportunity to claim refugee status.
Nothing in the Immigration Act or Immigration Regulations requires an applicant to give the opposing party notice of his request to reopen the original inquiry. The Crown had an opportunity to seek judicial review of the decision to reopen the hearing or to challenge the respondent’s evidence, but failed to do so. As a result, the latter was not required to give notice to the Crown upon submitting an application to have his hearing reopened. In refusing to grant a substantial adjournment at the start of the reopened hearing to enable the Crown to challenge his jurisdiction, the Adjudicator exercised his discretion judicially and was not influenced by irrelevant considerations. That the case presenting officer was given the file only the day before the hearing was not determinative. The Minister had three months’ notice to prepare for the reopened hearing. There was no violation of subsection 46(3) of the Immigration Act since a “reasonable opportunity” was offered to the Crown to present evidence, cross-examine witnesses and make representations. Although the transitional provisions are silent as to procedure when an inquiry is reopened under subsection 35(1), they indicate that such inquiries shall be dealt with under the new scheme by having the refugee claims referred to an adjudicator and a member of the Refugee Division. Therefore, the Adjudicator was correct, following the reopening of the inquiry, to convene a credible basis hearing with a representative of the Refugee Division. The recommencement of the hearing cannot be said to have prejudiced the parties in any way; it was the only sensible way to proceed.
As to whether the doctrine of res judicata applies against the respondent, two of the requirements for issue estoppel were met in that (1) the proceedings in question involved the same parties and (2) the proceedings in the F.C.A., said to give rise to the estoppel, were final. The remaining question was whether the same question as was addressed in the respondent’s application to the Adjudicator to reopen the hearing had been decided in either of the proceedings before the F.C.A. In the first proceeding, the respondent’s section 28 application was dismissed under R. 495(1)(b) because he failed to appear for the hearing. Since a judgment based on want of prosecution cannot support issue estoppel and a dismissal under R. 495(1)(b) must be viewed in the same light as a judgment for want of prosecution, the section 28 application dismissed under R. 495(1)(b) cannot give rise to issue estoppel. The Court had dismissed the respondent’s application under R. 1733 without addressing the merits and without considering directly the Charter infringement issue. Therefore, the respondent was not estopped from invoking that issue before the Adjudicator in the application to reopen the hearing; the matter was not res judicata.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
An Act to amend the Immigration Act and to amend other Acts in consequence thereof, Transitional Provisions, R.S.C., 1985 (4th Supp.), c. 28, ss. 42, 43.
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52(1).
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Federal Court Rules, C.R.C., c. 663, RR. 432, 433 (as am. by SOR/79-57, s. 11), 434 (as am. idem, s. 12), 438.1 (as enacted by SOR/90-846, s. 12), 439(4) (as enacted idem, s. 13), 440, 495, 1733.
Immigration Act, R.S.C., 1985, c. I-2, ss. 35(1),(2), 43(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 14), 46(3) (as am. idem), 112(e), 114(1).
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 45.
Immigration Regulations, 1978, SOR/78-172, ss. 35(4) (as am. by SOR/88-180, s. 6), 35(6) (as enacted by SOR/89-38, s. 13), 39.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; (1992), 93 D.L.R. (4th) 36; 74 C.C.C. (3d) 289; 43 C.P.R. (3d) 1; 15 C.R. (4th) 1; 10 C.R.R. (2d) 34; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; (1988), 48 D.L.R. (4th) 193; 88 CLLC 14,011; 84 N.R. 86.
APPLIED:
Gray v. Fortier, [1985] 2 F.C. 525; (1985), 21 D.L.R. (4th) 14; 61 N.R. 197 (C.A.); Kaur v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 209; (1989), 64 D.L.R. (4th) 317; 104 N.R. 50 (C.A.); Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853; [1966] 2 All. E.R. 536 (H.L.).
