Date: 20041006
Docket: IMM-5794-03
Neutral citation: 2004 FC 1372
BETWEEN:
NINA LAZAREVA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER ON RECONSIDERATION
PHELAN J.
[1] The Minister has brought an application for reconsideration under Rule 397 of the Court's order of July 20, 2004 which ordered:
a) that the Minister's decision of July 8, 2003 (in which Ms. Lazareva's request for exemption, from the requirements of filing an application for permanent residence from outside Canada, was denied) be quashed;
b) that the Minister was directed to assess Ms. Lazareva's application from within Canada;
c) that the Minister was to cease to take any steps for the removal of Ms. Lazareva pending the determination of the permanent residence application.
[2] The Minister raises three (3) grounds for its reconsideration motion:
1) that the Court mistakenly took into consideration evidence that was not before it;
2) that the Court mistakenly granted Ms. Lazareva's H & C application;
3) that the Court mistakenly prohibited or restricted the Minister from attempting to remove Ms. Lazareva from Canada.
[3] The remedy under Rule 399 is an extraordinary one to deal with inadvertent errors and to ensure consistency between the reasons for an order and the order itself. It is not a disguised method of appealing a decision; a particularly inappropriate step in immigration cases where there is no automatic right of appeal.
Evidence not before the Court
[4] The Minister complains that the Court took into consideration the fact that Russia was prepared to accept Ms. Lazareva. Since the Minister had concluded that Bulgaria was the country to which she would return, despite her absence of Bulgarian citizenship, the country of return for purposes of her permanent residence application was an important fact.
[5] During the course of the Minister's argument on the issue of "stateless person", counsel for the Minister relied on the fact that Russia would be able to admit her. This was information raised by Ms. Lazareva's counsel to which the Minister's counsel did not maintain an objection.
[6] As a result the Court concluded that this fact was not in dispute. As a fact, it goes to a central issue in this judicial review. The Court can take into consideration facts arising after the decision being reviewed where they are particularly relevant. To conclude otherwise would be to force the Court to blindly ignore the true state of affairs.
[7] The Court is now advised that the Minister does not accept this fact. If the place of return had been the only basis for overturning the Minister's decision, a reconsideration of the decision might be warranted. However, there were other reasons justifying overturning the Minister's decision which stand on their own. Therefore reconsideration is not warranted.
Granting H & C Application
[8] The Minister says that the Court has no jurisdiction to grant Ms. Lazareva's H & C application. Even if that is what the Court had done, it would not constitute proper grounds for a Rule 397 motion.
[9] The Minister concedes at paragraph 6 of its Written Representation in Reply that the Court has the jurisdiction to "direct the lower tribunal to come to a particular conclusion or issue directions such that it directs the result the tribunal must make". The Court's direction contained in the Order does precisely that. The Minister's discretion under section 25(1) of IRPA is to be exercised in a manner which gives effect to the Court's Order. The Minister has the jurisdiction to process Ms. Lazareva's landing application and the Court expects the Minister to do so.
Stay of Removal
[10] Again, the grounds raised by the Minister do not constitute a proper basis for a Rule 397 motion. The Court's Order conforms to its reasons; the Minister is simply attempting a collateral attack or disguised appeal.
[11] The jurisdiction of the Court under subsection 18.1(3) must be read in the context of section 18.1 as a whole, together with section 18 and the changes made to the Federal Court's jurisdiction. Ali v. Minister of Employment and Immigration [1994] 3 F.C. 73 (T.D.).
[12] The Court has the power to issue directions which ensure that the purposes of its Order are not frustrated. An effort to remove Ms. Lazareva on the grounds that she is required to seek permanent residence from outside Canada would frustrate the Court's determination.
[13] Rather than issue a direction to the Minister to make his necessary determination on Ms. Lazareva's application within specified time frames, the Court ensured that its principal decision would not be frustrated. It was and is expected that the Minister will get on with the task of dealing with Ms. Lazareva's application.
Conclusion
[14] This motion will be dismissed.
[15] There are no good reasons to reconsider the Court's conclusion that no question will be certified.
[16] If the Respondent has any issues in carrying out the Court's Order, it should seek further directions from the Court.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5794-03
STYLE OF CAUSE: NINA LAZAREVA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE PHELAN
DATED: October 6, 2004
SOLICITORS ON THE RECORD:
Ms. Inna Kogan
Toronto, Ontario FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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