Date: 20001221
Docket: IMM-4296-99
OTTAWA, ONTARIO, WEDNESDAY, THE 21st DAY OF DECEMBER, 2000
PRESENT: THE HONOURABLE EDMOND P. BLANCHARD
BETWEEN:
LUIS EULALIO CEDENO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, Luis Eulalio Cedeno, has brought a motion in writing for an order pursuant to Rule 397 of the Federal Court Rules, 1998, SOR/98-106 for an extension of time for reconsideration of the decision dismissing leave application.
[2] By order dated January 11, 2000, Madam Justice McGillis dismissed the Applicant's application for leave and judicial review.
[3] The applicant, pursuant to Rule 397 of the Federal Court Rules, 1998, may bring a motion to reconsider within 10 days of the date of the order on the grounds 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.
[4] In the case at bar, the applicant has waited more than eight months to bring this motion. In order for the Court to allow an extension of time under Rule 397, the Court must be satisfied that the delay is excusable and that the action the applicant intends to bring has a reasonable chance of success.
[5] In Kibale, Hugessen J.A. (as he then was) held that:
| It is well settled law that a party seeking an extension of the time fixed by the Act or regulations must show (1) that his failure to act within the allotted time is excusable, and (2) that there is a reasonable chance that the action he intends to bring will succeed.1 |
[6] Having reviewed the applicant's motion, I am not satisfied that his failure to act within the allotted time is excusable. Even if one were to accept that the event of the decision and reasons of the adjudicator on the detention review is "new evidence", this occurred over eight months ago. The applicant has offered no or little explanation to justify such a delay.
[7] Even if the delay were excusable, I can not find that the applicant will have a reasonable chance of success in the action he intends to bring. The applicant has not satisfied this Court that there is an arguable case. The applicant failed, pursuant to Rule 397 of the Federal Court Rules, 1998, to demonstrate that the order does not accord with any reasons given for it or that a matter that should have been dealt with has been overlooked or accidentally omitted. The fact that an adjudicator on a detention review issues a release order requiring a cash bond to be posted along with a number of terms and conditions is not in itself necessarily inconsistent with the Minister's opinion.
[8] In reviewing the adjudicator's decision, it is not clear that any or all information that was before the Minister's delegate was before the adjudicator. Nor is it clear, that if the adjudicator had all of that information, whether he would have come to the same conclusion. One cannot conclude from the adjudicator's decision and reasons that the Minister's opinion would have necessarily been different had the decision been before the Minister's delegate. Nor can one conclude from the intervening reasons and decision of the adjudicator that the Court overlooked some matter that should have been dealt with in reaching its decision.
[9] It is noted that Rule 397 does not provide the applicant with a method of appeal. It is not for me to determine whether the Minister would have decided differently if the adjudicator's decision had been before the Minister. Rather, the issue before me is whether there was some matter the Court overlooked in reaching its decision and if so determine if the overlooked matter changes its decision.
[10] The applicant has not demonstrated that there was any omission or oversight on the part of the Court in reaching its decision in January 2000 to dismiss the leave application.
[11] I find there is no basis for reconsideration in this matter.
[12] For the above reasons, this motion for an extension of time and reconsideration is dismissed.
ORDER
UPON MOTION on behalf of the applicant for an extension of time and reconsideration;
AND UPON reading the material before the Court
THIS COURT ORDERS that:
| 1. the motion for an extension of time is dismissed. |
| 2. the motion for reconsideration is dismissed. |
Judge
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1 Kibale v. Canada (Transport Canada) (F.C.A.) [1988] F.C.J. No. 1006; (1988) 103 N.R. 387 (C.A.) at p.388.
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