Date:
20130417
Docket: IMM-10442-12
Citation: 2013 FC 395
Vancouver, British Columbia, April 17, 2013
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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OMER HASFEB KHAN
(a.k.a. Omer
Haseeb Khan)
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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, Mr. Khan asks this
Court, pursuant to Rule 397(1) of the Federal Courts Rules, SOR/98-106,
to reconsider the Order made on March 13, 2013, dismissing his application for
leave to review a decision of the Immigration Appeal Division of the
Immigration and Refugee Board dated September 21, 2012 bearing file number
TBI-12172 dismissing his appeal of a visa officer’s refusal to grant him a
travel visa to return to Canada because he had not complied with his residency
obligations as required by subsection 28(2) of the Immigration and
Refugee Protection Act.
[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
and Mr. Khan has not established that either applies in this case.
Specifically, Rule 397(1) is not an avenue of appeal when an applicant
disagrees with a judge’s disposition of a leave application. That, I suspect,
is the situation here.
[4]
For these reasons, the motion must be dismissed.
ORDER
THIS
COURT ORDERS that the motion to reconsider the Order made on March 13,
2013, dismissing the Applicant’s application for leave to review a decision of
the Immigration Appeal Division of the Immigration and Refugee Board dated
September 21, 2012 bearing file number TBI-12172 dismissing his appeal of a
visa officer’s refusal to grant him a travel visa to return to Canada because
he had not complied with his residency obligations as required by subsection
28(2) of the Immigration and Refugee Protection Act is dismissed.
“Russel W. Zinn”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10442-12
STYLE OF CAUSE: OMER
HASFEB KHAN (a.k.a. Omer Haseeb Khan) v THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
MOTION IN WRITING CONSIDERED
AT VANCOUVER, BRITISH COLUMBIA, PURSUANT TO RULE 369
REASONS FOR ORDER
AND ORDER: ZINN J.
DATED: April 17, 2013
WRITTEN
REPRESENTATIONS BY:
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Omer Hasfeb
Khan
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FOR THE APPLICANT
(ON HIS OWN BEHALF)
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Nur
Muhammed-Ally
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FOR THE RESPONDENT
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SOLICITORS
OF RECORD:
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Omer Hasfeb Khan
Mississauga, ON
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FOR THE APPLICANT
(ON HIS OWN BEHALF)
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William F.
Pentney
Deputy
Attorney General of Canada
Toronto, ON
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FOR THE RESPONDENT
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