Karabaranga v. Canada (Minister of Citizenship and Immigration), docket IMM-2130-04

Date: 20040714

Docket: IMM-2130-04

Ottawa, Ontario, the 14^th day of July 2004.

PRESENT:      THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

                                                     JANVIER KARABARANGA

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                                       ORDER

In regard to the original decision, which is the basis for the motion before the Court, having had originally reviewed all the documentation, submitted by both parties with respect to that original decision, not to grant leave, the Court has, now, on exceptional reconsideration decided to grant leave [Capelos v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 217, (1991) 43 F.T.R. 280];

This is due to inaudible portions of the recording to which reference is made by the Applicant in regard to findings of credibililty. These inaudible portions may also have a bearing on a further consideration of the exclusion clause which is nuanced to the crediblity findings. If the matter of pertinence to the inaudible portions, as specified by the Applicant in his present motion, was not deemed significant, the inaudible portions in, and of, themselves would not necessarily bear the same outcome;

As the Respondent does not oppose an extension of time for the Applicant's motion and in light of the circumstances, the Court will thus accept the late filing;

However, the Court rejects the notion of recusal, as stated in the motion for the following reasons, amongst others;

If, in fact, the reasoning of the Applicant applied, no adjudicator, judge, or board member (whether with, or without, coordinating duties), could ascend to a tribunal of higher instance within the same jurisdiction itself; also, in this vein, a judge of a lower Court would not be able to ascend to an appeal Court within the same common law Court jurisdiction. All of which would preclude a judge of a lower instance from being named to a Court of higher instance;

Furthermore, in regard to recusal, the Court is in agreement with the Respondent's representations in paragraphs 5 to 17 inclusively;

For all of these reasons, the Motion is granted, only, with respect to leave.

THIS COURT ORDERS that the Motion be granted, only, with respect to leave.

"Michel M.J. Shore"

                                                                                                                                                   Judge