REFERRED TO:
Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288; (1990), 44 Admin. L.R. 264; 10 Imm. L.R. (2d) 312; 114 N.R. 280 (C.A.); Ihunwo v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 58 (F.C.A.); Said v. Canada (Minister of Employment and Immigration) (1991), 16 Imm. L.R. (2d) 194; 129 N.R. 229 (C.A.); Mattia v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 492; (1987), 10 F.T.R. 170 (T.D.); Grewal v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 581; (1991), 85 D.L.R. (4th) 166 (C.A.); Angle v. M.N.R., [1975] 2 S.C.R. 248; (1974), 47 D.L.R. (3d) 544; 74 DTC 6278; 2 N.R. 397; Hill v. Hill (1966), 57 D.L.R. (2d) 760; 56 W.W.R. 260 (B.C.C.A.); Kok Hoong v. Leong Cheong Kweng Mines Ltd., [1964] 1 All E.R. 300 (P.C.); Lutz v. Pyke (1977), 36 N.S.R. (2d) 420; 76 D.L.R. (3d) 152; 64 A.P.R. 420; 3 C.P.C. 172 (Co. Ct.); Roberge v. Bolduc, [1991] 1 S.C.R. 374; (1991), 78 D.L.R. (4th) 666; 39 Q.A.C. 81; 123 N.R. 1; Byrne v. Frere (1828), 2 Mol. 157 (Ir. Ch.); Magnus v. National Bank of Scotland (1888), 57 L.J.Ch. 902; Mayzel v. Sturm, Lipton, Lipton & Trinity Apartments Ltd. (1957), 10 D.L.R. (2d) 642; [1957] O.W.N. 240 (Ont. H.C.); Pople v. Evans, [1968] 2 All E.R. 743 (Ch.D.); Saywack v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 189; (1986), 27 D.L.R. (4th) 617 (C.A.); Rostamian v. Canada (Minister of Employment and Immigration) (1991), 14 Imm. L.R. (2d) 49; 129 N.R. 394 (F.C.A.); Attorney General for Trinidad and Tobago v. Eriché, [1893] A.C. 518 (P.C.).
APPLICATION to set aside the decision of an adjudicator under subsection 35(1) of the Immigration Act to reopen an inquiry which he had previously conducted. Application dismissed.
COUNSEL:
Bonnie J. Boucher for applicant.
H. J. Yehuda Levinson for respondent.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
H. J. Yehuda Levinson, Toronto, for respondent.
The following are the reasons for judgment rendered in English by
Linden J.A.: The main issue in this section 28 [Federal Court Act, R.S.C., 1985, c. F-7] application is whether an adjudicator had the jurisdiction to reopen an inquiry which he had conducted, pursuant to subsection 35(1) of the Immigration Act [R.S.C., 1985, c. I-2]. There are other issues raised as well which will be dealt with in due course.
THE FACTS
Pak Fai Chung, a citizen of the People’s Republic of China, entered Canada in February, 1988. In accordance with the scheme then in force under the Immigration Act, 1976, S.C. 1976-77, c. 52, Mr. Chung was brought before an adjudicator to determine whether he was admissible to Canada. During the course of that inquiry, the Adjudicator asked Mr. Chung several questions relating to the right to counsel and concerning a possible claim of Convention refugee status. Mr. Chung’s answers, given through an interpreter, indicated some confusion as to the nature of the process.
At the beginning of the inquiry, the Adjudicator asked Mr. Chung if he wanted to be represented by counsel. After initially stating that he would like representation, Mr. Chung subsequently indicated that he did not want to be represented by counsel. As a result, the inquiry proceeded without Mr. Chung’s having the benefit of counsel. Next, the Adjudicator asked Mr. Chung specific questions to ascertain whether he feared persecution under one of the prescribed grounds. Mr. Chung’s answers indicated that he did not want to return to China for economic reasons and that he did not fear persecution. By way of example, one representative statement offered by Mr. Chung was “It’s hard to find a job and hard to make money [in China]”. Some answers suggested that he did not understand the purpose of the inquiry and that there were problems with the interpreting. Parts of the exchange indicate that Mr. Chung was confused. At no time did Mr. Chung ask to apply for refugee status. Following this initial inquiry, the Adjudicator ordered Mr. Chung excluded from Canada.
With the help of an immigration consultant, Mr. Chung commenced an application in July, 1988 under section 28 of the Federal Court Act to have the exclusion order reviewed and set aside. Mr. Chung believed, apparently erroneously, that this immigration consultant was representing him in these proceedings. Mr. Chung never received notice of the date on which his section 28 application was set down for hearing because he had changed his address. As a result, the application was dismissed by the Federal Court of Appeal in absentia on August 22, 1989.
