Federal Court Decisions

Date: 20070227

Docket: IMM-5198-06

Citation: 2007 FC 223

Ottawa, Ontario, February 27, 2007

PRESENT:     The Honourable Mr. Justice Harrington

BETWEEN:

JAMMAL ABBUD

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]               Mr. Abbud, an Israeli citizen, asked the Minister to remain in Canada while his application for permanent residence was being considered. This is contrary to the normal rule. However section 25 of the Immigration and Refugee Protection Act (IRPA) permits the Minister to grant permanent resident status, or an exemption from any applicable criteria or obligation of the Act, on humanitarian and compassionate grounds.  Mr. Abbud’s request was denied. He applied to this Court for a judicial review of that decision. In accordance with section 72 and following of IRPA, he had to first obtain leave. That application is to be dealt with without delay and in a summary way without personal appearance. I refused to give leave and, as is customary, did not give reasons.

[2]               Mr. Abbud has no statutory right to appeal that decision. However, he was entitled to bring on a motion to reconsider under rule 397 of the Federal Courts Rules. He did so. I dismissed his motion. These are the reasons why.

[3]               Rule 397 provides:

[4]               The only part of the rule which is pertinent is whether a matter that should have been dealt with was overlooked or accidentally omitted.

[5]               The record reveals that it was Mr. Abbud’s intention not simply to make a general immigration application from Canada on humanitarian or compassionate grounds. He was also invoking the spouse or common-law partner in Canada class, as after his arrival in Canada he married. Unfortunately, the material pertaining to his spouse or common-law partner exemption request was misfiled, because his lawyer inadvertently provided the wrong file number. This point came to the officer’s attention after she had made her negative decision. She made a note to file that perhaps she should reconsider the matter and wrote that she had spoken to her supervisor who agreed. However, in the end she decided not to revisit her decision.

[6]               All this material was in the court record, and was considered. Although there is an appearance of unfairness if one makes a decision without all the material at hand, that material has to be relevant.

[7]               What had struck me when I had read the application for leave was that the officer stated that Mr. Abbud’s previous criminal convictions made him ineligible to apply under the spouse or common-law partner in Canada class. Since that statement was not challenged in Mr. Abbud’s memorandum of fact and law in support of his application, I was of the view that there should be no consequence for not considering something which could not be considered in any event. Otherwise, the decision appeared to be very sound, and so I dismissed the application because I did not think there was a fairly arguable case in Mr. Abbud’s favour (Bains v. Canada (Minister of Employment and Immigration) (1990), 109 N.R. 239 (F.C.A.)).

[8]               Even during the hearing on the motion to reconsider, it was not strenuously argued on behalf of Mr. Abbud that the officer was wrong in her interpretation of the spouse or common-law partner in Canada class Guidelines. The Minister says that the officer was right, but neither party has actually put the Guidelines before me.

[9]               Mr. Abbud argues that even if he was not eligible to apply under the spouse or common-law partner in Canada class, a good deal of the material which he submitted and which was not before the decision-maker would be relevant in a normal H&C application. However that point had not been argued in the written memorandum in support of the leave application.

[10]           Rule 397 addresses injustice if the Court, not a party, has overlooked or accidentally omitted something. If the Court is wrong in this case, it is not because of something which was overlooked or accidentally omitted. Even if I were of the view on reconsideration that I should have granted leave, I cannot do so. Stability of judgments is one of the cornerstones of our legal system. A judgment must stand unless and until set aside on appeal, in cases which allow of appeals, or if the narrow circumstances of rule 397 and following are met (Metodieva v. Canada (Minister of Employment and Immigration (F.C.) (1991), 132 N.R. 38 and Khroud v. Canada (Minister of Citizenship ad Immigration), 2002 FCT 1157). Consequently, the motion to reconsider has to be dismissed.

[11]           Apparently Mr. Abbud has gone back to the Minister and has asked him to reconsider. He has refused. That matter is not before me, but it bears mentioning that the dismissal of the application for leave, and the dismissal of the motion for reconsideration do not preclude the Minister from taking another look at this matter.

ORDER

            THIS COURT ORDERS that the motion to vary the order issued 15 January 2007 is dismissed. There shall be no order as to costs.

“Sean Harrington”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          IMM-5198-06

STYLE OF CAUSE:                          Jammal Abbud v. The Minister of Citizenship and Immigration

PLACE OF HEARING:                    Ottawa, Ontario

                                                            (By way of conference call Ottawa/Toronto)

DATE OF HEARING:                      February 26, 2007

REASONS FOR ORDER:               HARRINGTON J.

DATED:                                             February 27, 2007

APPEARANCES:

SOLICITORS OF RECORD: