Date: 20020117
Docket: IMM-6095-00
Neutral citation: 2002 FCT 55
BETWEEN:
FIROZ RAHMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application by the applicant, pursuant to Rule 399(2)(a)[1] of the Federal Court Rules, 1998, for an order setting aside the order of Rouleau J. dated October 19, 2001, which reads as follows:
UPON MOTION dated the 17th day of September, 2001, in writing, pursuant to Rule 369(1) of the Federal Court Rules, by consent for an Order that [emphasis added]:
1. the application for judicial review be dismissed without costs to either party.
IT IS HEREBY ORDERED:
1. that the application for judicial review be dismissed without costs to either party.
[2] The motion before Rouleau J. was a motion by the Minister filed on September 18, 2001, seeking the dismissal of the applicant's application for judicial review on the ground of mootness. Specifically, the Minister argued that since the applicant had become a permanent resident of Canada as of September 6, 2001, his application for, inter alia, a mandamus was moot.
[3] In response to the Minister's motion, the applicant filed written representations, wherein he took the position that his application was not moot and that, as a result, it should be heard, as scheduled, on November 7, 2001.
[4] In her submissions made in reply to the motion now before me, Ms. Park, counsel for the Minister, concedes that the draft order submitted by the Minister in support of her application to dismiss indicated, through inadvertence, that the motion was proceeding on consent.
[5] After a careful review of the file and after consideration of the parties' written representations, I can only conclude that Rouleau J. made his October 19, 2001, order because he believed that the applicant had consented to the disposition sought by the Minister.
[6] Since it is clear that the applicant did not consent to the order made by Rouleau J., it is my view that in these circumstances, the proper remedy is to set aside his order. This is a matter that was discovered subsequent to the making of Rouleau J.'s order and, therefore, falls within Rule 399(2)(a) of the Federal Court Rules, 1998.
[7] I now turn to the issue of whether I should decide the Minister's notice of motion dated September 17, 2001, which seeks the dismissal of the applicant's judicial review proceedings on the ground of mootness. I have considered all of the written material, including the written representations from both sides, and have concluded that the Minister's motion should be argued orally at a motions' day in Vancouver. I also believe that 1 hour should be aside for this motion. Consequently, I will direct that the Minister's motion be placed on the list of motions to be heard in Vancouver on Monday, January 28, 2002.
Marc Nadon
JUDGE
O T T A W A, Ontario
January 17, 2002
[1] Rule 399(2)(a) reads as follows: "On motion, the Court may set aside or vary an order (a) by reason of a matter that arose or was discovered subsequent to the making of the order;".