In January, 1990, Mr. Chung consulted a lawyer and found out that his application had been dismissed by this Court. In April of that year, Mr. Chung applied to this Court seeking to set aside that order. In support of his application, Mr. Chung claimed that he entered Canada with the intention of making a claim to Convention refugee status but, on the advice of friends, did not retain counsel to represent him at the inquiry. Without the guidance of counsel, however, he was unable to appreciate the nature of the proceeding. He also contended that he had difficulty explaining to the interpreter the reasons why he did not wish to return to China. On June 15, 1990, this Court dismissed his motion for an order setting aside the August 22, 1989 judgment of this Court dismissing his section 28 application.
On June 4, 1990, eleven days before this Court dismissed his motion to set aside, Mr. Chung wrote the same Adjudicator who had heard the original inquiry to request that that inquiry be reopened pursuant to subsection 35(1). Mr. Chung did not notify the Crown of his application to reopen the hearing; nevertheless, the Adjudicator considered Mr. Chung’s application. In deciding whether to reopen the inquiry, the Adjudicator relied in part, although not exclusively, on the affidavit evidence of Mr. Chung. The Adjudicator, concerning the inquiry that he had himself conducted earlier, determined that:
Mr. Chung was confused and incompletely informed at his inquiry and was beseeching the adjudicator to say something or ask something to initiate the refugee determination process and this was not done. For this reason and because of the following, I believe Mr. Chung is entitled to a reopening.
The Adjudicator concluded that, during the inquiry he had previously conducted, Mr. Chung was “effectively deprived of the ability to make a free, informed and independent decision requesting a refugee claim”. As a result, citing jurisprudence of this Court, the Adjudicator agreed to reopen the inquiry pursuant to subsection 35(1).
To buttress this determination, the Adjudicator referred to subsection 43(1) of the new Immigration Act [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 14] which provides:
43.(1) Before any substantive evidence is given at an inquiry, the adjudicator shall give the person who is the subject of the inquiry an opportunity to indicate whether or not the person claims to be a Convention refugee.
Although that subsection was not in force at the time of the original inquiry, the Adjudicator relied on subsection 43(1) as an indication of the importance of ensuring that potential claimants are provided with an opportunity to claim Convention refugee status. Under the current Immigration Act, R.S.C., 1985, c. I-2 as amended, the Adjudicator is specifically required by subsection 43(1) to give a person an opportunity to indicate whether or not the person claims to be a Convention refugee. In fact, the routine procedure calls for the Adjudicator to explain the refugee determination process to the claimant and then to explicitly ask the claimant whether he or she is going to make a Convention refugee claim. Under the Immigration Act, 1976, which was in force when Mr. Chung appeared before the Adjudicator, however, the onus was on the person concerned to make a refugee claim without any requirement of being asked by the Adjudicator whether he or she wished to do so. The Adjudicator viewed this amendment to the procedure for receiving a refugee claim as evidence that potential claimants should be afforded a genuine opportunity to claim refugee status.
When the reopened hearing was convened, the case presenting officer, who had been assigned the file by his superiors only the day before the hearing, even though they had received it three months earlier, requested an adjournment in order to prepare a challenge to the Adjudicator’s authority to reopen the hearing. The Adjudicator declined to adjourn the proceedings, because there was no adequate explanation for the Crown’s inability to proceed. The Adjudicator observed that the Crown had had three months to prepare the matter and that a substantial adjournment would therefore be inappropriate. The Adjudicator offered to adjourn the matter for fifty minutes in order to allow the case presenting officer some time to prepare submissions. That offer was refused by the case presenting officer.
After dealing with the Crown’s request for a substantial adjournment, the Adjudicator proceeded with a brief inquiry, after which he determined that Mr. Chung was a person eligible to enter Canada. Following the procedures stipulated in the Immigration Act, the Adjudicator then convened a credible basis hearing along with a member of the Convention Refugee Determination Division. At the credible basis hearing, the Adjudicator and the Convention Refugee Determination Division member both ruled that Mr. Chung had a credible basis for a Convention refugee claim. As required under the Act, Mr. Chung’s claim was forwarded to the Convention Refugee Determination Division for a second level hearing.
