Date: 19991005
Docket: IMM-2782-99
BETWEEN:
YASER EL SAYED DESOUKY
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] This is a motion made by the applicant pursuant to Rule 369 of the Federal Court Rules for an Order allowing the applicant to file an Application Record.
[2] The grounds for the motion, as stated in the Notice of Motion, are:
| (a) The applicant"s application for leave was dismissed for failure of the applicant to file an application record; |
| (b) The Order of the Honourable Teitelbaum J. is dated September 1, 1999. The Certificate of Order from the Federal Court is dated Friday, September 10, 1999. The Certificate of Order and the Order of the Honourable Teitelbaum J. were mailed out to the Solicitor for the Applicant on Monday, September 13, 1999 by Registered Mail. It takes at least two days for registered mail sent out from an address in Ottawa to another address in Ottawa to be received. The Applicant"s Motion was served on the Respondent on Thursday, September 23rd , 1999 and filed with the Federal Court on the same date, which is within ten (10) days of the date when the Honourable Teitelbaum"s Order and Certificate of Order were mailed out to the Applicant"s solicitor from the Federal Court. |
| (c) The applicant"s counsel is new in practice and particularly in the practice of immigration law. The applicant"s counsel was under the false impression that the applicant"s record was to be filed after the Federal Court (Trial Division) made a positive decision granting leave to the applicant for appeal and judicial review. |
| (d) The circumstances of this case are such that they warrant the exercise of compassion. |
[3] The applicant fails to mention in the Notice of the Rules of the Federal Court of Canada that are applicable for the granting of the present Notice of Motion nor what section or regulation of the Immigration Act that is applicable.
FACTS
[4] On June 18, 1999, the applicant filed into the Federal Court Registry an application for leave and for judicial review of a decision of an immigration officer dated May 10, 1999 wherein the applicant"s request for processing from within Canada for landing on humanitarian and compassionate grounds was refused.
[5] An application for leave and for judicial review is made pursuant to section 82.1 of the Immigration Act.
82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court " Trial Division.
82.1(3) Application for leave
(3) An application under this section for leave to commence an application for judicial review shall be filed with the Federal Court " Trial Division and served within fifteen days after the day on which the applicant is notified of the decision or order or becomes aware of the other matter.
82.1(5) Extension
(5) A judge of the Federal Court " Trial Division may, for special reasons, allow an extended time for filing and serving an application under this section for leave to commence an application for judicial review.
82.1 (1) La présentation d'une demande de contrôle judiciaire aux termes de la Loi sur la Cour fédérale ne peut, pour ce qui est des décisions ou ordonnances rendues, des mesures prises ou de toute question soulevée dans le cadre de la présente loi ou de ses textes d'application " règlements ou règles " se faire qu'avec l'autorisation d'un juge de la Section de première instance de la Cour fédérale.
82.1(3) Demande d'autorisation
(3) La demande d'autorisation doit être déposée devant la Section de première instance de la Cour fédérale et signifiée à l'autre partie dans les quinze jours suivant soit la date où le demandeur est avisé de la décision, de l'ordonnance ou de la mesure en cause, soit celle où il a eu connaissance de l'affaire en question.
82.1(5) Prorogation des délais
(5) Tout juge de la Section de première instance de la Cour fédérale peut, pour des raisons spéciales, proroger le délai fixé au paragraphe (3).
[6] As is apparent from the application for leave, the applicant was out of time to file such an application. The applicant, in his application for leave requests an extension of time under subsection 82.1(15) of the Immigration Act for the reasons given in the application for leave.
[7] Pursuant to Rule 10 of the Federal Court Immigration Rules, the applicant, within 30 days of filing his application for leave and judicial review, must "perfect" his application by serving and filing his Application Record.
[8] The applicant failed to "perfect" his application for leave. The applicant failed, within the legal delays, to serve and file an Application Record pursuant to Regulation 10 of the Federal Court Immigration Rules .
[9] On September 1, 1999, I dismissed the Application for leave due to the failure of the applicant to file the required Application Record.
[10] The applicant now makes what I believe is an application for extension of time to file an Application Record. As I have stated, the applicant does not state pursuant to what rule or regulation this application is being made.
DISCUSSION
[11] In the affidavit of Asira Shukuru sworn on September 20, 1999, it is stated in paragraphs 2 to 5:
| 2. Ms. Damulira is new in practice of law and particularly, in the area of immigration law. She was called to the Bar of Ontario in February, 1998. She started practising law in June of 1998. She is a sole practitioner. |
| 3. Ms Damulira informed me, and I believe it to be true that she filed an Application for leave and for Judicial Review, on behalf of the Applicant. She also informed me that the Application had been dismissed for failure of the Applicant to file an Application Record. |
| 4. Ms. Damulira consulted with me when she received the Order dismissing the Application. She informed me, and I believe it to be true, that she was under the false impression that the Applicant"s Record was supposed to be submitted after the Federal Court, Trial Division came back with a positive decision, granting the Applicant leave to proceed with the appeal and judicial review. |
| 5. Ms. Damulira also informed me, and I believe it to be true that the circumstances of this case warrant compassion. She informed me that the Applicant"s reasons for applying for landing from within Canada are in connection with his sister. The Applicant"s sister"s health is very grieve. She has terminal cancer that has spread to her bones, liver, and brain. The Applicant"s sister has four young children. The Applicant applied for landing from within Canada so he could be here to continue to look after his nieces and nephews during the difficult time that his sister and the children are going through, and even after the Applicant"s sister passes on. |
[12] It is apparent from reading the above, that the only reason given for not having filed the Application Record within the legal delays is that the applicant"s lawyer "is new in the practice of law and particularly in the area of immigration law".
