Date: 20110124
Docket: IMM-5716-10
Citation: 2011
FC 41
Ottawa, Ontario,
January 24, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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XIPING JIN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
By
Notice of Motion dated December 8, 2010 (the “Notice”), Xiping Jin (the
“Applicant”) seeks reconsideration of my Order issued November 26, 2010 (the
“Order”), dismissing her Application for Leave and for Judicial Review (the
“Application”) at the leave stage. The Applicant sought the judicial review of
a decision of a Designated Immigration Officer (the “Officer”) of the Canadian
Consulate in Buffalo, New York, U.S.A.,
dated September 16, 2010, wherein that Officer determined that the application
for a permanent visa made by the Applicant was refused.
[2]
The
Application was disposed of without personal appearance pursuant to paragraph
72(2)(d) of the Immigration and Refugee Protection Act (the “Act”), SC
2001 c 27. As it is the usual practice of this Court, the Order determining the
Application was issued without reasons. As provided for by paragraph 72(2)(e)
of the Act, no appeal lies from a judgement on an application for judicial review.
[3]
The
Applicant is self-represented. The Applicant submitted the Notice for
reconsideration pursuant to Rule 397 of the Federal Courts Rules,
SOR/98-106, in writing and without personal appearance. The Applicant and the
Respondent have filed written submissions.
[4]
Rule
397 of the Federal Courts Rules provides as follows:
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.
Mistakes
(2) Clerical mistakes, errors or omissions in an
order may at any time be corrected by the Court.
[5]
In
keeping with Rule 397(1)(a), as is the usual practice of this Court, the Order
dismissing the Application was issued without reasons; therefore, Rule 397(1)(a)
cannot apply.
[6]
Also,
in keeping with Rule397(1)(b), the remaining issue for consideration would be whether
I should reconsider the terms of my Order because a matter that should have
been dealt with has been overlooked or accidentally omitted.
[7]
In
support of this motion, the Applicant has filed written representations, which representations
I have carefully reviewed. These representations allege four different reasons
why the Officer has, in the Applicant’s view, acted unfairly and illegally.
Unfortunately, I find that none of them to meet the criteria established by the
jurisprudence of this Court as Rule 397(1)(b) is a technical rule meant to
address situations where a matter that should have been addressed by the Court
was overlooked or accidentally omitted (see Lee v Canada (Minister of
Citizenship and Immigration) 2003 FC 867, 124 ACWS (3d) 758). In my
opinion, this is not the case here.
[8]
The
Applicant is now using the Notice to appeal my Order on her Application, which
is contrary to the jurisprudence of this Court (see Kibale v Canada (Transport
Canada) (1989), 103 NR 387, 17 ACWS (3d) 444 (FCA).
ORDER
THIS COURT ORDERS that :
1. The Notice of Motion dated December 8, 2010 is
dismissed;
2. The Order rendered on November
26, 2010 stays; and
3. There is no issue as to costs.
"André
F.J. Scott"
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