2023 FC, 2023 FC 1609

Date: 20231130 Docket: IMM-12631-22 Citation: 2023 FC 1609 Montréal, Quebec, November 30, 2023 PRESENT: Mr. Justice Sébastien Grammond BETWEEN: A.B. C.D. Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] The applicants were denied leave to bring an application for judicial review of a decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee Board denying their claim for asylum. They are now moving to reopen the application for leave pursuant to rule 399 of the Federal Courts Rules , SOR/98-106 .

I am dismissing their motion. [ 2 ] The applicants are citizens of India. They claimed asylum based on fear of harm from the family of a woman with whom A.B.’s brother had a relationship, as well as the Punjab police. The RAD dismissed their claim because they had an internal flight alternative within India. They brought an application for leave and judicial review of the RAD’s decision.

On August 22, 2023, I denied leave. [ 3 ] The male applicant now claims that, when preparing for the hearing before the Refugee Protection Division [RPD], he told the immigration consultant who represented them that he became involved in pro-Khalistan activities in Canada. He states that the consultant told him that it was not possible to raise this new ground at that stage and that he should stick to his narrative. Because of this, he argues that the consultant was incompetent and that the leave application should be reopened to allow him to raise this new ground.

He says that he only became aware of this issue when he was interviewed by new counsel for the purposes of a motion to stay his removal from Canada. [ 4 ] In its relevant part, rule 399 reads as follows: " 399. . . . " " 399. […] " "

(2) On motion, the Court may set aside or vary an order " "

(2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l’un ou l’autre des cas suivants : " " (

a) by reason of a matter that arose or was discovered subsequent to the making of the order; . . . " "

a) des faits nouveaux sont survenus ou ont été découverts après que l’ordonnance a été rendue; […] " " " [ 5 ] In applying rule 399 , regard must be had to the principle that judgments are final and that grounds for setting aside judgments should be narrowly construed.

In Ayangma v Canada , 2003 FCA 382 at paragraph 3 , the Federal Court of Appeal noted that for the Court to grant a motion pursuant to rule 399(2)(a), among other things, the alleged new matter " “must not be one which was discoverable prior to the making of the order by the exercise of due diligence.” " This requirement is not satisfied in this case. [ 6 ] The applicants were represented by a lawyer for their application for leave and judicial review. They spoke with him on several occasions.

Had they exercised due diligence, they could have raised the issue of the male applicant’s pro-Khalistan activities in Canada. Their lawyer would also be expected to ask them about the grounds for their fear of returning to India.

I note that no allegations of incompetence are made against the lawyer. [ 7 ] Moreover, the RPD’s decision explicitly assessed the applicants’ profile as Sikhs and noted that " “unless they vocally propagate a separate Sikh state, Sikhs would generally be safe outside Punjab.” " This should have alerted the applicants to the fact that their alleged pro-Khalistan activities could be relevant to their claim for refugee status, if they rose to the level of " “vocal propagation.” " [ 8 ] The applicants’ motion to reopen the application will therefore be dismissed. [ 9 ] I am also of the view that the style of cause should be anonymized given the nature of the allegations made by the applicants.

At the hearing, both parties were in agreement with this measure. ORDER in IMM-12631-22 THIS COURT ORDERS that

1. The motion to reopen the application for leave and judicial review is dismissed. 2. The style of cause is anonymized and the applicants will be referred to as " “A.B.” " and " “C.D.” " "Sébastien Grammond" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-12631-22 STYLE OF CAUSE: A.B. and C.D. v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: BY VIDEOCONFERENCE DATE OF HEARING: November 28, 2023 ORDER AND REASONS: GRAMMOND J. DATED: November 30, 2023 APPEARANCES : Meryam Haddad For The Applicants Daniel Latulippe For The Respondent SOLICITORS OF RECORD : Haddad Legal Justice inc.

Montréal, Quebec For The Applicants Attorney General of Canada Ottawa, Ontario For The Respondent