Subsequently, the Minister of Employment and Immigration launched this section 28 application contesting the Adjudicator’s decision to reopen the original inquiry as well as other matters.
JURISDICTION
The primary issue is whether the Adjudicator had jurisdiction to reopen the hearing. An adjudicator’s jurisdiction to reopen a hearing is established exclusively in subsection 35(1) of the Immigration Act. No other section in the Act empowers an adjudicator to reopen a hearing. Subsection 35(1) reads:
35.(1) Subject to the regulations, an inquiry by an adjudicator may be reopened at any time by that adjudicator or by any other adjudicator for the hearing and receiving of any additional evidence or testimony and the adjudicator who hears and receives such evidence or testimony may confirm, amend or reverse any decision previously given by an adjudicator.
The jurisprudence of this Court has strictly interpreted the scope of this section in the past. In Gray v. Fortier, [1985] 2 F.C. 525 (C.A.), Mr. Justice Pratte [at page 528] explained that section 35 does not give adjudicators “unqualified power to review their decisions and reopen inquiries.” Their powers, under subsection 35(1), are more limited than that, to be exercised only where additional evidence would lead to a change or reversal of a decision made previously by the Adjudicator. Later decisions of this Court have reflected this view. (See Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 (C.A.); Ihunwo v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 58 (F.C.A.); Said v. Canada (Minister of Employment and Immigration) (1991), 16 Imm. L.R. (2d) 194 (C.A.); but see Madam Justice Desjardins, concurring in Kaur, infra).
However, since Gray v. Fortier, this Court has permitted adjudicators to reopen inquiries on the basis of section 7 of The Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982 c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] which reads:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
In Kaur v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 209 (C.A.), for example, this Court permitted the reopening of an inquiry by an adjudicator on the basis of duress upon the claimant by her husband, rendering it a nullity because this violated fundamental justice. While recognizing the authority of Gray v. Fortier, Mr. Justice Heald held that section 7, along with subsection 52(1) of the Constitution Act, 1982 [Schedule B. Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] gave the Adjudicator the power to reopen inquiries in the circumstances of constitutional violations. He explained as follows [at page 222]:
Based on the jurisprudence discussed supra, I have no difficulty in concluding that the Adjudicator had jurisdiction to reopen this inquiry pursuant to subsection 52(1) of the Constitution Act, 1982 and a duty not to apply the limitations inherent in subsection 35(1) and in subsection 45(1) to the extent that this legislation contravened the applicant’s section 7 rights.
The Kaur decision was presaged in Mattia v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 492 (T.D.) where the claimant was shown to have suffered from a mental disability at the time of the inquiry. It was also followed in Grewal v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 581 (C.A.), although, on the facts, the application was dismissed.
In addition, courts and tribunals must keep in mind the exhortation of Mr. Justice Gonthier in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 as follows:
It must be remembered that if there are two possible interpretations of a statutory provision, one of which embodies the Charter values and the other does not, that which embodies the Charter values should be adopted. (at page 660).
Similar advice was offered by Madam Justice L’Heureux-Dubé in Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, writing for the majority, when she explained:
Appellant, while not relying on any specific provision of the Charter, nevertheless urged that preference be given to Charter values in interpretation of a statute ... I agree that the values embodied in the Charter must be given preference over an interpretation which would run contrary to them ... (at page 558).
Following this guidance from the Supreme Court, it is clear that subsection 35(1) of the Immigration Act should be interpreted so as to embody the values of the Canadian Charter of Rights and Freedoms.
According to the language of subsection 35(1), the reopening of a hearing is permitted to consider “additional evidence or testimony”. What constitutes “additional evidence or testimony” must be viewed in light of the Charter. Subsection 35(1) should not, therefore, be interpreted in a manner that would prevent adjudicators from reopening hearings to perfect Charter violations. In other words, reading subsection 35(1) to embody the values of the Charter—particularly the principles of fundamental justice guaranteed by section 7—confirms that evidence of a Charter violation should be encompassed within the meaning of “additional evidence or testimony” for the purposes of subsection 35(1) of the Immigration Act. In addition, the word “decision” in subsection 35(1) should be interpreted in a manner that allows an adjudicator to cure a Charter violation that has occurred at an inquiry.
