IMM-4462-96
B E T W E E N:
FRANK KOBENA BERKO
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
The applicant herein was denied refugee status for two reasons; 1) the tribunal concluded that he was excluded under section F of Article 1 of the United Nation Convention Relating to the Status of Refugees, 2) the tribunal was not satisfied of the existence of a well-founded fear of persecution for convention reasons.
In his application for leave and judicial review, the applicant has argued that among the facts to be considered when granting leave, is that the finding with respect to Section F, if allowed to stand, may also affect the success of an application by his wife to sponsor him. For that reason alone, he argues that leave should be given although he argues additional grounds for leave.
By the motion before me, the applicant applies to file an affidavit containing evidence not available when his record was filed. It is indicated that the affidavit tendered would provide evidence that the success of the sponsorship application will most likely be effected by the finding with respect to Section F. This affidavit does not purport to be relevant to the requested judicial review itself, but rather to the appropriateness of granting leave. The applicant argues that the judge deciding the matter of leave, should be made aware of the wider effect of the impugned decision. If the impugned decision could be altered to remove the heading under Article 1 F, the applicant might become a landed immigrant because of sponsorship even if it were found he had no well founded fear.
It is not the effect of an impugned decision which will decide whether the decision should be judicially reviewed, but rather the manner in which the decision was arrived at. That is to say, the Court will decide whether any of the factors mentioned in the Immigration Act s. 18.1(4) (a) to (f) are applicable. Leave will be given if it appears possible that any of those factors might be shown to apply. No consideration will be given to the effect of the impugned decision in reaching that conclusion. I therefore conclude that the tendered affidavit is irrelevant and the motion should be dismissed.
While I was considering the disposition of this motion, the applicant's reply to the respondent's submissions was received. As has had been observed by a number of judges, the Rule 324 procedure does not contemplate reply submissions. However, the procedure for leave itself, does contemplate a reply and I therefore read the submissions. While I agree with the comments made in the reply with regard to the relevance of the respondent's submissions, the purpose of the affidavit tendered was apparent to me, if not to the respondent. The submissions in the reply do not alter my decision with regard to the affidavit.
O R D E R
The motion to file an additional affidavit is dismissed.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
April 28, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4462-96
STYLE OF CAUSE: FRANK KOBENA BERKO
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
CONSIDERED AT TORONTO, ONTARIO UNDER THE PROVISION OF RULE 324.
REASONS FOR ORDER
AND ORDER BY: GILES, A.S.P.
DATED: APRIL 28, 1997
SOLICITORS OF RECORD:
Mr. Raoul Boulakia
Raoul Boulakia
Barrister and Solicitor
45 Saint Nicholas Street
Toronto, Ontario
M4Y 1W6
Solicitor for the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No. IMM-4462-96
Between:
FRANK KOBENA BERKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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