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:
|
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.
|
397. (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.
|
[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”
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