This interpretation of section 35 is true not only to the values of the Charter but also to the decision in Gray v. Fortier. In that case [at page 526], the applicant sought a reopening under subsection 35(1) “for the purpose of adducing evidence which would show the illegality of the deportation order but which would not affect in any way the validity of the decision on which that order was based.” Where there has been a Charter violation during an inquiry which may lead to an adjudicator’s decision on admissibility being set aside, it cannot be said that evidence of that violation “would not affect in any way the validity of the decision on which that order was based.” Consequently, section 35 permits an adjudicator to reopen a hearing to perfect a Charter violation where that violation affects the Adjudicator’s decision regarding an applicant’s admissibility to Canada.
It should be noted that the evidence of a Charter violation or other matter which has occurred during an inquiry may be considered not at all persuasive or it may cause an adjudicator to change or set aside a decision. If, upon reopening, the decision regarding admissibility is set aside, subsection 35(2) empowers an adjudicator to quash a deportation order or departure notice which was issued based on the finding of inadmissibility which was set aside.
On the facts of this case, therefore, it was permissible for the Adjudicator to reopen the inquiry that he had himself conducted earlier, pursuant to subsection 35(1), in order to receive the additional evidence to the effect that the applicant was unable to understand what was going on at the inquiry and, hence, was effectively denied a fair opportunity to claim refugee status. The evidence submitted to the Adjudicator in the application for reopening indicated that the applicant’s section 7 Charter rights may have been compromised during the initial inquiry. Using Mr. Justice Heald’s language in Kaur [at page 218], Mr. Chung was “effectively deprived of the ability to make a free, informed and independent decision requesting a claim to refugee status”. While subsection 35(1) was thought to be unavailable on the facts in Kaur, making it necessary to employ a Charter remedy, the Adjudicator in this case and on these facts had the jurisdiction under subsection 35(1) to reopen the hearing to remedy this situation and, hence, was correct in doing so.
NOTICE
Another issue raised in this case is whether Mr. Chung was required to give the Crown notice of his request to reopen the original inquiry. An adjudicator’s power to reopen an inquiry is set out in section 35 of the Immigration Act. That section does not indicate what procedures must be followed in applying to have a hearing reopened. Paragraph 114(1)(r) empowers the Governor in Council to make regulations:
114. (1) The Governor in Council may make regulations
...
(r) establishing the procedures to be followed at an inquiry and prescribing the circumstances in which an inquiry may be reopened pursuant to subsection 35(1) ...
Pursuant to this paragraph, the Governor in Council enacted section 39 of the Immigration Regulations, 1978 [SOR/78-172]. That regulation elaborates on subsection 35(1) of the Act but does not comprehensively describe the procedures to be followed in bringing an application to reopen. Section 39 of the Regulations states:
39. An inquiry may be reopened by an adjudicator pursuant to subsection 35(1) of the Act at the written request or with the written permission of the person concerned or where the decision made at the inquiry will be amended to the benefit of the person concerned.
Nothing in this regulation requires or anticipates that an applicant must provide the opposing party with notice of his application for reopening. If the Adjudicator reopens a hearing, the additional evidence can be challenged by means of an application for judicial review or at the reopened hearing. The Crown had an opportunity to seek judicial review of the decision to reopen the hearing, which it did not do. It also had the opportunity to challenge the evidence of Mr. Chung, which it also failed to do. Further, the Crown did not even challenge the lack of notice at the reopened hearing. Such a challenge cannot be successful now. As a result, Mr. Chung’s counsel was not required to give notice to the Crown upon submitting an application to have Mr. Chung’s hearing reopened.
REFUSAL TO GRANT ADJOURNMENT
An additional issue to be considered is whether the Adjudicator’s refusal to grant a substantial adjournment at the start of the reopened hearing to enable the Crown to challenge his jurisdiction violated the principles of natural justice. In our view, the Adjudicator exercised his discretion judicially and was not influenced by irrelevant considerations.
