Date: 20000818
Docket: IMM-1198-00
BETWEEN:
MANONMANY VELUPILLAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion for reconsideration of an order of the Court dated June 15, 2000 dismissing the application for leave and for judicial review in this matter.
[2] The decision simply says: "Demande d"autorisation rejetée"; which is the usual wording of decision on leave.
[3] The applicant based his motion on Rules 397(1)(b), 399(2)(a) and 3 of the Federal Court Rules, 1998.
[4] Rule 397(1)(b) says:
| 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: (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. (My emphasis) |
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) 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. (Mon soulignement) |
[5] Rule 399(2) reads as follow:
| 399(2) On motion, the Court may set aside or vary an order: (a) by reasons of a matter that arose or was discovered subsequent to the making of the order; or (b) where the order was obtained by fraud. (My emphasis) |
399(2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l"un ou l"autre des cas suivants: a) des faits nouveaux sont survenus ou ont été découverts après que l"ordonnance a été rendue; b) l"ordonnance a été obtenue par fraude. (Mon soulignement) |
[6] The applicant alleges that I failed to deal with or overlooked the decision rendered by the Federal Court of Appeal in Haghighi v. Canada (M.C.I.), which was rendered on June 12, 2000, three days prior to my order rendered on June 15, 2000.
[7] In the respondent"s memorandum, there was a mention that the appeal in the Haghighi case had been heard by the Federal Court of Appeal on May 1, 2000 and that the decision was not yet rendered.
[8] As it was clearly pointed out by counsel for the respondent in the case law, Rule 397 concerns oversight and omission on the part of the Court and not a failure on the part of a party; in the case at bar, I am convinced that both parties were fair with the Court and they presented their arguments in light of the case law, at the moment of the hearing.
[9] When I signed the decision on June 15, 2000, I was not yet aware of the decision rendered in Haghighi by the Federal Court of Appeal, three days before.
[10] Given the number of decisions rendered by the Trial Division and by the Appeal Division, it takes a few days before being aware of these judgments and unfortunately, I read that decision after my decision of June 15, 2000 was rendered.
[11] I am convinced that the applicant is right when he argues that the Federal Court of Appeal"s decision in Haghighi could have had an impact on my decision on the leave application.
[12] On June 12, 2000, the Federal Court of Appeal confirmed that a humanitarian applicant must be allowed to see an opinion sought from a PCDO: In Haghighi v. Canada, [2000] F.C.J. No. 854, Federal Court of Appeal, Justice Evans said:
| For these reasons I would dismiss the appeal. I would answer the certified question as follows: it was a breach of the duty of fairness for the immigration officer, prior to her decision, to have failed to inform the respondent of the content of the PCDO"s risk assessment, with which she had concurred, and to give him a reasonable opportunity to attempt to identify errors or omissions in it. |
[13] I should also mention that this is an unusual situation and I have no hesitation to decide that Rule 399(2)(b) applies in the circumstances and the Court of Appeal"s decision in Haghighi is a matter that was discovered subsequent to the making of the order.
[14] For these reasons, THIS COURT ORDERS THAT:
The order of June 15, 2000 is set aside;
1. Leave is granted and the application for judicial review is deemed to have been commenced;
2. The hearing of the application for judicial review is hereby fixed for Wednesday, the 20th day of September, 2000 to commence at 9:30 a.m., at the Federal Court of Canada, 30, McGill Street, Montréal, Québec, for a duration not exceeding two (2) hours;
3. The hearing shall be conducted in the French language;
4. The Tribunal shall send copies of its record to the parties and the Registry of the Court on or before August 25, 2000, unless it has already done so;
5. Further affidavits, if any, shall be served and filed by the applicant on or before August 31, 2000;
6. Further affidavits, if any, shall be served and filed by the respondent on or before September 6, 2000;
7. Cross-examinations, if any, on affidavits shall be completed on or before September 11, 2000;
8. The applicant's further memorandum of argument, if any, shall be served and filed on or before September 15, 2000;
9. The respondent's further memorandum of argument, if any, shall be served and filed on or before September 18, 2000;
10. The transcripts of cross-examinations, if any, shall be filed on or before September 20, 2000;
| 11. The schedule was adjusted pursuant to Rule 21(2) of the |
Federal Court Immigration Rules, 1993.
Pierre Blais
Judge
OTTAWA, ONTARIO
August 18, 2000