Date: 20070423
Docket: IMM-1912-06
Citation: 2007
FC 431
Ottawa, Ontario, April 23, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
SEOKUMARI SAMAROO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR ORDER AND ORDER
[1]
The
Applicant, Seokumari Samaroo, has brought a motion under Rule 397(1) of the
Federal Courts Rules, S.O.R./98-106, for reconsideration of my
decision rendered in this proceeding on March 19, 2007. In that decision, I
dismissed Ms. Samaroo’s application for judicial review of an unfavourable
humanitarian and compassionate (H & C) decision.
[2]
In support
of this motion, Ms. Samaroo has filed an affidavit attesting to the personal
hardships she and her family will face if she is required to return to Guyana. Included with the affidavit
are a number of newspaper articles attesting to the prevalence of criminal
activity in Guyana and to the ineffectiveness of
the authorities to protect victims of crime.
[3]
The
Memorandum of Argument filed in support of this motion asserts that Ms.
Samaroo’s claim to H & C relief was dealt with unfairly and on the basis of
an incomplete record. She asks this Court to set aside its decision to allow
her to file a new H & C application and to request a new risk assessment so
that the missing evidence can be properly assessed. There is, however, nothing
within Ms. Samaroo’s affidavit or in her counsel’s submissions to bring this
motion within the very limited scope of Rule 397(1). What is required for such
relief is evidence that the Court overlooked a matter or accidentally omitted
something material from the decision. The Rule does not provide a basis for
the Court to reconsider its decision on the merits or to provide an opportunity
for an applicant to correct deficiencies in the evidence tendered in the
earlier proceeding.
[4]
I accept
and adopt the description and purpose of Rule 397(1) as set out in Lee v. Canada (Minister of Citizenship
and Immigration), 2003 FC 867 at paras. 3-4, 7:
[3] Rule 397(1)(b) is a technical
rule, designed to address situations where a matter that should have been
addressed was overlooked or accidentally omitted. In my opinion, that is not
the situation here.
[4] The Applicant is now arguing
that a point raised in argument during the hearing of his application for
judicial review was not addressed in the Reasons for Order filed on June 19,
2003. In Haque v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. 1141 (T.D.), Justice Pelletier (as he then was) said as follows
at paragraph 5 and 6:
...However, I disagree that Rule 397
applies to this situation. My view is that "matter", as used in Rule
397, means an element of the relief sought as opposed to an argument raised
before the court. In other words, the Court has failed to deal with some part
of the relief sought and an application to reconsider seeks to have the Court
address the issue of the relief sought. To permit what are intended to be final
orders, from which there is no appeal without the certification of a serious question
of general importance, to be opened up because an argument has not been dealt
with undermines the finality of the decision. Furthermore, I would not wish to
impose on the Court the obligation of dealing with every argument made without
regard for its significance or its merit.
In saying this, I am referring to the
legal obligation upon a judge preparing reasons. I am not speaking of good
practice. Good practice generally includes acknowledging the arguments made by
the parties so that they know they have been heard. The wisdom of such a course
of action is proved by this application. But there are many reasons why a judge
might not deal with all arguments made to the Court. Relevance, significance,
lack of merit are among them. Oversight is another. To hold that some of those
reasons are sufficient to justify reconsideration while others are not is to
invite inquiries into all instances of failure to refer to arguments made. This
undermines the finality of decisions made. For that reason, the application for
reconsideration is dismissed.
…
[7] In my opinion, he is now
trying to re-argue an issue that was clearly dealt with in the Reasons for
Order filed in this matter. He is improperly using Rule 397 as a disguised
method of appeal and the jurisprudence is clear that the reconsideration rule
cannot be used in that way: see Kibale v. Canada (Transport Canada)
(1989), 103 N.R. 387 (F.C.A.).
[5]
There
is no question that Ms. Samaroo will face considerable personal hardship if she
returns to Guyana. As I said
in my first decision that is regrettable; but it does not create a legal basis
for this Court to over-rule a decision made by the immigration officials who exercised
the authority lawfully conferred upon them. Such decisions are entitled to
considerable judicial deference on applications for judicial review.
[6]
There may
well be other options to Ms. Samaroo to have her case reviewed again on the
merits either from within Canada or from Guyana; but this Court has no
authority to provide the relief which she seeks.
[7]
This
motion is dismissed
ORDER
THIS COURT ADJUDGES that this motion is dismissed.
"R. L. Barnes"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1912-06
STYLE OF CAUSE: SEOKUMARI
SAMAROO
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATON
Respondent
MOTION DEALT IN WRITING
PLACE OF HEARING: Toronto, ON
DATE OF HEARING: February 27, 2007
REASONS FOR ORDER
AND ORDER BY: BARNES J.
DATED: April 23, 2007
APPEARANCES:
Stella Iriah
Anaele For
the Applicant
Asha Gafar For
the Respondent
SOLICITORS
OF RECORD:
Stella Iriah
Anaele
Barrister &
Solicitor
Toronto, ON For
the Applicant
John H. Sims,
Q.C.
Deputy Attorney
General of Canada For
the Respondent
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