Date: 19990712
Docket: IMM-2171-99
BETWEEN:
RAUL HOLGUIN SERNA
ISABEL CHRISTINA TANGARIFE VALENCIA
GICELA ANDREA HOLGUIN TANGARIFE
ALEJANDRA LICET HOLGUIN TANGARIFE
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.
| [1] The applicants, who are not represented by counsel, have brought a motion in writing seeking leave and an order extending the time within which to file the applicants" record in support of their application for leave and for judicial review. The motion is opposed by the respondent. |
| [2] In a decision dated March 23, 1999 and received by the applicants on March 29, 1999, the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Refugee Division") concluded that the applicants were not Convention refugees. The application for leave itself was filed thirteen days outside the fifteen day period provided for under section 82.1(3) of the Immigration Act, 1976-77, c. 52. In their application, the applicants requested an extension of time to file their application for leave based on their "inability to afford legal counsel". This request for an extension of time remains outstanding as it will be dealt with at the same time as the application for leave, in accordance with Rule 6(2) of the Federal Court Immigration Rules, 1993. |
| [3] Based on the affidavit of Claudia Carrera filed in support of the present motion, the applicants "explored the possibility" of obtaining legal counsel in order to file a record following the late filing of the application, but were unable to afford legal counsel or to bear the costs of preparing an affidavit. |
| [4] An extension of time may be granted if the entire delay is satisfactorily accounted for and if the application discloses a fairly arguable case within the jurisdiction of the Court under s. 18.1 of Federal Court Act. Moreover, the applicants must show that the delay was "beyond the control of counsel or the applicant, for example, illness or some other unexpected or unanticipated event."1 |
| [5] I agree with counsel for the respondent that financial hardship should not be viewed as an "unexpected or unanticipated event" since the same explanation was offered by the applicants for the late filing of the application for leave one and one half months earlier. Nor is there an explanation provided as to why the applicants did not seek, at an earlier date, the assistance of the Church officials who had helped prepare the application for leave and who eventually helped prepare the applicants" record. |
| [6] Claudia Carrera, at paragraph 4 and 5 of her affidavit, seeks to discredit the decision of the Refugee Division by alleging, inter alia, a predisposition by the panel members against the applicants and offering her opinion regarding the interpretation placed by them on the applicants" testimony. There is no indication that the affiant was present at the hearing before the Refugee Division. Nor is the source of the information stated. These two paragraphs are obviously improper as the affiant merely speculates about the evidence before the Refugee Division, makes legal argument and draws conclusions. As such, these paragraphs have been given little weight. |
| [7] On the question as to whether an arguable case has been made out by the applicants, the respondent filed a copy of the Refugee Division"s decision. I agree with counsel for the respondent that the applicants have failed to show through proper evidence that there is an arguable case that the conclusions of the Refugee Division were in error. |
| [8] I recognize that by dismissing this motion, the applicants" application for leave will be determined without the benefit of their record. I have taken into account the obvious prejudice which will be suffered by the applicants, however they have failed to establish before me that there is a reasonable explanation for the delay in filing their application record and that they have an arguable case. |
| [9] The motion is dismissed. |
"Roger R. Lafrenière"
Prothonotary
Toronto, Ontario
July 12, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-2171-99 |
| STYLE OF CAUSE: RAUL HOLGUIN SERNA |
| ISABEL CHRISTINA TANGARIFE VALENCIA |
| GICELA ANDREA HOLGUIN TANGARIFE |
| ALEJANDRA LICET HOLGUIN TANGARIFE |
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
PURSUANT TO RULE 369
| REASONS FOR ORDER AND ORDER BY: LAFRENIÈRE P. |
DATED: MONDAY, JULY 12, 1999
| WRITTEN REPRESENTATIONS BY: Mr. Raul Holguin Serna et al. |
| The Applicants on Their Own Behalf |
| Ms. Cheryl Mitchell |
| For the Respondent |
SOLICITORS OF RECORD: Raul Hoguin Serna et al.
| 350 The East Mall |
| #810 |
| Etobicoke, Ontario |
| M9B 3Z7 |
| The Applicants on Their Own Behalf |
Morris Rosenberg
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 19990712
Docket: IMM-2171-99
Between:
| RAUL HOLGUIN SERNA |
| ISABEL CHRISTINA TANGARIFE VALENCIA |
| GICELA ANDREA HOLGUIN TANGARIFE |
| ALEJANDRA LICET HOLGUIN TANGARIFE |
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |
| AND ORDER |
__________________
1 Chin v. Canada (M.E.I.), [1993] F.C.J. No. 1033 (T.D.) at p. 3; Moreno v. Canada (M.C.I.),[1996] F.C. J. No. 218 (Prot.)