Date: 20020322
Docket: IMM-3138-01
Neutral citation: 2002 FCT 330
Ottawa, Ontario, this 22nd day of March, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
DIEGO HERNAN ROMERO
MIRNA HEBE PUEBLA
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants brought this motion under Rule 369 of the Federal Court Rules, 1998, SOR/98-106 for reconsideration, pursuant to Rule 397(1), of my order dated September 12, 2001 wherein I dismissed the applicant's application for leave to commence judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("CRDD"). If reconsideration is granted, the applicants also seek an extension of time to file material in support of that leave application.
[2] The applicants are from Argentina. They made a Convention refugee claim in Canada and were found not to be Convention refugees by the CRDD on June 6, 2001, a decision that was communicated to them on June 12, 2001.
[3] On June 27, 2001, the applicants filed an application for leave and judicial review of the decision of the CRDD. Their application record was to be filed on or before July 26, 2001. The applicants never perfected their leave application by filing an application record and on September 12, 2001, I dismissed the application.
[4] On October 11, 2001, approximately one month after the order was made, the applicants filed a motion for reconsideration of the order dismissing their application for leave, and for an extension of time to file material in support of the application for leave.
[5] Rule 397(1) of the Federal Court Rules, 1998, supra provides:
|
397. (1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that (a) the order does not accord with any reasons given for it; or (b) a matter that should have been dealt with has been overlooked or accidentally omitted. |
397. (1) Dans les 10 jours après qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes: a) l'ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier; b) une question qui aurait dû être traitée a été oubliée ou omise involontairement. |
Rule 397(1)(a) is not applicable in this case because no reasons were issued with the order dismissing the application for leave.
[6] The applicants also refers to Rule 391(b) although it appears that she is referring to Rule 399(1)(b) which states that the Court may set aside or vary an order that was made "in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding". This is not the case here.
[7] In order for the applicants to obtain leave for an extension of time, they must have a reasonable explanation for the delay, and must establish an arguable case (see Vinogradov v. Canada (Minister of Employment and Immigration) (1994), F.T.R. 296 (T.D.)). The applicant, Diego Hernan Romero, attests that he was unable to file a record because he could not meet the fees required by a practitioner. Although I have sympathy for the applicants' inability to retain counsel, it is not a sufficient reason for failing to perfect the application on time, nor is it an acceptable explanation for delay that warrants an extension of time (see Pistan v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 1132 (QL)). The applicant also attests that in addition to written reasons, he received a tape transcript of the CRDD hearing on or around July 1, 2001, over three weeks before the application record was due. This is a reasonable amount of time in which the applicants could have reviewed the transcript with the benefit of an interpreter. In any event, this Court has held that a tribunal transcript is not required to perfect an application for leave (see Ansomah v Canada (Minister of Employment and Immigration) (April 24, 1990) court 90-A-1261 (F.C.A.)).
[8] Decisions as to applications for leave are final, and are subject to reconsideration only in very narrow circumstances (see Fernandez v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 1287 (T.D.) (QL)). Based on Rule 397(1)(b) and the materials filed in support of this motion, I am satisfied this Court has neither accidentally failed to consider, nor has overlooked, relevant materials. Rule 397(1)(b) only contemplates the Court's, but not the party's, oversight (see Boateng v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 9 (F.C.A.)).
[9] Based on the evidence before the Court, the applicants have not established a sufficient basis upon which I would exercise my discretion to reconsider such an application or permit late filing of an application record or reconsider such an application. The applicants' motion is therefore dismissed.
ORDER
[10] IT IS ORDERED that the applicants' motion is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
March 22, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3138-01
STYLE OF CAUSE: Diego Hernan Romero and Other v. MCI
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER
AND ORDER OF: The Honourable Mr. Justice O'Keefe
DATED: March 22, 2002
WRITTEN REPRESENTATIONS BY:
Diego Hernan Romero and Other FOR THE APPLICANT
Allison Phillips FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada