Docket: IMM-2664-15
Citation:
2016 FC 422
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BETWEEN:
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HIBIL HASSAN
MAHDI
(a.k.a.: MAHDI
HIBIL HASSAN)
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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
PHELAN J.
[1]
This is a motion for reconsideration of this
Court’s Order of February 17, 2016, pursuant to Rule 397 of the Federal
Courts Rules, SOR/98-106:
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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
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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 :
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(a) the order does not accord with any reasons given for it; or
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a) l’ordonnance ne concorde pas avec les
motifs qui, le cas échéant, ont été donnés pour la justifier;
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(b) a matter that should have been dealt with has been overlooked or
accidentally omitted.
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b) une question qui aurait dû être traitée a
été oubliée ou omise involontairement.
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(2) Clerical mistakes, errors or
omissions in an order may at any time be corrected by the Court.
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(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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[2]
The decision of the Refugee Protection Division
[RPD] was to dismiss a claim for refugee protection on the basis that the Applicant
had failed to establish his identity. This finding is directly contrary to the
conclusion of U.S. authorities as to the Applicant’s identity.
[3]
The RPD muddled its reasons by concluding that
the Applicant had failed to produce sufficient evidence of identity and
then concluding that there was no credible basis for the claim. That
last finding deprived the Applicant of his right of appeal to the Refugee
Appeal Division [RAD].
[4]
This Court concluded that the “no credible basis” finding was unreasonable. It then
suspended the operation of the decision to permit the Applicant to commence a
RAD appeal rather than quashing the RPD decision and requiring the Applicant to
go through a new refugee hearing. The effect of the Court’s Order was to
preserve the Applicant’s appeal rights.
[5]
The Respondent brought this motion for
reconsideration on the grounds that the Court overlooked jurisdictional
concerns when it made this type of order. The Respondent argues that the Court
does not have jurisdiction to make any other order than to quash (or presumably
uphold) an administrative tribunal’s decision.
[6]
Firstly, the Respondent assumes that the Court
missed the jurisdictional issue. It is plain from the structure of the Order
that the Court did not miss the jurisdictional issue – it exercised the
supervisory jurisdiction which it has. The Respondent takes too narrow a
reading of s 18.1. The Respondent ignores the Court’s remedial, equitable and
inherent powers and obligations.
[7]
The Court’s Order of suspension was an interim
order; the Immigration and Refugee Board was directed to do something it had
failed to do and the ultimate disposition, failing compliance with the Order,
is the dismissal of the judicial review. All of these steps are within the
Court’s jurisdiction including s 18.1.
[8]
Secondly, this reconsideration application is
improper. It is nothing more than a veiled attempt at an appeal but to the
deciding judge. It is a misuse of the Rule to attempt to do indirectly what it
cannot do directly.
[9]
On these two grounds, this motion should be
dismissed. However, the Applicant has supported the motion and raised a matter
which was not considered by the Court because it had not been raised.
[10]
The Applicant has advised that prior to the
filing of the Application for Leave, the Applicant, with the assistance of
different counsel, commenced an appeal to the RAD which was denied. The situation
now presented is complicated by the conundrum of the Refugee Appeal Division
Rules, SOR/2012-257.
[11]
Had the Court been aware of this hither-before
unknown RAD appeal, the remedy ordered would have been different.
[12]
Therefore, the motion is allowed and a new Order
will issue as attached.
"Michael L. Phelan"
Ottawa, Ontario
April 15, 2016
ANNEX
ORDER
UPON MOTION for
reconsideration of this Court’s Order of February 17, 2016;
AND UPON READING the
materials of the parties;
THIS COURT ORDERS that:
1.
The Respondent’s extension of time is granted;
2.
The Respondent’s request for reconsideration is
denied;
3.
The Applicant’s request for reconsideration is
granted;
4.
The Order of February 17, 2016 is amended as
follows:
a)
The application for judicial review is granted;
b)
The decision of the Refugee Protection Division
is quashed and the matter is sent back to be considered by a different panel.
5.
There are no costs.
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