Date: 19990909
Docket: IMM-1306-99
BETWEEN:
ZOYNAL AHMED
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SHARLOW J.:
[1] The applicant is a failed refugee claimant. The negative decision of the Convention Refugee Claims Division (CRDD) was communicated to the applicant on March 16, 1999. An application for judicial review of that decision cannot be made without leave. The required application for leave and judicial review was filed on March 16, 1999.
[2] The notice of application does not state any specific basis for the judicial review. It merely recites the general principles for judicial review, giving no particulars of the errors alleged to have been made by the CRDD.
[3] Pursuant to Rule 10 of the Immigration Rules the application was required to be perfected by the filing of the applicant's record on or before April 15, 1999. Due to an error in the office of counsel for the applicant, the record was submitted for filing one day late. The applicant"s record was refused by the registry and returned to counsel.
[4] On June 15, 1999, counsel for the applicant filed a motion for an extension of time to file the application record. That application was refused by a prothonotary by order dated July 7, 1999. There were several grounds for the refusal, one being that the applicant failed to establish the existence of an arguable case. The only material dealing with this point was in the notice of motion itself, which said:
| The Solicitor finds that the applicant Zoynal Ahmed has a serious and arguable issue to be raised in this Judicial Review based on the Applicant's Record. |
[5] This statement has no discernible meaning because the court file does not contain a copy of the applicant's record. No material was provided to support this statement.
[6] The prothonotary denied the motion for an extension of time, but granted the applicant leave to re-apply on proper affidavit material and written representations no later than July 19, 1999.
[7] A second notice of motion for an extension of time was filed by the applicant on July 19, 1999. Most of the deficiencies in the previous motion were cured. However, on the question of the existence of an arguable case, the sentence quoted above was simply restated. No additional information was submitted regarding the merits of the application for judicial review. There was no material before the prothonotary with respect to this second motion on which it would have been possible to determine the existence of an arguable case.
[8] The second motion was dismissed by a prothonotary by order dated August 11, 1999. The basis for the decision was that no arguable case had been disclosed.
[9] By notice of motion filed on August 16, 1999, the applicant has appealed the prothonotary's order of August 11, 1999, relying on Rule 51(1).
[10] An order of a prothonotary refusing an extension of time is discretionary. On a review of a prothonotary's decision, a motions judge may exercise the discretion de novo if the prothonotary's exercise of the discretion was based on a wrong principle or misapprehension of the facts, or raises questions vital to the final issue: Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (F.C.A).
[11] In this case, the refusal of the prothonotary to extend the time limit effectively put an end to the applicant's claim. In that sense, the questions raised by the second motion for an extension of time were vital to the final issue. That basis is sufficient to permit a fresh consideration of the second motion for an extension of time.
[12] I have reconsidered the material before the prothonotary on the second motion. I am compelled to conclude, as he did, that no arguable case is disclosed in that material.
[13] In the written argument presented with the present notice of motion, counsel for the applicant has explained for the first time the basis for the requested judicial review. It appears that the aspects of the CRDD decision that the applicant wishes to challenge are the following:
| (a) whether the fact that the applicant was only a member and not a leader of a particular political party is a proper basis for disallowing a refugee claim, and |
| (b) whether the CRDD was correct in saying that there was no evidence of an organized plan by certain government officials to kill and persecute members of that political party. |
[14] These submissions are not supported by any affidavit material. The court file still contains no copy of the CRDD decision, no copy of any of the material that was before the CRDD, nothing about the evidence which was given orally to the CRDD, and nothing about the submissions that were made to the CRDD.
[15] Even if there was an affidavit supporting the applicant's argument that there is an arguable case, it is far from clear that I would be able to consider it in the context of this appeal. In James River Corp. of Virginia v. Hallmark Cards Inc. (1997), 126 F.T.R. 1 (T.D.), Reed J. held that in an appeal from a decision of a prothonotary, the only evidence that can be taken into account is the evidence that was before the prothonotary.
[16] In James River, supra, it was suggested that it might be possible in certain circumstances to rely on Rule 351 to adduce new evidence in an appeal of a prothonotary's order. No such application has been made in this case. If there had been such an application, counsel for the applicant would have had to establish that his failure to put the new evidence before the prothonotary was caused by something other than a lack of diligence on his part. No attempt has been made to explain counsel's failure to adduce such evidence in the motion before the prothonotary.
[17] The appeal of the order of the prothonotary is dismissed.
"Karen R. Sharlow"
JUDGE
TORONTO, ONTARIO
September 9, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-1306-99 |
| STYLE OF CAUSE: ZOYNAL AHMED |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369.
| REASONS FOR ORDER AND ORDER BY: SHARLOW J. |
| DATED: THURSDAY, SEPTEMBER 9, 1999 |
WRITTEN SUBMISSIONS BY: Mr. Mark Sultan
For the Applicant
Ms. Neeta Logsetty
For the Respondent
SOLICITORS OF RECORD: Mark Sultan
Barrister & Solicitor
4891 Dundas Street West
Suite No. 1
Toronto, Ontario
M9A 1B2
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:19990909
Docket: IMM-1306-99
Between:
| ZOYNAL AHMED |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |
AND ORDER