Docket: IMM-4928-11
Citation: 2011 FC 1250
Ottawa, Ontario,
November 2, 2011
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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LILLIAN
TWEBAZE
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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 motion made in writing, the applicant asks
this Court, pursuant to Rule 397(1) of the Federal Courts Rules,
SOR/98-106, to reconsider the Order made on September 29, 2011, dismissing her
application for leave to review a decision of the Refugee Protection Division
of the Immigration and Refugee Board dated May 11, 2011, denying her claim for
protection. The applicant also seeks an order extending the time for filing her
application record on the leave application.
[2]
Rule 397(1) provides as follows:
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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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[3]
Rule 397(1) is a technical provision permitting
the Court to address situations where there is a clear error in the formal order
issued when one examines the reasons given for it or where some matter should
have been addressed by the Court but was overlooked or accidentally omitted.
It is meant to provide fairness only in those very limited circumstances.
[4]
The Order dated September 29, 2011, accords with
the reasons given for it. No application record had been filed and that fact
is not disputed by the applicant. Rather, she asserts that she failed to file
it due to a depression she suffered at the relevant time. Rule 397(1)(a) does
not apply.
[5]
Further, there was nothing on September 29, 2011,
that was overlooked or accidentally omitted. As noted, the application for
leave was dismissed for failure to file an application record within the time
provided by the Rules. It is not suggested by the applicant that, for example,
it had been filed but did not find its way to the applications judge. Rather,
she is seeking relief in the nature of an appeal from the Order made, which
relief is not available to her and is contrary to the provisions of the Immigration
and Refugee Protection Act, SC 2001, c 27, s 72(2)(e) and
the jurisprudence of this Court. Rule 397(1)(b) does not apply.
[6]
For these reasons, the motion must be dismissed.
ORDER
THIS
COURT ORDERS that the motion to set aside the
Order dated September 29, 2011, dismissing the applicant’s Application for
Leave and for Judicial Review due to the failure of the applicant to file an
applicant’s record and for an order extending the time to serve and file the applicant’s
record, is dismissed without costs.
"Russel W. Zinn"
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