Date: 20000817
Docket: IMM-5732-99
BETWEEN:
OMAR BIKO McFARLANE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion pursuant to Rules 369, 397 and 399 of the Federal Court Rules, 1998 and Rules 9 and 10 of the Federal Court Immigration Rules.
[2] The motion is for an order extending the time to reconsider the judgment of this Court dated June 7, 2000 dismissing the application for leave due to the failure of the applicant to file an application record.
[3] This is a motion also for an order granting the motion to reconsider the judgment dated June 7, 2000 dismissing the application for leave due to the failure of the applicant to file an application record.
[4] And finally, this is a motion for an order reconsidering the judgment of this Court and allowing the applicant an extension of two days to serve and file his application record.
[5] My understanding is that there had been a delay because the Board was unable to provide written reasons to the Court since the member responsible for writing the reasons was on a medical leave.
[6] Nevertheless, the written reasons were received by counsel for the applicant, Mr. L. Morley, on May 9, 2000.
[7] Pursuant to Rules 9 and 10 of the Federal Court Immigration Rules, an application record had to be filed within 30 days of that date.
[8] As was pointed out by counsel for the respondent, the applicant has not explained why it took until May 23, 2000 for the applicant himself to receive the tribunal record. The Court has been informed that there had been a change of solicitor and it took time to instruct new counsel.
[9] The applicant has the right to change a solicitor, but the delays that are imposed by the law and regulations still apply.
[10] Any mistake which occurred, if any, appears to be due to the applicant"s own fault and I do not see how Rules 399 or 397 could apply. Rule 399(2) provides that an order to vary or set aside another order may be issued based on information that arose or was discovered after the original order. In the present instance, all of the relevant information was available to the applicant prior to June 7, 2000.
[11] Rule 397 allows the Court to reconsider an order if it does not accord with the reasons given or a matter that should have been dealt with has been overlooked or accidentally omitted. In this instance, the application was dismissed because of the failure to file an application record which is admitted by the applicant. I do not see any suggestion by the applicant that the Court" decision is in any way inconsistent with the material before the Court at the time it rendered its decision. Therefore, nothing was overlooked or omitted and Rule 397 does not apply in this instance.
[12] The applicant failed to provide any evidence to suggest that the application stands a reasonable chance of being successful. I have carefully reviewed the written representations and the affidavits and all other documents and I have not seen any arguments showing that this application could be successful.
[13] For these reasons, the applicant"s motion is dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
August 17, 2000