Date: 20100407
Docket: IMM-510-09
Citation: 2010
FC 369
Ottawa, Ontario, April 7, 2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
SELMA MAEMENO RWAMIHETO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is a
motion dated February 26, 2010 in writing (filed March 15, 2010) to set aside
the Order of Justice Anne Mactavish, dated May 22, 2009, which dismissed the
Applicant’s Application for Leave and for Judicial Review due to the failure of
the Applicant to file an Application Record. Should the motion be granted, the
Applicant requests an extension of time to serve and file the Application
Record.
[2]
The Order
of Justice Mactavish stands as the Court is in full agreement with the written
arguments of the Respondent.
[3]
In Bergman
v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1082, 151 A.C.W.S. (3d) 904, this Court stated that a delay of two
months is a prime reason for dismissing a motion to set aside:
[11] In the very similar case of Vinogradov v. Canada (Minister
of Employment and Immigration), 77 F.T.R.
296; [1994] F.C.J. No. 647 (QL), Justice Andrew MacKay was asked to reconsider
his earlier dismissal of a leave application. There, the delay in bringing
the matter back before the Court was only a matter of days and not, as in this
case, months. Justice MacKay dismissed the motion to reconsider and held
that such relief could only be granted “in very special circumstances” (see
para. 2) and only where the proven facts are sufficient to come within the
applicable rules…
(Reference
is also made to Boubarak v. Canada (Minister of Citizenship and Immigration), 2003 FC 1239, 246 F.T.R. 234).
[4]
The
Applicant has not demonstrated any justification for an extension of time. In Canada (Attorney General) v.
Hennelly
(1999), 244 N.R. 399, 89 A.C.W.S. (3d) 376 (F.C.A.), the Federal Court of
Appeal has drawn the test by which to determine whether a motion for an
extension of time should be granted:
a. a continuing intention to
pursue the application;
b. that the application has some
merit;
c. that no prejudice arises from
the delay; and
d. that a reasonable explanation
for the delay exists.
[5]
In
addition, it has been determined by the Federal Court of Appeal in Canada (Minister
of Citizenship and Immigration) v. Varga, 2006 FCA 394, [2007] 4 F.C.R. 3, that:
[20] For these reasons, I
would allow the Minister’s appeal, set aside the decision of the Applications
Judge, restore the decision of the PRRA officer, and dismiss the respondents’
application for judicial review. I would answer the certified question as
follows:
A PRRA officer has no obligation to consider, in the context of
the PRRA, the interests of a Canadian-born child when assessing the risks
involved in removing at least one of the parents of that child.
[6]
For all of
the above reasons, the motion to set aside the Order dismissing the Application
for Leave and for Judicial Review is dismissed.
ORDER
THIS COURT ORDERS that the motion to set aside the
Order dismissing the Application for Leave and for Judicial Review be
dismissed.
“Michel M.J. Shore”
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