IMM-9-97
BETWEEN:
EMMANUEL SOLIS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER & ORDER
TEITELBAUM J.:
On January 2, 1997, the applicant, Emmanuel Solis, filed into the Federal Court registry an application for leave and for judicial review of the decision dated December 19, 1996, that the applicant is not eligible to make a refugee claim.
On March 6, 1997, a notice of motion and application for stay of proceedings of removal order was generated by the applicant. On March 6, 1997, Mr. Justice Gibson dismissed the application.
On July 2, 1997, I issued an Order "on consent" that leave is granted pursuant to the application for leave filed on June 2, 1997 and that the judicial review was deemed to have been commenced.
On July 7, 1997, the respondent filed a notice of motion for reconsideration on the basis that the respondent's Memorandum of Argument filed on February 24, 1997 had been overlooked by me.
In an affidavit sworn to on July 3, 1997, Mark Mason, a lawyer employed by the Department of Justice - Canada states:
| 3. In my function as counsel for the Department of Justice I was also responsible for the Respondent's file regarding the same Applicant in the matter which is the subject of this Court's file number IMM-4898-96. |
| 4. Both this matter and the matter which is the subject of Court file number IMM-4898-96 involve applications for leave and for judicial review. |
| 5. On February 24, 1997, I caused to be served and filed the Respondent's Memorandum of Argument in this matter. In the memorandum, the Respondent's position was that, "since the Applicant does not allege any error at all in the Officer's decision, no serious or arguable issue arises." A copy of the Respondent's Memorandum of Argument is attached as Exhibit "A" to this my affidavit. |
| 6. On March 25, 1997, I advised this Honourable Court that the Respondent consented to leave being granted in the matter which is the subject of Court file number IMM-4898-96. A copy of the March 25, 1997, letter is attached as Exhibit "B" to this my affidavit. |
| 7. On July 2, 1997, the Honourable Mr. Justice Teitelbaum granted leave in this matter and in the matter which is the subject of Court file number IMM-4898-96. The second paragraph of the Order in this matter states, "UPON READING the consent of the Respondent". A copy of the Order in this matter is attached as Exhibit "C" to this my affidavit. |
| 8. At no time during the proceedings in this matter did the Respondent consent to leave being granted. The Respondent's position in this matter has always been that the within application for leave and judicial review does not raise a serious or arguable issue. |
I have now reviewed the documents in the file. There is no doubt that I failed to review the submission contained in the respondent's (Minister) Memorandum of Argument. I assumed, upon seeing the consent in file IMM-4898-96 that the consent was, as well, for file IMM-9-97.
I have now read the submissions of the applicant and the respondent and find that the application for leave and judicial review of the decision of C. Marchand, dated December 20, 1996, but verbally told to the applicant on December 19, 1996, should not have been allowed.
The application for reconsideration is allowed. My Order of July 2, 1997, is set aside as made in error by my failure to consider the Memorandums of both parties hereto and by my assumptions that the consent filed by the respondent in file IMM-4898-96 also applied to IMM-9-97.
The application for leave and judicial review in file IMM-9-97 is denied.
OTTAWA, ONTARIO "Max M. Teitelbaum"
July 17, 1997. J.F.C.C.