Date: 20020322
Docket: IMM-2931-01
Neutral citation: 2002 FCT 324
Ottawa, Ontario, this 22nd day of March, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
SILVIA ROXANA AUTALAN
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 I dismissed the applicant's application for leave to commence judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("CRDD"). If reconsideration is granted, the applicant also seeks an extension of time to file material in support of that leave application.
[2] The applicant is from Argentina. She came to Canada and made a refugee claim which was refused by the CRDD on May 15, 2001. The applicant was notified and received reasons for this decision on May 22, 2001.
[3] On June 14, 2001, the applicant filed an application for leave and judicial review of the decision of the CRDD. Her application record was to be filed on or before July 16, 2001. The applicant never perfected her leave application by filing an application record and on September 12, 2001, I dismissed the application.
[4] On November 5, 2001, approximately seven weeks after the order was made, and approximately three and one-half months after the application record was due, the applicant filed a motion for reconsideration of the order dismissing her application for leave, and for an extension of time to file material in support of her application for leave.
[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 she 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, she must have a reasonable explanation for the delay, and must 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 2, 2001 that the applicant was unable to file a record because she could not afford the costs of a practitioner. Further, while she received reasons for the decision, she did not have a transcript of the CRDD hearing as she could not afford the cost of the transcript. While I sympathize with the applicant, the applicant's inability to retain counsel, it is not a sufficient reason for failing to perfect her 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 review only in very
narrow circumstances (see Fernandez v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 1287 (T.D.) (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 reconsider such an application or permit late filing of supporting materials. The applicant's motion is therefore dismissed.
ORDER
[10] IT IS ORDERED that the applicant's 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-2931-01
STYLE OF CAUSE: Silvia Roxana Autalan 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:
Silvia Roxana Autalan FOR THE APPLICANT
Deborah Drukarsh FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada
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