Date: 20011128
Docket: IMM-279-01
Neutral citation: 2001 FCT 1309
OTTAWA, Ontario, this 28th day of November, 2001.
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
JEYAPADMINIDEVY ANAND
and SWETHA KHAILIL ANAND
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
MacKAY, J.
[1] The applicants submit a motion in writing pursuant to Rule 369 of the Federal Court Rules, 1998, without personal appearance. The motion seeks
1. an extension of time under Rule 397 to file a notice of motion for reconsideration of the Order of Mr. Justice Dubé, dated May 14, 2001, whereby the applicants' application for leave to seek judicial review was dismissed since the application record had been filed as required;
2. reconsideration of the Order of Mr. Justice Dubé dated May 14, 2001;
3. an extension of time to serve an application record in relation to the application for leave to commence judicial review in this matter, with reference to the Convention Refugee Determination Division ("CRDD") decision which rejected the applicants' application to be determined to be Convention refugees.
[2] The motion in writing also sought a stay of execution of a departure notice dated October 5, 2001, received by the applicants on October 23, 2001 directing the applicants to leave Canada, or to report on November 13, 2001 for removal to the United States. A separate motion for that stay was heard (Court file IMM-5176-01) by telephone and dismissed on November 12, 2001.
[3] The following is a chronology of relevant events:
On January 5, 2001 applicants received a written decision of the CRDD which found they were not Convention refugees.
On January 22, 2001, the applicants filed an application for leave and for judicial review in regard to the CRDD decision.
On May 14, 2001, the application for leave and for judicial review was dismissed by Order of Mr. Justice Dubé, no application record having been filed by the applicants as required by the Court's Rules. Advice about that Order was apparently received by the applicants.
In July 2001, the applicants applied for landing from within Canada pursuant to s. 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 as amended.
On October 23, 2001 the applicants received the removal order directing they leave Canada or report for removal on November 13, 2001.
On October 26, 2001, the motion now before the Court was filed. The respondent's motion record in this matter was filed on November 2, 2001.
[4] By her affidavit in support of the motion before the Court the principal applicant states, in part:
3. Following the rejection of my refugee claim I commenced an Application for leave and for Judicial Review on a timely basis, issuing the same on 22 January 2001.
4. I instructed my counsel who was representing me on that date to create a Record. I understand that one of the constituent elements of the draft Record was my affidavit, which sets out certain facts upon which the leave application is based. I understand that my Counsel would be arguing that there was a breach of natural justice, based on certain facts to which I would depose.
5. I never received any communication from my counsel to attend to sign my affidavit. I verily believe that my counsel never attempted to contact me.
6. Further during the first week of January 2001 I received news from Sri Lanka that some people in the custody of the army were shot dead and I believe that my husband could have been affected by this atrocity. My husband was apprehended by the Sri Lankan army in 1997 and since then I have never seen him. I have a fear that my husband could have been killed. At the same time, I have hope that one day I will be able to see him alive.
Since January I have been experiencing a state of shock, depression, poor memory and concentration. Whenever I think of my husband, I break down in tears and I get nightmares about my husband being shot to death.
As a result of this poor mental condition I was unable to attend on my immigration matters and also personally attend at my counsel's office to sign my affidavit.
7. I am presently under medication and constant observation by the Consultant Psychiatrist of the Mental Health Services. I have been asked to periodically attend the Scarborough General Hospital for supportive psychotherapy and for a review of my mental status.
[5] The applicant's affidavit and the argument based upon it do not demonstrate fully reasons that would justify delay throughout the whole period from late February 2001, when the application record was due, nor is there any evidence to indicate an arguable case, if leave were granted. These requirements have been well established in the jurisprudence of the Court since Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263.
[6] Here the applicants failed to have an application record filed, a failing blamed on then counsel. They then did nothing to seek to review the Order of Dubé J. after learning about it, until October 26, 2001, though in the interim they applied for permanent residence from within Canada on humanitarian and compassionate grounds, an application not yet determined. It is, however, an indication that by July 2001, the applicants had accepted that their application for leave and for judicial review was finally determined, not to be further pursued. In the circumstances, the applicants have not shown their continuing interest to seek reconsideration of the Order of Mr. Justice Dubé rendered May 14, 2001.
O R D E R
The applicants' motion filed on October 26, 2001 for consideration pursuant to Rule 369, is dismissed.
(signed) W. Andrew MacKay
___________________________
JUDGE
OTTAWA, Ontario
November 28, 2001.
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