VARINDER SINGH; BALJINDER KAUR (A.K.A. BALJINDAR KAUR); SIMRANPREET KAUR; YUVRAJ SINGH Applicants v. THE MINISTER OF CITIZENSHIP, 2022 FC 8

Date: 20220106 Docket: IMM-1175-20 Citation: 2022 FC 8 Ottawa, Ontario, January 6, 2022 PRESENT: The Honourable Madam Justice Elliott BETWEEN: VARINDER SINGH; BALJINDER KAUR (A.K.A. BALJINDAR KAUR); SIMRANPREET KAUR; YUVRAJ SINGH Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] The applicants filed a motion in writing for an Order under Rule 397(1) (

b) of the Federal Courts Rules , SOR/98-106 , seeking a reconsideration of the Court’s Judgment and Reasons on judicial review in this matter. In addition, the applicants seek an extension of time to serve and file the motion as it is well beyond the 10 days period following the making of the Order in the Judgment. [ 2 ] The Respondent took no position and filed no materials in response to the motion. [ 3 ] The extension of time is granted but, for the reasons that follow, the motion for reconsideration is dismissed, as there are no grounds supporting a reconsideration. [ 4 ] In Canada v.

MacDonald , 2021 FCA 6 , the Federal Court of Appeal held that the power in Rule 397 to reconsider orders and judgments in order to deal with any mistakes, omissions, or matters overlooked is " “much narrower than it sounds” " . Specifically, the Court " “cannot rethink the matter and reverse itself”: " para 17. [ 5 ] In Yeager v Day , 2013 FCA 258 , at para 9 the Federal Court of Appeal noted the limitations of rule 397 as being: The reconsideration power under Rule 397 is not the same as this Court’s powers on appeal under

section 52 of the Federal Courts Act, R.S.C. 1985, c. F-7 .

Instead, the reconsideration power is more limited – to correct small oversights, such as an inconsistency between the order and the reasons ( Rule 397(1) (a)), the failure of the Court to deal with something that was put to it ( Rule 397(1) (b)), and clerical mistakes, errors or omissions in the order (Rule 397(2)). [ 6 ] The Applicants believe that I failed to consider and/or address what they say are errors made by the RPD/RAD regarding (1) the population and geography of India and (2) that the RPD speculated regarding the population and size of India and (3) that I overlooked issue raised that Varinder Singh’s presence in Mumbai " “ would eventually become known ” " to the Applicant’s uncle. [ 7 ] I have reviewed my Judgment and Reasons in this matter and I am satisfied that I did not overlook or accidentally omit to consider any of the foregoing in arriving at my decision. [ 8 ] Even had I failed to consider an argument made by the Applicants or an error made by the RPD or RAD in this matter, rule 397(1) (

b) would not apply. [ 9 ] In Naboulsi v. Canada (Citizenship and Immigration) , 2020 FC 357 , Mr. Justice LeBlanc, a member of this Court at the time, specifically noted the following with respect to the relief available under rule 397(1) (b): At para 7: a motion for reconsideration does not provide an alternative method of appeal or an occasion to reargue or relitigate the matter ( Benipal v Canada (Minister of Citizenship and Immigration), 2002 FCT 1302 at para 8 ).

At para 8: the failure of the Court to deal in its reasons with a point pleaded and argued by the parties does not fall within the scope of Rule 397(1) ( b ). An argument raised by a party does not constitute a matter overlooked or omitted pursuant to the terms of Rule 397(1) (b) ( Balasingam v Canada (Minister of Employment and Immigration) , [1994] FCJ No 448 ). At para 9: a “matter”, as it is to be understood pursuant to Rule 397(1) (

b) is related to the remedies sought by the moving party. It is not related to an argument that was raised before the Court ( Lee v Canada (Minister of Citizenship and Immigration), 2003 FC 867 ; Haque v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 1141 ).

At para 10: the Applicants do not argue that I failed to deal with the remedy they asked, but that I rather failed to address a point they argued. This does not fall within the scope of Rule 397(1) (b ). [ 10 ] While I understand that the Applicants would have preferred a different outcome in their judicial review, the judgment rendered explains in detail why they did not succeed and the above-noted jurisprudence sets out the manner in which rule 397(1) (

b) is to be applied. [ 11 ] The fatal error the Applicants made, which was incapable of correction on appeal, was to make no submissions to the RAD regarding the second prong of the internal flight alternative test.

The RAD is not required to consider potential errors that an applicant does not raise: see Kanawati v Canada (Citizenship and Immigration) , 2020 FC 12 , at para 23 and cases cited therein. [ 12 ] Similarly, subject to certain limited exceptions, none of which apply here, the jurisprudence prohibits the Applicants from raising on judicial review arguments not put before the RAD as the original decision-maker: Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency 2012 FCA 22 at para 20 . [ 13 ] For all the foregoing reasons, this motion is dismissed.

ORDER IN IMM-1175-20 THIS COURT ORDERS that: 1 . The motion is dismissed. "E. Susan Elliott" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1175-20 STYLE OF CAUSE: VARINDER SINGH; BALJINDER KAUR (A.K.A. BALJINDAR KAUR); SIMRANPREET KAUR; YUVRAJ SINGH v THE MINISTER OF CITIZENSHIP AND IMMIGRATION MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES ORDER AND REASONS ELLIOTT J. DATED: January 6, 2022 WRITTEN REPRESENTATIONS BY: Tariq Wasey Khan For The Applicants SOLICITORS OF RECORD : Wasey Law Barristers and Solicitors Brampton, Ontario For The Applicants