Federal Court Decisions

Date: 20170210

Docket: IMM-2141-16

Citation: 2017 FC 166

Ottawa, Ontario, February 10, 2017

PRESENT:    The Honourable Mr. Justice Fothergill

ORDER AND REASONS

UPON the motion of the Applicants brought in writing pursuant to Rules 397(1)(b) and 369 of the Federal Courts Rules, SOR/98-106 for reconsideration of my judgment in Abdulmaula v Canada (Citizenship and Immigration), 2017 FC 14 [Abdulmaula];

AND UPON reading the motion records filed on behalf of the Applicants and the Respondent;

AND CONSIDERING the following:

In Abdulmaula, I found that the Refugee Appeal Division [RAD] of the Immigration and Refugee Board reasonably refused the Applicants’ request to adduce a 2015 report of the United Nations High Commissioner for Refugees [UNHCR] as new evidence. I held that the Applicants’ argument that the 2015 UNHCR report should be “deemed” a part of the record was not raised before the RAD, and could not therefore be advanced for the first time in the application for judicial review. Finally, I affirmed the RAD’s conclusion that the Applicants had a viable Internal Flight Alternative [IFA] in Tobruk, Libya. The application was therefore dismissed.

The Applicants complain that I considered only two of the three issues they raised in argument: whether the RAD’s assessment of the 2015 UNHCR report as new evidence was reasonable, and whether the determination of the IFA was reasonable. The Applicants accept my conclusions on both of these issues, but say that I overlooked a third argument: whether the RAD was obliged to refer to the 2015 UNHCR report, even if it did not meet the test for “new evidence” under s 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. They also ask that I certify the following question for appeal: “When an updated document is released after the latest RPD sitting but prior to the RPD decision, who has the duty to consider this new evidence: the RPD or the RAD?”

I am not persuaded that the relief sought by the Applicants falls within the scope of Rule 397(1)(b). The RAD could have considered the 2015 UNHCR report in only two circumstances: as new evidence admitted pursuant to s 110(4) of the IRPA, or as part of the record. Both of these issues are addressed in Abdulmaula, including whether the 2015 UNCHR report could be “deemed” a part of the record before the RAD. The Applicants’ motion amounts to a disguised appeal, which is not the purpose of Rule 397 (Lee v Canada (Citizenship and Immigration), 2003 FC 867 at para 6 [Lee]; Khalil et al v Canada (Citizenship and Immigration), Court File No. IMM-2073-15).

In any event, Rule 397(1)(b) does not permit a party to request reconsideration of legal arguments or issues that were raised in submissions but not addressed in the judgment (Balasingam v Canada (Employment and Immigration), [1994] FCJ No 448 (TD) at para 5; Lee at paras 4 and 5; Haque v Canada (Citizenship & Immigration), [2000] FCJ No 1141 at paras 5 and 6). A “matter” for the purposes of Rule 397 is an element of the relief sought, as opposed to an argument raised before the Court.

Finally, a motion for reconsideration under Rule 397(1)(b) cannot be used to certify a question for appeal (Tran v Canada (Citizenship and Immigration), 2007 FC 1249 at para 8; Raina v Canada (Citizenship and Immigration), 2011 FC 318 at para 9).

The motion is therefore dismissed.

ORDER

THIS COURT ORDERS that the Applicants’ motion for reconsideration of the Court’s judgment in Abdulmaula v Canada (Citizenship and Immigration), 2017 FC 14 is dismissed.

"Simon Fothergill"

FEDERAL COURT

SOLICITORS OF RECORD

BY WRITTEN SUBMISSIONS:

SOLICITORS OF RECORD: