Ottawa, Ontario, April 23, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] The Applicant, Seokumari Samaroo, has brought a motion under Rule 397(1) of the Federal Courts Rules, S.O.R./98-106, for reconsideration of my decision rendered in this proceeding on March 19, 2007. In that decision, I dismissed Ms. Samaroo’s application for judicial review of an unfavourable humanitarian and compassionate (H & C) decision.
[2] In support of this motion, Ms. Samaroo has filed an affidavit attesting to the personal hardships she and her family will face if she is required to return to Guyana. Included with the affidavit are a number of newspaper articles attesting to the prevalence of criminal activity in Guyana and to the ineffectiveness of the authorities to protect victims of crime.
[3] The Memorandum of Argument filed in support of this motion asserts that Ms. Samaroo’s claim to H & C relief was dealt with unfairly and on the basis of an incomplete record. She asks this Court to set aside its decision to allow her to file a new H & C application and to request a new risk assessment so that the missing evidence can be properly assessed. There is, however, nothing within Ms. Samaroo’s affidavit or in her counsel’s submissions to bring this motion within the very limited scope of Rule 397(1). What is required for such relief is evidence that the Court overlooked a matter or accidentally omitted something material from the decision. The Rule does not provide a basis for the Court to reconsider its decision on the merits or to provide an opportunity for an applicant to correct deficiencies in the evidence tendered in the earlier proceeding.
[4] I accept and adopt the description and purpose of Rule 397(1) as set out in Lee v. Canada (Minister of Citizenship and Immigration), 2003 FC 867 at paras. 3-4, 7:
[3] Rule 397(1)(b) is a technical rule, designed to address situations where a matter that should have been addressed was overlooked or accidentally omitted. In my opinion, that is not the situation here.
[4] The Applicant is now arguing that a point raised in argument during the hearing of his application for judicial review was not addressed in the Reasons for Order filed on June 19, 2003. In Haque v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 1141 (T.D.), Justice Pelletier (as he then was) said as follows at paragraph 5 and 6:
...However, I disagree that Rule 397 applies to this situation. My view is that "matter", as used in Rule 397, means an element of the relief sought as opposed to an argument raised before the court. In other words, the Court has failed to deal with some part of the relief sought and an application to reconsider seeks to have the Court address the issue of the relief sought. To permit what are intended to be final orders, from which there is no appeal without the certification of a serious question of general importance, to be opened up because an argument has not been dealt with undermines the finality of the decision. Furthermore, I would not wish to impose on the Court the obligation of dealing with every argument made without regard for its significance or its merit.
In saying this, I am referring to the legal obligation upon a judge preparing reasons. I am not speaking of good practice. Good practice generally includes acknowledging the arguments made by the parties so that they know they have been heard. The wisdom of such a course of action is proved by this application. But there are many reasons why a judge might not deal with all arguments made to the Court. Relevance, significance, lack of merit are among them. Oversight is another. To hold that some of those reasons are sufficient to justify reconsideration while others are not is to invite inquiries into all instances of failure to refer to arguments made. This undermines the finality of decisions made. For that reason, the application for reconsideration is dismissed.
…
[7] In my opinion, he is now trying to re-argue an issue that was clearly dealt with in the Reasons for Order filed in this matter. He is improperly using Rule 397 as a disguised method of appeal and the jurisprudence is clear that the reconsideration rule cannot be used in that way: see Kibale v. Canada (Transport Canada) (1989), 103 N.R. 387 (F.C.A.).
[5] There is no question that Ms. Samaroo will face considerable personal hardship if she returns to Guyana. As I said in my first decision that is regrettable; but it does not create a legal basis for this Court to over-rule a decision made by the immigration officials who exercised the authority lawfully conferred upon them. Such decisions are entitled to considerable judicial deference on applications for judicial review.
[6] There may well be other options to Ms. Samaroo to have her case reviewed again on the merits either from within Canada or from Guyana; but this Court has no authority to provide the relief which she seeks.
[7] This motion is dismissed
ORDER
THIS COURT ADJUDGES that this motion is dismissed.
"R. L. Barnes"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1912-06
STYLE OF CAUSE: SEOKUMARI SAMAROO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATON
Respondent
MOTION DEALT IN WRITING
DATE OF HEARING: February 27, 2007
REASONS FOR ORDER
APPEARANCES:
Stella Iriah Anaele For the Applicant
SOLICITORS OF RECORD:
Stella Iriah Anaele
Barrister & Solicitor
Toronto, ON For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent