Date: 19991102
Docket: IMM-2002-99
| IN THE MATTER OF THE Immigration Act, S.C. 1988, c.35 and amendments and regulations thereto; |
| IN THE MATTER OF a decision of the Immigration and Refugee Board, Convention Refugee Determination Division regarding the claim to Convention Refugee Status of Muhammad Sadiq Chaudhary. |
BETWEEN:
MUHAMMAD SADIQ CHAUDHARY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SHARLOW J.
[1] The applicant is a failed refugee claimant. He was notified of the negative decision of the Convention Refugee Determination Division on April 6, 1999. On April 20, 1999, an application for leave and for judicial review was filed on behalf of the applicant. A notice of appearance was filed on behalf of the Minister on April 27, 1999.
[2] The Immigration Rules require an application record to be filed within 30 days after filing the application. In this case, the deadline fell on May 20, 1999. The applicant's record was not filed by that date.
[3] On June 7, 1999, counsel for the applicant filed a motion for an extension of time of time to file the applicant's record. An affidavit filed with the motion indicated that someone in the office of counsel for the applicant had miscalculated the deadline for filing the record and thought it was May 23, 1999. The affidavit says that the error was not noticed until May 18, 1999, by which time it was too late to prepare and file the record by May 20, 1999.
[4] The affidavit also stated that if the extension of time was granted, the applicant's record would include a memorandum of fact and law and an affidavit of the applicant sworn May 31, 1999, copies of which were attached.
[5] The affidavit filed with the June 7, 1999 motion does not state that the applicant's record was complete and ready for filing on that date. I would have thought that the applicant's record would have been completed by May 23, 1999, if counsel for the applicants in fact thought that was the deadline. In any event, on June 24, 1999, the Associate Senior Prothonotary extended to July 5, 1999 the deadline for the filing of the applicant's record.
[6] The applicant's record was not filed on or before July 5, 1999. By Order dated August 11, 1999, I dismissed the application for lack of an applicant's record.
[7] On October 6, 1999, counsel for the applicant filed a notice of motion asking me to reconsider my order of August 11, 1999. Counsel for the applicant relies on Rule 397(2) which read as follows:
| Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court. |
[8] The factual basis of the motion is the allegation that counsel for the applicant did not receive the Order of the Senior Associate Prothonotary until after the expiry of the extended deadline.
[9] The Order of the Associate Senior Prothonotary was signed on June 24, 1999 and filed in the Registry on Friday, June 25, 1999. The date of the filing of the Order is evidenced by the date stamp on the originally signed Order, and a certificate of a registry officer signed on July 7, 1999.
[10] Counsel for the applicant relies on the fact that the registry officer's certificate was signed on July 7, 1999. He interprets that to mean that the Order was sent to his office on July 7, 1999. That is not the correct interpretation of the certificate. The certificate means exactly what is says, that on June 25, 1999, the Order was filed in the Registry. The certificate says nothing about the date on which counsel was given notice of the Order.
[11] The notification to counsel of the Order is evidenced by a transmittal document signed by a registry officer. The carbon copy of that document is in the file. It indicates that a copy of the Order was sent by fax and by ordinary mail to counsel for the applicant. The transmittal document is dated Monday, June 28, 1999. From that I infer that a copy of the Order was faxed on that date to counsel for the applicant. I also infer that a copy was put in the mail on June 28, 1999. That would mean that the mailed copy probably was in the hands of the post office on Tuesday, June 29, 1999.
[12] An employee of counsel for the applicant says in an affidavit that they received a copy of the order on July 12, 1999. The affidavit does not say whether the copy of the order that was allegedly received on July 12, 1999 was the faxed copy or the mailed copy. It must be the mailed copy, because a faxed copy is received virtually instantaneously.
[13] Based on the Court file, I conclude on a balance of probabilities that counsel for the applicant received at least the faxed copy of the Order well before July 5, 1999. Therefore, there is no factual basis for this motion and it fails on that ground.
[14] However, even if I am wrong on that factual conclusion, this is not an appropriate case for reconsideration of an order on the basis of Rule 397(2). I do not accept that anything was overlooked or accidently omitted when I ordered the dismissal of this application.
[15] On the contrary, having reviewed the file in its entirety, including the material filed by counsel for the applicant in support of the motion for reconsideration, I have concluded that the cause of the dismissal of this application is the failure of counsel for the applicant to pursue this matter with anything approaching reasonable diligence.
[16] The affidavit filed in support of the motion for reconsideration says that when counsel for the applicant received the Order of the Associate Senior Prothonotary, he was "puzzled." Why he was puzzled is not explained. If he did in fact receive the Order on July 12, 1999 as he claims, it would have been a simple matter to seek clarification of the Order. He did not do that. He does not explain why.
[17] He did not attempt to file the completed applicant"s record immediately after July 12, 1999 with a motion that the filing be accepted late because of the alleged late receipt of the order. He does not explain why. He did not seek a further extension of time, and does not explain why. He did not even attempt to appeal the Order.
[18] For these reasons the motion for reconsideration is dismissed.
"Karen R. Sharlow"
Judge
Toronto, Ontario
November 2, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: MUHAMMAD SADIQ CHAUDHARY |
Applicant
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
DATED: MONDAY, OCTOBER 25, 1999
WRITTEN SUBMISSIONS: Mr. Joseph S. Farkas
SOLICITORS OF RECORD: Joseph S. Farkas
| Deputy Attorney General of Canada |
FEDERAL COURT OF CANADA
Date: 19991102
Docket: IMM-2002-99
| IN THE MATTER OF THE Immigration Act, S.C. 1988, c.35 and amendments and regulations thereto; |
| IN THE MATTER OF a decision of the Immigration and Refugee Board, Convention Refugee Determination Division regarding the claim to Convention Refugee Status of Muhammad Sadiq Chaudhary. |
BETWEEN:
Applicant
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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