[13] Unfortunately for the applicant, the lawyer"s inexperience or lack of knowledge cannot be considered as a reason to set aside a final judgment of the Court.
[14] In the case of Guzman and The Minister of Citizenship and Immigration, IMM-5874-98, September 3, 1999, unreported (F.C.T.D.) I discuss the exact same issue as presently before me. Some of the facts may be slightly different, but the issue was on all fours with the present issue.
[15] On pages 4 and 5 of the Guzman case, in listing the facts, I state:
| [ 9] On or about November 13, 1998, applicant"s then counsel filed, on behalf of the applicant, in the Federal Court of Canada, Trial Division, an application for leave and judicial review "concerning the danger certificate issued against the applicant". |
| [10] The applicant sought an extension of time within which to file the application for leave as a result of the Minister"s opinion not having been sent to the applicant"s counsel "in a timely fashion". |
| [11] Due to a misunderstanding of the Federal Court procedure and, what appears to be a lack of knowledge of the Federal Court Rules, the applicant"s then counsel failed to perfect, within the legal delays, the application for leave by failing to serve and file the applicant"s Application Record. |
| [12] The failure to serve and file an Application Record within the legal delays caused the application for leave and for judicial review to be dismissed by an Order of Madam Justice McGillis dated February 8, 1999. |
| [13] The applicant now brings the present application to set aside or reverse the Order of Madam Justice McGillis of February 8, 1999 so as to permit the applicant to file a new application for leave and judicial review without requesting an extension of time to do so. |
[16] Under the heading Analysis, I state in paragraphs 24, 25, 29, 30 and 31:
| [24] In considering the jurisdiction of the Court to allow this application, I have thoroughly reviewed the jurisprudence on the allowable grounds for granting leave to reconsider a final order and have examined each of the Federal Court Rules which might allow such an application. The Rules and the case law are clear. There is no authority to allow me to review a final decision of the Trial Division in the circumstances of the present case. |
| [25] The Federal Court of Appeal addressed this issue in Metodieva v. M.E.I. (1991), 132 N.R.(F.C.A.) which concerned an application for appeal which was dismissed and a new application on the same matter. In the decision, Justice Décary states at page 43: |
| I think it is important to point out that the Court does not have jurisdiction to decide the matter again, and that this is so whatever the reason for dismissing the first application for leave...The fact that an application was dismissed for a procedural defect does not in any way change the fact that the order made is final and not subject to be reconsidered, apart from the allowable causes. |
| [29] I believe that one of the applicant"s strongest submissions deals with the interpretation that should be given to Rule 399(2)(a) of the Federal Court Rules . |
| [30] The applicant submits that the fact that the applicant"s previous counsel was ignorant of the Federal Court Rules only became apparent or was discovered after Madam Justice McGillis issued her Order. |
| [31] There is no doubt that the evidence placed before me indicates that the applicants previous counsel was ignorant of the Federal Court Rules as they are applicable to the present case. |
[17] I also state in paragraph 40 of the Guzman decision that Rule 399(2) was not applicable.
| [40] I am satisfied that Rule 399(2) was not meant to apply to vary or set aside a final judgment of the Court because one of the parties to the final judgment had retained the services of a lawyer who, it is subsequently found out, was not properly versed in the law or the rules of a Court. |
[18] Rule 399(2) of the Federal Court Rules states:
399(2) Setting Aside or variance -
On motion, the Court may set aside or vary an order
(a) by reason of a matter that arose or was discovered subsequent to the making of the order; or
(b) where the order was obtained by fraud.
399(2) Annulation - La Cour peut, sur requête, annuler ou modifier une ordonnance dans l"un ou l"autre des cas suivants:
(a) des faits nouveaux sont survenus ou ont été découverts après que l"ordonnance a été rendue;
(b) l"ordonnance a été obtenue par fraude.
[19] Unfortunately for the applicant, I cannot vary or set aside a final judgment of the Federal Court of Canada, Trial Division, unless I am given evidence pursuant to Rule 399(2). No such evidence was given to me.
[20] In the case of Guzman, I certified the following question:
| 1. Can the Court set aside an Order pursuant to Rule 399(2) of the Federal Court Rules which was granted solely due to counsel"s failure to understand and comply with procedural requirements? |
[21] Counsel for the applicant shall have 7 days of today"s date to forward to the Court a question to be certified if that be the wish of the applicant. A copy of the question shall be forwarded to the respondent who shall then have 7 days to submit a question and/or make comments.
[22] The application is denied.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
October 5, 1999