Docket: IMM-3361-11
Citation: 2011 FC 1256
Ottawa, Ontario, November 3,
2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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AMARJIT KANG
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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
(ON MOTION FOR RECONSIDERATION)
[1]
On
26 September 2011, I dismissed an application for leave of the Court to
commence an application for judicial review of a visa officer’s decision refusing
Ms. Kang’s application for a temporary work permit as a live-in-caregiver. A
motion for reconsideration was filed in this Court on 14 October 2011 by the
Applicant. The grounds for reconsideration are:
a. a failure of
the Minister to file a motion record in opposition to the application;
b. a procedural
error in that there was no application by the Minister asking the Court to
dismiss the application for judicial review; and
c. a procedural
error in that the application was dismissed without any evidence before the
Court, or any opposing application by the Minister.
[2]
The
Minister not only opposes on the broad ground that the Court is functus
officio, but also on the grounds that he had never been served with the
application record and that the motion for reconsideration has been filed too
late. I need not take into account the last two grounds. In this case, there is
an affidavit sworn 27 June 2011 and filed in Court that day which states that
applicant’s record had been served upon solicitors for the Minister. There was
something served, but it may not have been the entire record. Had I granted
leave, it would have been open to the Minister to move under rule 399 of the Federal
Courts Rules to have the order set aside on the basis that he failed to
file a record by accident or mistake or by reason of insufficient notice of the
proceeding. However, that is not the case.
[3]
Motions
to reconsider are covered by rule 397 which 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.
(2) Clerical mistakes, errors or omissions in an order may at
any time be corrected by the Court.
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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.
(2) Les fautes de transcription, les erreurs et les omissions
contenues dans les ordonnances peuvent être corrigées à tout moment par la
Cour.
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[4]
The
motion to reconsider is without merit and is dismissed.
[5]
In
this particular case, as is usual, the Minister filed an appearance. However, he
did not follow-up with his own record, which is somewhat out of the ordinary. In
addition, from time to time, after filing an appearance, the Minister may write
to the Court to say he does not take a position on the application for leave
but, if granted, reserves the right to make representations on the subsequent
judicial review. It has even been known that the Minister has written to the
Court consenting to both the application for leave and the judicial review.
[6]
Rule
14 of the Federal Courts Immigration and Refugee Protection Rules
provides that where a party has failed to file and serve a document within the
time fixed, the judge may, without further notice, determine the application on
the basis of the material then filed.
[7]
In
my opinion, the material filed by the applicant did not support an arguable
case (Bains v Canada (Minister of Employment and Immigration) (1990),
109 NR 239, [1990] FCJ No 457 (QL); and Hinton v Canada (Minister of
Citizenship and Immigration), 2008 FC 1007, [2008] FCJ No 1252 (QL)) and so
the application for leave was dismissed.
[8]
Leave
is granted by the Court, not by the Minister. Section 72 of the Immigration
and Refugee Protection Act requires that an application for leave be made
to the Court. The Minister’s silence, non opposition or even acquiescence is
not relevant.
[9]
Nothing
was overlooked, which is a condition precedent for a motion for reconsideration
under rule 397. The Court is funcus officio.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that the motion for reconsideration is dismissed.
“Sean Harrington”
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