Date:
20080204
Dossier: IMM-3352-07
Citation: 2008 FC 141
Ottawa, Ontario, February 4, 2008
Present:
The Honourable Mr. Justice Blais
BETWEEN:
DUNIA RIVERA
MORA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is a
motion to reconsider an order made on December 2l, 2007, dismissing the
application for leave and for judicial review.
RELEVANT
FACTS
[2]
The
applicant was born on November 19, 1978. She arrived in Canada on December 16, 2002. In 2005, she began a
relationship with a Canadian citizen.
[3]
On
December 29, 2006, when the applicant was pregnant, she applied for permanent
residence based on humanitarian and compassionate considerations.
[4]
On May 25, 2007, she gave birth to Charles
Antoine Roberge in Canada. The father is a Canadian
citizen and had been in a relationship with the mother since 2005.
[5]
On August
16, 2007, the applicant filed an application for leave and for judicial review
of the decision by immigration officer Jérôme Lapierre on July 18, 2007, refusing
to grant an exemption to the applicant and her child based on humanitarian and
compassionate considerations.
[6]
On December 21, 2007, the application for leave
and judicial review was dismissed.
[7]
On
January 16, 2008, the applicant filed a motion to reconsider the order dated December 21,
2007.
[8]
Rule 397
of the Federal Courts Rules states:
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.
|
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.
Erreurs
(2) Les fautes de transcription, les
erreurs et les omissions contenues dans les ordonnances peuvent être
corrigées à tout moment par la Cour.
|
[9]
Did the
Court fail to take into account a relevant document or evidence in making its
order?
[10]
As I
already pointed out in Nkangura Twagirayezu v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1384, at
paragraph 15, “section 397 may not be used to indirectly appeal a decision
that is not itself subject to appeal.”
[11]
The
respondent properly alleges that even though the decision to dismiss the
application for leave does not include reasons, the entire application record
bears on the best interests of the child. It is therefore impossible that the
child’s interests were not examined.
[12]
As for the
documentary evidence, there was only an affidavit signed by the applicant. It
goes without saying that it was considered.
[13]
The
Federal Court summarily decided the applications for leave and for judicial
review.
[14]
As a
motion to reconsider is not an appeal, I believe that I have assessed all of
the evidence in the record as presented during the application for leave and this
will be sufficient to dismiss this motion.
ORDER
THE COURT ORDERS that the motion be
dismissed.
“Pierre Blais”
Judge
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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