Date: 20020322
Docket: IMM-2806-01
Neutral citation: 2002 FCT 320
Ottawa, Ontario, this 22nd day of March, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
RAUL RUFINO RODRIGUEZ
ROBERTO GUSTAVO MICHEL
MARIA ALICIA ARGUELLO
SILVIA CRISTINA AUTALAN
MAXIMILIANO MICHEL
LEANDRO EZEQUIEL MICHEL
FERNANDO NICOLAS MICHEL
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] The applicants brought this motion under Rule 369 of the Federal Court Rules, 1998, SOR/98-106 for reconsideration, pursuant to Rule 397(1), of my order dated September 14, 2001 wherein I dismissed the applicants' application for leave to commence judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("CRDD"). If reconsideration is granted, the applicants also seek an extension of time to file material in support of that leave application.
[2] The applicants are from Argentina. They came to Canada and made a refugee claim that was refused by a single member panel of the CRDD on May 9, 2001.
[3] On June 7, 2001, the applicants filed an application for leave and judicial review of the decision of the CRDD. Their application record was to be filed on or before July 9, 2001. The applicants never perfected their leave application by filing an application record and on September 14, 2001, I dismissed the application.
[4] The applicants filed a motion for reconsideration of the Order dismissing their application for leave on October 30, 2001. They also sought an extension of time to file material in support of their application for leave and an extension of time in which to file this motion.
Rule 397(1) of the Federal Court Rules, 1998 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 |
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) 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. |
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. |
Rule 397(1)(a) is not applicable in this case because no reasons were issued with the order dismissing the application for leave.
[6] The applicants also refer to Rule 391(b) although it appears that they are referring to Rule 399(1)(b) which states that the Court may set aside or vary an order that was made "in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding". This section does not apply here.
[7] In order for the applicants to obtain leave for an extension of time, they must have a reasonable explanation for the delay, and must establish an arguable case (see Vinogrado v. Canada (Minister of Employment and Immigration) (1994), 77 F.T.R. 296 (T.D.)). The applicants' reasons for the delay in filing their record was that they were unable to afford the cost of a practitioner and they did not have the transcript of the CRDD hearing as they could not afford to obtain it. Although I sympathize with the applicant's inability to retain counsel, it is not a sufficient reason for failing to perfect the application on time, nor is it an acceptable explanation for delay that warrants an extension of time (see Pistan v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1132 (Q.L.)); and Ansomah v. Canada (Minister of Employment and Immigration), unreported, (April 24, 1990) court file No. 90-A-1261 (F.C.A.)).
[8] Decisions as to applications for leave are meant to be final and are subject to reconsideration only in very narrow circumstances (see Fernandez v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1287 (T.D.) (QL)). Based on Rule 397(1)(b), and the materials filed in support of this motion, I am satisfied that the Court did not accidentally fail to consider nor has overlooked relevant materials. Rule 397(1)(b) only contemplates the Court's and not the parties' oversight (see Boateng v. Canada (Minister of Employment and Immigration) (1990), 11 Imm.L.R. (2d) 9 (F.C.A.)).
[9] Accordingly, I am not prepared to grant the applicants' reconsideration request. The applicants' motion is dismissed.
ORDER
[10] The applicants' motion is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
March 22, 2002