While one must sympathize with the case presenting officer who appeared at the hearing to make representations with less than one day to prepare, the fact that he personally was given the file only the day before cannot be determinative in these circumstances. The Minister had three months’ notice to prepare for the reopened hearing. The file was handled by several persons in the Department before finally being given to the individual who appeared on the Crown’s behalf only the day before the hearing. No satisfactory explanation was offered for this lapse. In spite of this, the Adjudicator offered the case presenting officer fifty minutes to prepare, which offer was rejected. The case presenting officer was present at the hearing but took no part in it, except to repeat his request for an adjournment whenever he was invited to make submissions. We do not see any violation of subsection 46(3) of the Immigration Act [as am. idem], since a “reasonable opportunity” was offered to the Crown to present evidence, cross-examine witnesses, and to make representations in the circumstances of this case. We have not been persuaded to interfere with the Adjudicator’s exercise of discretion.
RECOMMENCEMENT OF A HEARING
Subsection 35(1) of the Immigration Act permits an adjudicator to reopen a hearing but is silent on whether the original hearing shall continue or whether the hearing may be recommenced. Two subsections of the Immigration Regulations, 1978, namely subsection 35(4) [as am. by SOR/88-180, s. 6] and subsection 35(6) [as enacted by SOR/89-38, s. 13], contemplate the recommencement of a hearing in appropriate circumstances. Those two subsections do not specifically apply to the circumstances of this case, but they do make it clear that a recommencement is not an extraordinary event. In this case, the original inquiry was commenced in 1987 under the former immigration scheme (Immigration Act, 1976, S.C. 1976-77, c. 52, s. 45); however, by the time Mr. Chung’s inquiry was reopened in 1991 the former scheme had been substantially changed. The transitional provisions are silent on the question of how to proceed when an inquiry is reopened under subsection 35(1) after the new scheme comes into effect. In general, though, the transitional provisions indicate that inquiries resumed after the commencement of the revised scheme shall be dealt with under the new scheme by having the refugee claims referred to an adjudicator and a member of the Refugee Division. (See, for example, sections 42-43 of the Transitional Provisions [R.S.C., 1985 (4th Supp.), c. 28]). It appears, then, that the Adjudicator was correct, following the reopening of the inquiry, to convene a credible basis hearing with a representative of the Refugee Division.
In addition, it is apparent from section 43 of the revised Immigration Act [as am. idem, s. 14] that a Convention refugee claim is to be made at the outset of an adjudicator’s inquiry “before any substantive evidence is given at an inquiry.” Normally, then, a credible basis hearing will proceed without the benefit of any prior evidence on the record. That describes precisely the situation that transpired following the Adjudicator’s reopening of the hearing in this case. Consequently, it cannot be said that any prejudice was caused to either party on the basis that the hearing was recommenced rather than continued. The case presenting officer could still have cross-examined Mr. Chung on his earlier answers. There really was no alternative course open in the circumstances. Further legislative authority can be found to support this procedure in subsection 112(e) which permits adjudicators to do all “things necessary to provide a full and proper inquiry”. In this unusual situation, this path was followed in order to ensure that there was a “full and proper inquiry.”
In Mr. Chung’s case, once the inquiry was reopened, the hearing had to start again at the beginning in order to cure the breach of fundamental justice. Accordingly, the recommencement of the hearing in this case cannot be said to have prejudiced the parties in any way. It was the only sensible way to proceed in these circumstances.
RES JUDICATA
The doctrine of res judicata, or estoppel per rem judicatam as it is also known, exists in two different forms: cause of action estoppel and issue estoppel. Cause of action estoppel was not argued in this case and need not be considered. As regards the other form of res judicata, the requirements for issue estoppel were set out by Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 (H.L.) and approved by the Supreme Court of Canada in Angle v. M.N.R., [1975] 2 S.C.R. 248 (Spence and Laskin JJ. dissenting in the outcome). Those requirements are:
1. The same question must have been decided;
2. The judicial decision which is said to create the estoppel must be final; and,
3. The parties to the judicial decision or their privies must be the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
Approaching these criteria in reverse order, we can dispense with the latter two requirements quickly. There can be no doubt that the proceedings in question involved the same parties, namely Mr. Chung and the Minister of Employment and Immigration. It is equally clear that the proceedings in this Court which are said to give rise to the estoppel are final. Where an application is dismissed for failure to appear on behalf of the plaintiff under Rule 495 [Federal Court Rules, C.R.C., c. 663], the judgment is final. Similarly, where an application to set aside a judgment pursuant to Rule 1733 of the Federal Court Rules is dismissed, the dismissal constitutes a final judgment.
