Docket: IMM-1763-11
Citation: 2011 FC 1011
Ottawa, Ontario, August 19,
2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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SHEEMA SADIA, TALHA NOMAN SAIYED AND
SUMRA RAIHAN SAIYED
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
By
Notice of Motion dated July 19, 2011, Sheema Sadia, Talha Noman Saiyed and
Sumra Raihan Saiyed (the “Applicants”) are seeking an extension of time and
reconsideration of my Order issued July 8, 2011 (the “Order”), dismissing their
Application for Leave and Judicial Review (the “Application”) at the leave
stage. The Applicants sought the judicial review of a decision of an overseas
Visa Officer (the “Officer”) of the Visa Post in Singapore, dated
January 24, 2011, wherein that Officer decided that the application for
permanent residence filed by the Applicants was refused.
[2]
The
Application was disposed of without personal appearance pursuant to paragraph
72(2) (d) of the Immigration and Refugee Protection Act, SC
2001 c 27 (the “Act”). As it is the usual practice of this Court, the Order
determining the Application was issued without reasons. As provided in
paragraph 72(2) (e) of the Act, no appeal lies from a judgement on an
application for judicial review.
[3]
The
Applicants are represented. They submitted a Notice of Motion for extension of
time pursuant to Rule 369 and a Notice for reconsideration pursuant to Rule 397
of the Federal Courts Rules, SOR/98-106, in writing and without personal
appearance. Both parties have filed written submissions.
[4]
Rule
397(1)of the Federal Courts Rules, SOR/98-106, provides as follows:
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.
[5]
Since
the order dismissing the application for leave was issued without reasons, Rule
397(1) (a) cannot apply.
[6]
The
issue for reconsideration is then whether I should reconsider the terms of my
order because a matter that should have been dealt with has been overlooked or
accidentally omitted.
[7]
In
support of their motion, the Applicants have filed written representations
which I have reviewed carefully. The Applicants allege one reason why the
Officer has, in their view, acted unfairly and illegally. Unfortunately, this
reason does not meet the criteria established by the jurisprudence of this
Court (see Lee v Canada (Minister of
Citizenship and Immigration), 2003 FC 867).
[8]
The
Applicants’ counsel also filed an appeal of the officer’s decision, on March
18, 2011, before the Immigration Appeal Division [IAD].
[9]
Rule
397(1) (b) is a technical rule, meant to address situations where a
matter that should have been addressed by the Court was overlooked or
accidentally omitted. It is not the case in the present matter.
[10]
The
Applicants are now using this motion to appeal the Order I have rendered on
their Application for Leave and Judicial Review, which is contrary to the
jurisprudence of this Court (see Kibale v Canada (Department of Transport),
[1988] FCJ No 485).
[11]
The
Applicants assert that their appeal before the IAD cannot be entertained for
lack of jurisdiction yet they have brought their recourse before the IAD.
Section 72(2) (a) of the Act is clear, no parallel proceedings can be
brought before the IAD and this Court, challenging the same decision at the
same time. Under
such circumstances, the Court has no alternative (see Huot v Canada (Minister of
Citizenship and Immigration), 2011 FC 180).
[12]
The
motion for an extension of time and reconsideration is dismissed, no order at
costs.
ORDER
THIS COURT
ORDERS that:
1.
The
Notice of Motion dated July 19, 2011 is dismissed;
2.
The
Order rendered on July 8, 2011 stays; and
3.
There
is no issue as to costs.
"André
F.J. Scott"
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