AFOLABI OLUWAFEMI OGUNYOMBO LATIFAT OMOLADE OGUNYOMBO Applicants v. MINISTER OF CITIZENSHIP AND IMMIGRATION, 2023 FC 676

Date: 20230515 Docket: IMM-2180-23 Citation: 2023 FC 676 Toronto, Ontario, May 15, 2023 PRESENT: Mr. Associate Judge Michael D.

Crinson BETWEEN: AFOLABI OLUWAFEMI OGUNYOMBO LATIFAT OMOLADE OGUNYOMBO Applicants and MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] The Court is in receipt of a motion record from the Applicants filed April 20, 2023 for an order to revoke the deemed discontinuance of this proceeding, to reopen the proceeding, and obtain an extension of time to serve and file the Application Record for Leave and Judicial Review of a decision of the Immigration and Refugee Board, Refugee Appeal Division and under Rule 366 of the Federal Courts Rules . [ 2 ] The application for leave and for judicial review in this proceeding was filed on February 14, 2023 and indicated that written reasons for the Immigration and Refugee Board decision have been received by the Applicants.

The Notice of Appearance by the Respondent was filed February 22, 2023. The Applicant’s Application Record was thus due to be served and filed by March 16, 2023. [ 3 ] An Application Record was neither served nor filed by March 16, 2023. As a result, the application was not perfected within the time allowed by Rule 10 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules (“ FCCIRP Rules ”). Thus, pursuant to the Notice to Profession of the Federal Court of Canada of December 22, 2022 (as amended), this proceeding was deemed discontinued.

It is that deemed discontinuance that this motion seeks to revoke. [ 4 ] On December 6, 2022, the Chief Justice issued a Notice to the Profession titled Deemed Discontinuance of Incomplete Applications for Leave and Judicial Review in Proceedings under the Immigration and Refugee Protection Act , and caused it to be published on the Court’s website (“Notice”). The Notice was amended on December 22, 2022 to include applications for leave and for judicial review (“ALJR”) involving the Citizenship Act .

The content of the Notice was otherwise unchanged by the December 22, 2022 amendment. [ 5 ] The Notice explains that the Court has adopted the administrative practice of deeming applicants to have discontinued their ALJR pursuant to Rule 165 of the Federal Courts Rules if they fail, after December 6, 2022 (or December 22, 2022, as the case may be) to have perfected their applications by serving and filing an applicant’s record within the time set out by Rule 10 of the FCCIRP Rules .

The mere passage of time and the failure to perfect an ALJR by its perfection date triggers the deemed discontinuance of the ALJR pursuant to the Notice. [ 6 ] The Notice states that in a proceeding that is deemed to be discontinued in a file for which the applicant intended to file a motion for an extension of time to perfect their record, a motion to revoke the deemed discontinuance, reopen the proceeding, and obtain an extension of time may instead be filed for consideration by the Court.

A request for such relief must set out all facts relevant to the request. [ 7 ] In Virk v Canada ( Minister of Citizenship and Immigration ), 2023 FC 143 at paragraphs 40 to 43 Associate Judge Duchesne set out a two-step framework used to determine whether a deemed discontinuance should be revoked. The first step is whether the deemed discontinuance should be revoked.

This threshold inquiry is not an inquiry into the justification for delay or whether the underlying application has a reasonable prospect of success, but a proper examination of what affected the ability of the application to perfect their ALJR in time. In this case the inquiry is to determine what affected the ability of the Applicants to perfect their ALJR by March 16, 2023, bearing in mind the Application was commenced on February 14, 2023.

More specifically, is there evidence in the Motion Record that the ALJR was not perfected by March 16, 2023 because of exceptional circumstances or of a fundamental event that affected the applicants’ ability to perfect their ALJR in a timely manner despite acting diligently. [ 8 ] The explanation offered by the Applicants is that the delay in the filing of an Application Record " “was due to [one of the Applicants] sudden sickness and admission to the hospital” " . This sudden sickness and admission to the hospital is purportedly supported by the documents appended to an affidavit by one of the Applicants.

However, those appended documents do not support the explanation put forth by the Applicants. [ 9 ] The documents marked as an exhibit to the Affidavit of the first named Applicant fall into two categories: (1) documents relating to the period from September 2019 to March 2021; and (2) documents dated April 12, 2023. The first set of documents relate to the time prior to the commencement of this Application and the second set of documents relate to the period after the Application Record was due to be served and filed.

Accordingly, the Applicants have provided no supporting documents to demonstrate exceptional circumstances or a fundamental event in the period between commencement of the Application on February 14, 2023 and the due date for the Application Record to be served and filed on March 16, 2023. [ 10 ] No explanation is offered to explain why the second named Applicant could not assist counsel in preparing an Application Record.

[ 11 ] As the Court stated in Virk ( supra ) at paragraph 43: Bald statements in evidence are insufficient to address any of the questions at issue in the applicable steps and tests.

The moving party cannot rest with merely telling the Court what happened; it must show what happened. [ 12 ] The Applicants have failed to provide sufficient evidence upon which this Court could be satisfied that the circumstances resulting in the failure to perfect the application for leave and for judicial review in accordance with and within the time set out in Rule 10 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/93 22 was not the result of a lack of diligence by the Applicants. ORDER in IMM-2180-23 THIS COURT ORDERS that the Applicants’ motion is dismissed. "Michael D.

Crinson" Associate Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-2180-23 STYLE OF CAUSE: AFOLABI OLUWAFEMI OGUNYOMBO, LATIFAT OMOLADE OGUNYOMBO v MINISTER OF CITIZENSHIP AND IMMIGRATION MATTER CONSIDERED AT TORONTO, ONTARIO WITHOUT PERSONAL APPEARANCE OF THE PARTIES ORDER AND REASONS: CRINSON A.J. DATED: mAY 15, 2023 WRITTEN REPRESENTATIONS BY : Sunday O. Adeyemi For The Applicant Allison Grandish For The Respondent SOLICITORS OF RECORD : Sunday O. Adeyemi Barrister and Solicitor Toronto, Ontario For The Applicant Attorney General of Canada Department of Justice Canada Toronto, Ontario For The Respondent