DAUD MUKHAMMAD ADALYATKHAN MUKHAMMAD SAMIR MUKHAMMAD RIANA MUKHAMMAD DIANA MUKHAMMAD Applicants v. THE MINISTER OF CITIZENSHIP, 2023 FC 824

Date: 20230609 Docket: IMM-1405-18 Citation: 2023 FC 824 Ottawa, Ontario, June 9, 2023 PRESENT: The Honourable Madam Justice Elliott BETWEEN: DAUD MUKHAMMAD ADALYATKHAN MUKHAMMAD SAMIR MUKHAMMAD RIANA MUKHAMMAD DIANA MUKHAMMAD Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] At the request of the Applicants, I have agreed to reconsider or clarify my Judgment and Reasons (Decision) on judicial review of this matter.

I do so in the interest of justice even though the request was made informally by way of letter and it was tendered well in excess of the 10-day period after the Decision was issued. I. Principles of and relief available on Reconsideration [ 2 ] In Canada v MacDonald , 2021 FCA 6 , the Federal Court of Appeal held that the power in Rule 397 of the Federal Courts Rules 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. [ 3 ] Paragraph 397(1)(

b) of the Federal Courts Rules provides that the Court may reconsider its order if " “a matter that should have been dealt with has been overlooked or accidentally omitted” " . [ 4 ] Mr. Justice Martineau helpfully summarized the details of this test in Sanusi v Canada (Minister of Citizenship and Immigration) , 2020 FC 1086 , at paragraph 6 , as follows: [6] The test to determine whether a matter that has been accidentally overlooked warrants reconsideration by the Court is a strict one. The jurisprudence clearly establishes that Rule 397 is not intended to be used as a method of appeal.

Rather, the issue is “whether there was some matter the Court overlooked in reaching its decision and if so determine if the overlooked matter changes its decision” ( Cedeno v Canada (Minister of Citizenship & Immigration) , 2000 FC 1086 at para; Alsamarraie v Canada (Minister of Citizenship and Immigration) , 2003 FCT 755 at para 6 ). [ 5 ] In Naboulsi v Canada (Minister of Citizenship and Immigration), 2020 FC 357 , [ Naboulsi ] Mr.

Justice LeBlanc, a member of this Court at the time, observed at paragraph 7 that the relief available in a motion for reconsideration under Rule 397 " “does not provide an alternative method of appeal or an occasion to reargue or relitigate the matter” " . [ 6 ] At paragraph 8 of Naboulsi, Justice LeBlanc noted, citing Balasingam v Canada (Minister of Employment and Immigration) , [1994] FCJ No 448 , that " “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).” " [ 7 ] At paragraphs 9 and 10 of Naboulsi, Justice LeBlanc noted: [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 ). [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 ). II. Matters in Issue [ 8 ] The Applicants take issue with three findings in the Decision. I will address each in turn. A. My treatment of the Respondent’s Concession with respect to the Board’s

interpretation of the letter outlining the children’s circumstances. [ 9 ] The Applicants state that I completely ignored the Respondent’s concession that there was no contradiction in the Applicant’s evidence and that the RPD finding was unreasonable on this point. They say the result is that the Decision does not accord with the evidence, and the concession by the Respondent went to the heart of the matter thereby providing a reason to allow the judicial review. [ 10 ] The Respondent does not agree with the Applicant’s characterization of the conceded finding as being at the heart of the case.

It was simply one point among many of equal value and importance. [ 11 ] The Respondent adds that " “there was no requirement for the Court to make any particular note of the concession as it was not especially consequential in the grand scheme of the decision being reviewed.” " [ 12 ] At paragraph 67 of the Decision I stated: [67] The RPD reviewed several other pieces of evidence including various letters of support and letters describing the children’s circumstances.

It noted more contradictions between the PA’s written description of the children’s circumstances and his testimony . [emphasis added]. [ 13 ] At paragraph 69 of the Decision I explained why I found the RPD conclusion on this matter to be reasonable: [69] Once again, I am persuaded that the RPD came to a reasonable conclusion on the evidence in the record.

They outlined their concerns, questioned the Applicants during the hearing, took the submissions of the Applicants into account and thoroughly explained how and why they arrived at the determinations they did. [ 14 ] Although I did not specifically mention the Respondent’s concession, it does not go to the heart of the matter, particularly given the numerous credibility findings the RPD reasonably made. [ 15 ] The Applicants also state that the improper credibility findings of the RPD were used to improperly impugn the Applicants’ credibility and to discount the IFA. [ 16 ] In effect, the Applicants disagree with the weight the RPD gave to the evidence. [ 17 ] As stated in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [ Vavilov ] at paragraph 125 : It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings.

