Docket: IMM-6873-24
Citation: 2024 FC 1771
Ottawa, Ontario, November 6, 2024
PRESENT: The Honourable Mr. Justice Ahmed
BETWEEN: |
RAJABALI SHIRANI |
Applicant |
and |
THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA |
Respondent |
ORDER AND REASONS
I. Overview
[1] The Applicant, Rajabali Shirani, seeks reconsideration of an order dated September 5, 2024 dismissing his application for leave and judicial review of a decision of the Refugee Appeal Division (the “RAD”
) affirming that the Applicant is not a refugee or a person in need of protection as defined in sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”
). The Applicant brings this motion pursuant to Rule 369(1) and Rule 397(1)(b) of the Federal Courts Rules, SOR/98-106 (the “Rules”
).
[2] The Applicant submits that the Court overlooked his psychological conditions and Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (the “SOGIESC Guidelines”
).
[3] I find the Applicant’s submissions to be meritless. For the reasons that follow, this motion for reconsideration is dismissed.
II. Facts
[4] The Applicant is a citizen of Iran. He is over 70 years old. In February 2023, the Applicant submitted a claim for refugee status on the basis of his identity as a bisexual man.
[5] In November 2023, the RPD refused the Applicant’s claim.
[6] In March 2024, the RPD’s decision was affirmed on appeal. In its decision, the RAD accepted a psychological evaluation report dated January 15, 2024 (the “January 2024 Report”
) as new evidence, but nonetheless refused the Applicant’s claim.
[7] On September 5, 2024, the Applicant’s application for leave and judicial review of the RAD decision was dismissed (the “Dismissal Decision”
). Consistent with the Court’s usual practice, no reasons were provided.
[8] The Applicant now moves for reconsideration of the Dismissal Decision pursuant to Rule 397(1)(b) of the Rules. In support of this motion, the Applicant brings the January 2024 Report and a neurological report dated June 14, 2024 (“the June 2024 Report”
).
III. Analysis
A. Issue and Legislative Scheme
[9] The sole issue in this motion is whether the Court should reconsider the Dismissal Decision pursuant to Rule 397(1)(b) of the Rules.
[10] Rule 397(1)(b) of the Rules provides:
Motion to Reconsider
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
…
(b) a matter that should have been dealt with has been overlooked or accidentally omitted.
[11] The Applicant submits that the Dismissal Decision overlooks section 7.6.1 of the SOGIESC Guidelines, which is reproduced below:
7.6 Vagueness
7.6.1 Testimony about same-sex relationships that is vague and lacking in detail may support a negative credibility inference; however, members should examine whether there are cultural, psychological or other barriers that may explain the manner in which the testimony is delivered. When making a vagueness finding in a case involving a SOGIESC individual, a member must, as in other cases, provide specific reasons to support a finding that the testimony is not comprehensive or fulsome.
[12] The Applicant further submits that the Dismissal Decision overlooks his psychological conditions, as outlined in the January 2024 and June 2024 Reports. Citing In re motion for reconsideration of the Court’s Order in Peshdary v AGC (2018), 2020 FC 137 (“Peshdary”
), the Applicant submits that this new evidence should form the basis of a motion for reconsideration initiated proprio motu, “that is, at [the Court’s] own instance”
(at para 7).
[13] The Respondent submits that the Applicant’s motion is unfounded. The Respondent first notes that the June 2024 Report was not before the Court at the time of the Dismissal Decision and therefore does not constitute “a matter that should have been dealt with”
per Rule 397(1)(b) of the Rules. In any event, the June 2024 Report is inadmissible on judicial review as it was produced after the RAD’s decision in March 2024. The Respondent denies that the Applicant’s psychological conditions were “overlooked,”
as the parties brought submissions about this issue in their memoranda for the leave application and the Applicant brought no evidence to indicate that the Court disregarded these materials. Lastly, the Respondent submits that the present proceeding is distinguishable from Peshdary, as Peshdary addressed a warrant held by the Canadian Security Intelligence Service (“CSIS”
) rather than an immigration matter.
[14] I agree with the Respondent.
B. There is No Indication that Section 7.6.1 of the SOGIESC Guidelines were Overlooked
[15] The Applicant does not substantiate his claim that the Court overlooked section 7.6.1 of the SOGIESC Guidelines. The Applicant’s submissions on this issue consist of a single sentence asserting that section 7.6.1 has been overlooked, and that the Court ought to have considered “psychological or other barriers that may explain the manner in which testimony is delivered.”
This bare assertion is not sufficient to justify reconsideration pursuant to Rule 397(1)(b).
