IMM-567-97
B E T W E E N:
GEZIM BECI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
In the motion before me the applicant seeks leave to file an affidavit in reply to evidence certain allegations in the Reply. The respondent opposes leave to file the affidavit and alleges that paragraphs should be struck from the Reply. No motion is filed in this later regard.
There is no provision in the Federal Court Immigration Rules for evidence in reply. Where it has come to the attention of applicant's counsel after the Applicant's Record has been filed, that certain material was before the tribunal at the hearing which could not be mentioned in the Record, leave has been given for affidavit evidence to be filed in reply, or alternatively the time may have been extended within which to file an amended record and respondent's material as may have been found appropriate.
Here, new evidence has come to the attention of applicant's counsel which might have altered the decision of the tribunal had it been considered. The hearing before the tribunal was on the 23rd of October, 1996. The tribunal's decision was dated 17th January, 1997. The new evidence is a Response to Information Request dated 22nd January, 1997, which reports on information received by the Documentation, Information Research Branch Immigration and Refugee Board, Ottawa ("D.I.R.B."). This information was elicited in telephone interview on 17, 20 and 22 January, 1997. The information corrected information supplied by the same informant on the 26th of June, 1996.
The applicant argues that the response is a document in the possession and control of the Immigration and Refugee Board because the D.I.R.B. is an entity within the Board.
Even if the two person panel which rendered the decision is to be deemed in possession of all the information held by any part of the Board (a proposition I doubt), the information in the tendered affidavit did not come to the attention of any part of the Board until after the impugned decision had been made.
The new information might with leave be considered on an appeal. But the proceedings in this Court are not an appeal, but a judicial review. A judicial review hearing decides whether an impugned decision of a tribunal can be faulted on the basis of the facts available to the tribunal at the time the impugned decision was made. The fact that new information has been uncovered since the tribunal's decision is irrelevant to a judicial review of that decision. The motion for leave will therefore be dismissed, no motion has been submitted by the Minister to strike paragraphs 9 and 10 of the Reply, although such a request appears in the Minister's submissions. Because there is no motion, I am unable to strike those paragraphs, even if it were appropriate.
ORDER
The motion for leave to file additional evidence in reply is denied.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
May 9, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-567-97
STYLE OF CAUSE: GEZIM BECI
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
CONSIDERED AT TORONTO, ONTARIO UNDER THE PROVISION OF RULE 324.
REASONS FOR ORDER
AND ORDER BY: GILES, A.S.P.
DATED: MAY 9, 1997
SOLICITORS OF RECORD:
Ms. Catherine Smee
Barrister and Solicitor
166 Pearl Street
Suite 200
Toronto, Ontario
M5H 1L3
Solicitor for the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No. IMM-567-97
Between:
GEZIM BECI
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER & ORDER