Date: 20000620
Docket: IMM-6091-99
BETWEEN:
GNANAKRISHNAN KUMARASAMY
THULASI GNANAKRISHANAN
NAVIN GNANAKRISHNAN
THEBAN GNANAKRISHNAN
Applicants
-and-
THE MINISTER OF CITIZENSHIP
AN IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES A.S.P.
[1] The motion before me seeks to strike certain paragraphs of an affidavit filed in support of the Applicant which paragraphs deal with the situation of the Principal Applicant"s wife and family who have been deported to Sri Lanka.
[2] The situation of the wife and family is a situation which prevailed at the time of the affidavit and after the impugned tribunal hearing. The evidence is new. Somewhat different considerations apply to the admissibility of evidence of a judicial review and the re-opening of a hearing because of the discovery of fresh evidence. When it is sought to re-open a proceeding, it is very relevant whether the fresh evidence could have been before the original tribunal had due diligence been employed. In the case of judicial review, the Court is seeking to discover whether on the evidence before it, the tribunal made a reviewable error. It is totally irrelevant if additional evidence could have been before the tribunal and evidence which came into existence after the tribunal hearing is of course irrelevant.
[3] The fact is, the evidence was not before the tribunal and the tribunal cannot be falted for not considering or not giving sufficient or any weight to the evidence which was not before it. The impugned paragraphs of the Applicant"s affidavit seek to introduce evidence of events which happened after the tribunal made its decision. Such evidence cannot be relevant to the review and should be struck out.
ORDER
[4] Paragraphs 10 to 20 both inclusive of the affidavit of Gnanakrishnan Kumarasamy are hereby struck out.
"Peter A. K. Giles"
A.S.P.
Toronto, Ontario
June 20, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-6091-99 |
| STYLE OF CAUSE: GNANAKRISHNAN KUMARASAMY |
THULASI GNANAKRISHANAN
NAVIN GNANAKRISHNAN
THEBAN GNANAKRISHNAN
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
| AND ORDER BY: GILES A.S.P. |
DATED: TUESDAY, JUNE 20, 2000
| WRITTEN SUBMISSIONS BY: Mr. Kumar S. Sriskanda |
| For the Applicant |
| Ms. Claire A. H. le Riche |
| For the Respondent |
| SOLICITORS OF RECORD: Kumar S. Sriskanda |
Barrister & Solicitor
3852 Finch Avenue East
Suite 209
Scarborough, Ontario
M1T 3T9
| For the Applicant |
| Morris Rosenberg |
Deputy Attorney General of Canada
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20000620
Docket: IMM-6091-99
Between:
| GNANAKRISHNAN KUMARASAMY |
THULASI GNANAKRISHANAN
NAVIN GNANAKRISHNAN
THEBAN GNANAKRISHNAN
Applicants
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER