Date: 20080509
Docket: IMM-2443-07
2008 FC 592
Vancouver, British Columbia, May 9, 2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
SZU
MEI LEE
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ms.
Szu Mei Lee (the “Applicant”) seeks reconsideration, pursuant to Rule 397 of
the Federal Courts Rules, SOR/98-106 (the “Rules”), of the Order made in
this matter on April 4, 2008. That Order dismissed the Applicant’s application
for judicial review of the decision of an Immigration officer (the “Officer”) made
on May 29, 2007, in which the Applicant was found not to be a member of the
Spouse or Common Law Partner in Canada Class as described in section 124 of the
Immigration and Refugee Protection Regulations, SOR/2002-227 (the “IRPA Regulations”).
[2]
The Applicant also requests that a question be
certified, pursuant to the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”), if the motion is dismissed. Further, she seeks costs
on this motion.
[3]
The heart of the Applicant’s argument in this
matter is that, in dismissing her application for judicial review, the Court
failed to take into consideration her request to the Officer that her
application for permanent residence in Canada include assessment of the best interests of her child and of
humanitarian and compassionate grounds.
[4]
The Minister of Citizenship and Immigration (the
“Respondent”) opposes the Applicant’s motion and argues that there is no basis
for reconsideration pursuant to Rule 397.
[5]
Rule 397 provides:
|
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.
|
[6]
In my opinion, the Applicant has failed to show that there is any basis
for reconsideration pursuant to Rule 397. The subject of the application for
judicial review was a spousal sponsorship application, not a humanitarian and
compassionate application. According to the decision of the Federal Court of
Appeal in South Yukon Forest Corp. v. Canada (2006), 345 N.R. 310, Rule
397 cannot be invoked where there is no ambiguity or uncertainty as to what the
original order meant or where there is nothing about the original order that is
incomplete.
[7]
Rule 397 cannot be used to reverse what has already been ordered.
[8]
As for certification of a question, no question has been proposed.
Subsection 74(d) of the Act provides that no appeal may be made when “in
rendering judgment, the judge certifies that a serious question of general
importance is involved and states the question.” In my view, no such question
arises here.
[9]
Finally, I see no grounds for an award of costs in relation to this
matter. If the Applicant wishes to present an application pursuant to section
25 of the Act, that is a humanitarian and compassionate application, she is at
liberty to do so.
[10]
The motion is dismissed.
ORDER
THIS COURT
ORDERS THAT the motion is dismissed.
“E. Heneghan”
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