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77-A-302
Eleonora Vlahou (Applicant) v.
Minister of Manpower and Immigration (Respondent)
Court of Appeal, Jackett C.J., Pratte and Urie JJ.—Ottawa, February 1, 1977.
Practice — Immigration — Motion in writing applying for leave to appeal decision of Immigration Appeal Board — Insufficient affidavit evidence in support of motion or applica tion — Right to re-apply — Immigration Appeal Board Act, R.S.C. 1970, c. 1-3, s. 23 — Federal Court Rules 324, 1107 and 1301(2).
Applicant applied in writing pursuant to Rules 324 and 1107 for leave to appeal from a decision of the Immigration Appeal Board. An affidavit in support of the application showed that counsel for the applicant had only been retained nine days after the Board's decision and that he had no prior knowledge of the facts or the reasons for the Board's decision. Counsel claimed he would produce written representations in support of the application as soon as possible.
Held, the application is dismissed, without prejudice to the applicant's right to re-apply after obtaining an extension of time pursuant to section 23 of the Immigration Appeal Board Act. If a motion under Rule 324 cannot be supported by adequate representations it should not be made since, as a rule, it will be summarily dismissed. An application for leave to appeal under Rule 1301(2) must be supported by an affidavit as to the facts on which the applicant relies. Leave to appeal is not granted for the sole reason that the applicant does not know the reasons on which a judgment is based. The fact that the applicant changed counsel after the Board's decision does not in itself warrant a different decision.
MOTION in writing under Rule 324 applying for leave to appeal.
COUNSEL:
Carter C. Hoppe for applicant. T. James for respondent.
SOLICITORS:
Duggan, Hoppe, Niman & Stott, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
PRATTE J.: This is an application for leave to appeal from a decision of the Immigration Appeal Board rendered on January 5, 1977. The applica tion was made in writing pursuant to Rules 1107 and 324 and was filed on January 19, 1977. The only material filed in support of the application was an affidavit establishing that
(a) Counsel for the applicant was first contact ed by the applicant on January 13, 1977, and retained on January 14, 1977, to seek leave to appeal from the decision of the Immigration Appeal Board;
(b) Counsel for the applicant did not represent the applicant at any prior proceedings and did not have any prior knowledge of the facts of the matter; he has written to the Immigration Appeal Board and requested the transcript of the hearing and the reasons for the decision of the Board; further, counsel expects to be briefed by counsel who conducted the proceedings below as to the events that transpired at the various prior proceedings;
(c) Counsel for the applicant intends to submit written representations in support of the application "as soon as may be practicable, having regard to the time necessary to receive the material noted above and to prepare the matter for written submission."
In the letter addressed to the Registry, in which counsel for the applicant requested that the application for leave to appeal be disposed of without personal appearance pursuant to Rules 1107 and 324, it was stated that:
Pursuant to Rule 324, the Applicant desires an opportunity to make Representations to the Court in support of this application, and requests a reasonable amount of time within which to obtain and study a copy of the transcript of the hearing before, and the reasons of, the Immigration Appeal Board, and a transcript of the Inquiry which resulted in the Order of Deportation. Accordingly, the Applicant shall serve and file written Representations as soon as may be practicable.
As yet, no written representations have been filed by the applicant or the respondent.
Counsel for the applicant seems to have assumed that he could file an application for leave to appeal pursuant to Rule 324 with the under standing that it would not be disposed of until he could support it by adequate material and written representations. This, in my view, is a misappre-
hension. If one is unable to support a motion by adequate material and representations, one should refrain from making it. As a rule, a motion is disposed of on the basis of the evidence and representations made at the time of its presenta tion. When a motion is made under Rule 324, it is presented at the time it is filed with the letter requesting that it be disposed of without personal appearance. It is, therefore, at that time that the applicant's representations and the affidavit evi dence supporting the application must be submit ted; if they are not, the motion will, as a rule, be summarily dismissed.
An application for leave to appeal must, under Rule 1301(2), "be supported by an affidavit estab lishing the facts on which the applicant relies". It is clear that the facts established by the affidavit filed in support of the applicant's motion do not warrant the making of an order granting her leave to appeal. Leave to appeal from a judgment is not granted to an applicant for the sole reason that he is ignorant of the reasons on which that judgment is based. I may add that, had the applicant asked for an extension of the time within which leave to appeal may be granted, the facts established in the affidavit would not, in my view, have justified the granting of such an extension. It has already been decided that, except in special circumstances, an applicant will not be granted an extension of time to obtain leave to appeal from a decision of the Immigration Appeal Board on the sole ground that the reasons for the decision have not been com municated to him. The only additional relevant fact mentioned in the affidavit, namely, that the applicant changed counsel after the decision of the Immigration Appeal Board, is not, in my opinion, a circumstance which, in itself, would warrant a different decision.
For these reasons, I would dismiss the applica tion for leave to appeal without prejudice to the applicant's right to re-apply after having obtained an extension of time pursuant to section 23 of the Immigration Appeal Board Act.'
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JACKETT C.J.: I concur.
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URIE J.: I concur.
1 R.S.C. 1970, c. I-3.
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