Date: 20000714
Docket: IMM-1633-99
Ottawa, Ontario, this 14th day of July 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
QUAZI ZAKEERUL HAQUE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] This is an application for reconsideration of an order dated May 31, 2000 in which I dismissed the applicant"s application for judicial review. The applicant had been found not to be a convention refugee by the Convention Refugee Determination Division ("CRDD") based upon the CRDD"s view that the applicant lacked credibility. In argument before me, five errors were identified in the CRDD"s decision. In my reasons, I dealt with four of them and concluded that while reasonable people could disagree about the CRDD"s conclusions, the evidence could reasonably support its findings and so the award should not be disturbed.
[2] It is conceded by counsel for the respondent that the error which I did not deal with in my reasons was in fact an error. The CRDD found it improbable that the applicant would have been the object of political violence when the documentary evidence showed that a free and fair election had occured in the applicant"s district of Munshigonj. In fact, the documentary evidence was to the effect that a fair election had occurred in Manikgonj, to which the applicant had no connection.
[3] Rule 397 of the Federal Court Rules, 1998 allows a judge to reconsider a decision on the ground that "a matter that should have been dealt with has been overlooked or accidentally omitted." The application of this provision to a failure by a judge to deal with an argument made before him has been considered by two judges of this Court, with different results.
[4] In Klockner Namasco Corp v. "Federal Hudson", [1991] F.C.J. No. 1073, my colleague Denault J. held that the failure to consider an argument which had been made before a judge came within the meaning of the rule. In Balasingam v. M.E.I. (1994), 77 F.T.R. 29, Nadon J. considered the very same question and declined to follow Klockner. I am therefore in the position where there are conflicting decisions of members of this Court on the point so that judicial comity does not require me to adopt either one.
[5] I understand why the applicant and his counsel are concerned about the failure of the reasons issued to refer to an acknowledged error by the CRDD. I acknowledge that my reasons would have been better reasons had I dealt with the issue. However, I disagree that Rule 397 applies to this situation. My view is that "matter", as used in Rule 397, means an element of the relief sought as opposed to an argument raised before the Court. In other words, the Court has failed to deal with some part of the relief sought and an application to reconsider seeks to have the Court address the issue of the relief sought. To permit what are intended to be final orders, from which there is no appeal without the certification of a serious question of general importance, to be opened up because an argument has not been dealt with undermines the finality of the decision. Furthermore, I would not wish to impose on the Court the obligation of dealing with every argument made without regard for its significance or its merit.
[6] In saying this, I am referring to the legal obligation upon a judge preparing reasons. I am not speaking of good practice. Good practice generally includes acknowledging the arguments made by the parties so that they know they have been heard. The wisdom of such a course of action is proved by this application. But there are many reasons why a judge might not deal with all arguments made to the Court. Relevance, significance, lack of merit are among them. Oversight is another. To hold that some of those reasons are sufficient to justify reconsideration while others are not is to invite inquiries into all instances of failure to refer to arguments made. This undermines the finality of decisions made. For that reason, the application for reconsideration is dismissed.
[7] I might add, for the benefit of the applicant, that I did consider the issue of the mistake in location of the election results. I concluded that while it was a mistake of fact, it was not one which was material to the result. Miranda v. M.C.I., [1993] F.C.J. No. 437. It was an oversight on my part to have failed to mention this in my reasons.
[8] Counsel for the applicant invites me to certify a question for appeal pursuant to section 83 of the Immigration Act, R.S.C. 1985 c. I-2. That section provides that there is no appeal from an application for judicial review or "any matter arising under this Act or the rules or regulations thereunder" unless the judge certifies a question. It also provides that the question must be certified "at the time of rendering judgment". Judgment in this matter was rendered on May 31, 2000. I am unable to certify a question at this time.
ORDER
The motion for reconsideration of the order made May 31, 2000 is dismissed.
"J.D. Denis Pelletier"
Judge