Date: 20030618
Docket: IMM-3002-01
Citation: 2003 FCT 755
Ottawa, Ontario, this 18th day of June, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
OMAR. M. JASIM. AL. SAMARRAIE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, Mr. Al Samarraie, seeks reconsideration of the Federal Court orders dated March 31, 2003 and May 13, 2003. The reconsideration is requested pursuant to Rule 397(1)(a) of the Federal Court Rules, 1998, SOR/98-106 (the "Rules").
[2] Mr. Al Samarraie applied for permanent residence in the independent category on February 29, 2000. His application was rejected on November 17, 2000. He applied for judicial review of that decision, and the matter was heard by the Federal Court on February 5, 2003, in Vancouver. The applicant subsequently proposed a question of general importance for certification, pursuant to subsection 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. The question proposed was considered and by order dated May 13, 2003, no question was certified..
[3] The applicant now brings a motion for reconsideration of the March 31, 2003, order on the basis, noted in Rule 397(1)(a), that some of the facts in that order are not correct and consequently do not accord with the reasons given.
[4] Rule 397 provides:
| (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.
(2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court.
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(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.
(2) Les fautes de transcription, les erreurs et les omissions contenues dans les ordonnances peuvent être corrigées à tout moment par la Cour.
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[5] The applicant's motion record was filed on May 14, 2003, more than 10 days after the Order. An extension of time was not requested by the applicant nor was the issue raised by the respondent. I will nevertheless allow an extension of time so that the motion may be dealt with on the merits.
[6] The jurisprudence clearly establishes that Rule 397 is not intended to be used as a method of appeal. Rather, the issue is "whether there was some matter the Court overlooked in reaching its decision and if so determine if the overlooked matter changes its decision": Cedeno v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2117 (QL) at para. 9.
[7] In the present case, the applicant submits that the March 31, 2003, order contains two errors of fact. At paragraph 2, the order states that the applicant applied under the "independent" and "assisted relative" categories, whereas the applicant states that he applied only as an independent category candidate. Secondly, the applicant notes that paragraph 3 states that the applicant was interviewed on August 10, 2000, when in fact he was interviewed on November 16, 2000. The applicant's motion record also sets out a number of arguments aimed at disputing the merits of the visa officer's decision.
[8] I am of the view that the two errors of fact do not result in the order not being in accord with the reasons given or that a matter that should have been dealt with has been overlooked or accidentally omitted. There is nothing inconsistent between the reasons and the order. The analysis examines the visa officer's decision in relation to the applicant's work experience as a biologist and his relationship to his aunt and as such clearly address the applicant's submissions concerning his application as an "independent" category immigrant. I also find that the error concerning the interview date is of no import whatsoever.
[9] The applicant also purports to re-open the judicial review by submitting additional arguments concerning the visa officer's decision. This constitutes an attempt to have the decision reconsidered on its merits. As noted earlier, this is not permitted under Rule 397.
[10] The applicant also seeks reconsideration of the May 13, 2003, order, in which I rejected the proposed certified question. In that order, I held that the proposed question did not arise from the issues considered by the Court on judicial review and would therefore not be determinative of the appeal. I fail to see that the reasons given do not accord with the order.
[11] In the result, the motion for reconsideration is dismissed. The two errors of fact in the Reasons for Order and Order will be ordered corrected pursuant to Rule 397(2).
ORDER
IT IS HEREBY ORDERED that:
1. The motion for reconsideration is dismissed.
2. My Reasons for Order dated March 31, 2003, be amended and corrected as follows:
(i) the words "and 'assisted relative' categories" in paragraph 2 be deleted and replaced with "category";
(ii) the words "August 10, 2000," in paragraph 3 be deleted and replaced with "November 16, 2000,".
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: I MM-3002-01
STYLE OF CAUSE: Omar. M. Jasmin Al. Samarrai v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: by way of R.369 motion
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: June 18, 2003
APPEARANCES:
Dr. Sabah Alazzawi FOR APPLICANT
Miss Brenda Carbonell FOR RESPONDENT
SOLICITORS OF RECORD:
Dr. Sabah Alazzawi FOR APPLICANT
Burnaby, B.C.
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Vancouver Regional Office
Suite 900, 840 Howe Street
Vancouver, B.C.V6Z 2S9
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