Date: 20020322
Docket: IMM-3229-01
Neutral citation: 2002 FCT 315
Ottawa, Ontario, this 22nd day of March, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ALBERTO JUAN VIDELA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] The applicant brought this motion under Rule 369 of the Federal Court Rules, 1998, SOR/98-106 for reconsideration, pursuant to Rule 397(1), of my order dated September 12, 2001, wherein the applicant's application for leave to commence judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("CRDD") was dismissed. If reconsideration is granted, the applicant also seeks an extension of time to file material in support of the leave application.
[2] The applicant is from Argentina. He sought Convention refugee protection in Canada. On June 14, 2001, the applicant was found by the CRDD not to be a Convention refugee, and he was notified of this decision on June 20, 2001.
[3] On July 3, 2001, the applicant filed an application for leave and judicial review of the decision of the CRDD without the assistance of a lawyer. His application record was to be filed on or before August 3, 2001. The applicant never perfected his leave application and on September 12, 2001, the application was dismissed.
[4] Approximately six weeks after the order was made, and approximately three months after the application record was due, the applicant filed a motion for reconsideration of the order dismissing his application for leave, for an extension of time to file material in support of his application for leave and for an extension of time to file this motion.
[5] Rule 397(1) of the Federal Court Rules, 1998, supra provides:
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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.
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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.
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Rule 397 (1)(a) is not applicable in this case because no reasons were issued with the order dismissing the application for leave.
[6] The applicant also refers to Rule 391(b) although it appears that he is referring to Rule 399(1)(b) which states that the Court may set aside or vary an order that was made "in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding". I am satisfied that this is not the case here.
[7] In order for the applicant to obtain leave for an extension of time, he must have a reasonable explanation for the delay and establish an arguable case (see Vinogradov v. Canada (Minister of Employment and Immigration) (1994), F.T.R. 296 (T.D.)). Daniel Earl McLeod states in his affidavit sworn on November 1, 2001 that the applicant was unable to file a record because he could not afford the cost of practitioners. Further, he did not have the transcript of the CRDD hearing as he could not afford to get it. Although I sympathize with the applicant, the applicant's inability to retain counsel is not a sufficient reason for failing to perfect his application on time, nor is it an acceptable explanation for delay that warrants an extension of time (see Pistan v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 1132 (QL)). Further, this Court has held that a tribunal transcript is not required to perfect an application for leave (see Ansomah v. Canada (Minister of Employment and Immigration) unreported, (April 24, 1990), court file 90-A-1261 (F.C.A.)).
[8] Decisions as to applications for leave are final, and are subject to reconsideration only in
very narrow circumstances (see Fernandez v. Canada (Minister of Citizenship and Immigration) 2001 F.C.T. 909; F.C.J. No. 1287 (QL)). Based on Rule 397(1)(b), and the materials filed in support of this motion, I am satisfied this Court has neither accidentally failed to consider, nor has overlooked, relevant materials. Rule 397(1)(b) only contemplates the Court's, but not the party's oversight (see Boateng v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 9 (F.C.A.)).
[9] Based on the evidence before the Court, the applicant has not established a sufficient basis upon which I would exercise my discretion to permit late filing of an application record or reconsider such an application. The applicant's motion is dismissed.
ORDER
[10] IT IS ORDERED that the motion is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
March 22, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3229-01
STYLE OF CAUSE: Alberto Juan Videla v. MCI
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER
AND ORDER OF: The Honourable Mr. Justice O'Keefe
DATED: March 22, 2002
WRITTEN REPRESENTATIONS BY:
Alberto Juan Videla FOR THE APPLICANT
Tamrat Gebeyehu FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada
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