[16] The issue of the SOGIESC Guidelines was properly before the Court on the application for leave and judicial review. The parties made submissions about this issue in their memoranda for the leave application. The Applicant has not brought any evidence that these submissions were ignored.
[17] For these reasons, I find no indication that the Court overlooked section 7.6.1 of the SOGIESC Guidelines.
C. There is No Indication that the Applicant’s Psychological Conditions were Overlooked
[18] There is similarly no indication that the Applicant’s psychological conditions were overlooked. Like the SOGIESC Guidelines, the issue of the Applicant’s psychological conditions was argued by the parties in their memoranda for the leave application. The Applicant has brought no evidence that the Court disregarded these materials in rendering the Dismissal Decision.
[19] The Respondent correctly notes that the June 2024 Report does not assist the Applicant. The June 2024 Report was not before the RAD on appeal or before the Court in the leave application. I agree with the Respondent that it is therefore inadmissible and was not “a matter that should have been dealt with”
pursuant to Rule 397(1)(b) of the Rules.
[20] The inadmissibility of the June 2024 report renders the Applicant’s submissions with respect to Peshdary moot. In any event, I agree with the Respondent that Peshdary is distinguishable from the present proceeding. In Peshdary, the applicant sought to challenge a warrant held by CSIS. Following the Federal Court’s refusal of his requests to quash the warrant and obtain further disclosure, the applicant appealed these refusals to the Federal Court of Appeal. Subsequently, new evidence emerged that:
...potentially put in doubt [the Court’s] earlier rulings and presented a procedural dilemma. Should the new evidence be provided to the Federal Court of Appeal to be considered on the appeal of [the] original Orders? Or, should the new evidence be considered by [the trial judge] on a motion for reconsideration of [his] original decision? If the latter, who should bring the motion? (Peshdary at para 6).
[21] The Court in Peshdary ultimately determined that, “[i]n the unique circumstances of this case…the new evidence should form the basis of a motion for reconsideration that is initiated proprio motu, that is, at [the Court’s] own instance”
(Peshdary at para 7, underline added).
[22] The unique circumstances in Peshdary are not present in this proceeding. In Peshdary, the new evidence was held by the respondent, the successful party in the underlying application. Consequently, neither party was in a position to request reconsideration, as “[the respondent] cannot realistically be expected to ask me to reconsider an Order that was granted in its favour”
and “[the applicant] cannot realistically be expected to bring a motion for reconsideration based on evidence to which he does not have access”
(Peshdary at para 14). No such conflict arises here, since the Applicant is bringing the new evidence and was the unsuccessful party in the underlying application.
[23] Furthermore, whereas the reconsideration motion in Peshdary was brought pursuant to Rule 399 of the Rules, which provides for reconsideration when “a matter…arose or was discovered subsequent to the making of the order”
(Rules, s 399(2)(a)), the Applicant in this case moves for reconsideration pursuant to Rule 397, submitting that the new evidence was “overlooked”
(Rules, s 397(1)(b)). The main component of the Applicant’s new evidence is the June 2024 Report. Having arisen subsequent to the Dismissal Decision, the June 2024 Report cannot have been “overlooked”
within the meaning of Rule 397(1)(b).
[24] Finally, the admissibility of the new evidence was not at issue in Peshdary, whereas in this proceeding the new evidence is inadmissible. This alone is sufficient to dismiss the Applicant’s request for a motion proprio motu.
[25] For these reasons, I find the Applicant’s submissions about his psychological conditions to be meritless, and decline to initiate a motion proprio motu.
[26] Moreover, as in Branco v Canada (Citizenship and Immigration), 2024 FC 907, I find that “the [Applicant’s] arguments”
on this motion “amount to a disguised appeal.”
Setting aside the June 2024 Report, the Applicant’s materials for this reconsideration motion are almost identical to those in his leave application, indicating that the Applicant seeks to relitigate the leave application on substantively the same record that was previously before the Court. This is not the purpose of Rule 397(1)(b). As stated by the Federal Court of Appeal in Sharma v Canada (Revenue Agency), 2020 FCA 203, “[Rule 397] is clearly not meant to be an appeal in disguise, allowing a litigant to re-argue an issue a second time, in the hope that the Court will change its mind”
(at para 3, citing Bell Helicopter Textron Canada Limitée v Eurocopter, 2013 FCA 261 at para 15).
IV. Conclusion
[27] The Applicant has not demonstrated that the Court overlooked his psychological conditions or section 7.6.1 of the SOGIESC Guidelines. I therefore dismiss the Applicant’s motion for reconsideration of the order of this Court dated September 5, 2024.
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