This leaves us to consider whether the same question as was addressed in the respondent’s application to the Adjudicator to reopen the hearing must have been decided in either of the proceedings before this Court. In the first proceeding before this Court, Mr. Chung’s section 28 application was dismissed pursuant to Rule 495(1)(b) because he failed to appear for the hearing. Where Rule 495(1)(b) is invoked because an applicant (as Mr. Chung was in the initial proceeding before this Court) fails to appear, the judgment that is rendered is similar to a judgment issued for want of prosecution under Rule 440. In contrast, if a respondent, rather than an applicant, had failed to appear—attracting Rule 495(1)(a)—the situation would be akin to a default judgment under Rules 432-439 [Rule 433 am. by SOR/79-57, s. 11; Rule 434 as am. idem , s. 12; Rule 438.1, enacted by SOR/90-846, s. 12; Rule 439(4) enacted idem, s. 13]. In appropriate circumstances, a default judgment may give rise to issue estoppel (See Hill v. Hill (1966), 57 D.L.R. (2d) 760 (B.C.C.A.), at page 767; Kok Hoong v. Leong Cheong Kweng Mines Ltd., [1964] 1 All E.R. 300 (P.C.); Lutz v. Pyke (1977), 36 N.S.R. (2d) 420 (Co. Ct.); Roberge v. Bolduc, [1991] 1 S.C.R. 374). However, a judgment based on want of prosecution cannot support issue estoppel (See Byrne v. Frere (1828), 2 Mol. 157 (Ir. Ch.) at page 180; Magnus v. National Bank of Scotland (1888), 57 L.J. Ch. 902; Mayzel v. Sturm, Lipton, Lipton & Trinity Apartments Ltd. (1957), 10 D.L.R. (2d) 642 (Ont. H.C.); Pople v. Evans, [1968] 2 All E.R. 743 (Ch.D.)). For the purposes of determining whether issue estoppel operates, a dismissal under Rule 495(1)(b) must be viewed in the same light as a judgment for want of prosecution. It follows that the section 28 application by Mr. Chung, which was dismissed under Rule 495(1)(b), cannot give rise to issue estoppel.
Recognizing the difficulty of claiming issue estoppel based on a judgment in the nature of a dismissal for want of prosecution, the applicant in this case relied primarily on this Court’s dismissal of the respondent’s application to set aside under Rule 1733 to ground his claim for issue estoppel. In order to have a judgment set aside under Rule 1733 an applicant must demonstrate that the matter was discovered subsequently and that he has acted with reasonable diligence (See Saywack v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 189 (C.A.); Rostamian v. Canada (Minister of Employment and Immigration) (1991), 14 Imm. L.R. (2d) 49 (F.C.A.)). Normally, in a Rule 1733 application, the Court will consider those two questions before deliberating on the merits of the application. It follows that there is no assurance that the Court will ever consider the merits of an application under Rule 1733 as the application may be dismissed before reaching that point. Indeed, that is what transpired in this case. This Court dismissed Mr. Chung’s application under Rule 1733 without addressing the merits of his application. It cannot be said, then, that this Court determined that the respondent’s Charter rights were not infringed during the original hearing before the Adjudicator; that issue was not directly considered by this Court (See Angle v. M.N.R., supra, quoting [at page 257], with approval, Lord Hobhouse in Attorney General for Trinidad and Tobago v. Eriché, [1893] A.C. 518 (P.C.), at pages 522-523 to the effect that “it is laid down that in order to establish the plea of res judicata the Court whose judgment is invoked must have ... given judgment directly upon the matter in question”). Therefore, the respondent was not estopped from placing the alleged Charter infringement in issue before the Adjudicator in the application to reopen or at the reopened hearing. The matter was not res judicata.
CONCLUSION
This section 28 application will, therefore, be dismissed.
MacGuigan J.A.: I agree.
Robertson J.A.: I agree.