The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”. [ 18 ] Having reviewed this matter again, I remain satisfied that the RPD was owed deference on this point given the many reasonable credibility findings they made over a 40 page decision, and taking into account the teachings of Vavilov . B.

My treatment of the extortion money paid by the Applicants [ 19 ] The Applicants submit that the RPD misstated the testimony of the Principal Applicant concerning monies paid due to extortion demands. [ 20 ] They submit it was a substantive error that was used to impugn their credibility and to determine that they never paid any extortion money. [ 21 ] However, the Applicants did not address the second part of the finding by the RPD which was that the Applicant failed to mention in his testimony the monthly payments of $500.00.

In oral submissions, Applicant’s counsel at the time merely stated, " “he didn’t mention it because he wasn’t asked” " . However, the Member very clearly and repeatedly asked about the sum of the monthly payments. [ 22 ] The Applicant’s

interpretation is that he didn’t mention it because he wasn’t asked. [ 23 ] The Board’s

interpretation is that he didn’t mention it because he never paid it. [ 24 ] On a reasonableness assessment, there may be more than one

interpretation of the evidence. [ 25 ] The Applicants appear to be saying I erred for not choosing their version. Once again, I refer to Vavilov’s instruction to defer to the factual findings of the decision maker which I do as there were no exceptional circumstances and the RPD heard and saw the testimony of the Principal Applicant. C. My treatment of where the PA lived and the information in the POE form [ 26 ] The RPD found that the PA said he had lived in Shymkent for about one and one-half years but that was not shown on his

Schedule A form. His explanation when asked to explain that anomaly was that the address he had in Shymkent was both his official address and, he was not living in an apartment. He was living at his place of employment in cabin-like accommodation. [ 27 ] The Applicants submit that the POE forms were filled out by the CBSA Officers and they made errors. In addition, the completed forms were not translated to the Applicants. [ 28 ] The Applicants submit this fact should have been addressed in the Decision, given the force of it.

[ 29 ] The Respondent notes that " “just as the law holds for decisions being reviewed by the Court, one must presume that all the evidence on the record was taken into account unless it can be clearly demonstrated otherwise.” " [ 30 ] The RPD decision was 40 pages in which it addressed a myriad of credibility concerns. [ 31 ] It is not realistic to expect the Court to address each and every such concern. [ 32 ] While there were one or two RPD findings made in error, a more than sufficient basis remained to support the RPD decision to which I must defer and find the decision to be reasonable. III.

Proposed Certified Questions [ 33 ] The Applicant proposed three questions for certification. However, none of them meet the test for certification. They do not transcend the interests of the immediate parties to the litigation and they are not determinative of the case. This matter was fact specific. [ 34 ] The Applicant’s questions all raise the issue of whether the Court can deal with an issue already conceded by the Respondent.

As set out in this Order and Reasons, the Respondent conceded that one or two points made by the RPD did not stand up to scrutiny but, overall, the RPD made numerous findings and the overwhelming majority of those findings were reasonable. [ 35 ] For these reasons there is no serious question of general importance to be certified. IV. Conclusion [ 36 ] Even had I failed to consider an argument made by the Applicants or an error made by the RPD in this matter, rule 397(1)(

b) would not apply as I stated earlier: [ 37 ] At paragraph 8 of Naboulsi, Justice LeBlanc noted, citing Balasingam v Canada (Minister of Employment and Immigration) , [1994] FCJ No 448 , that " “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).” " [ 38 ] At paragraph 9 of Naboulsi : 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 ). [ 39 ] The Applicants have not met the test for reconsideration as the Order made in the Decision accords with the reasons given for it and there is no matter that should have been dealt with that was overlooked or accidentally omitted. [ 40 ] The Respondent notes that the Applicants also do not meet the test for variance or setting aside as there is no matter that arose or was discovered subsequent to the making of the Order and the order was not obtained by fraud. [ 41 ] For all the foregoing reasons, this motion is dismissed.

ORDER IN IMM-1405-18 THIS COURT ORDERS that : 1 . The motion is dismissed. 2 . There is no serious question of general importance to certify. "E. Susan Elliott" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1405-18 STYLE OF CAUSE: DAUD MUKHAMMAD, ADALYATKHAN MUKHAMMAD, SAMIR MUKHAMMAD, RIANA MUKHAMMAD, DIANA MUKHAMMAD v THE MINISTER OF CITIZENSHIP, AND IMMIGRATION

INFORMAL MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES REASONS FOR ORDER AND ORDER: ELLIOTT J. DATED: June 9, 2023 WRITTEN REPRESENTATIONS BY : Subodh S. Bharati For The Applicants Judy Michaely For The Respondent SOLICITORS OF RECORD : SSB Law Chambers Barristers and Solicitors Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent