Date: 20081128
Docket: IMM-2418-08
Citation: 2008 FC 1331
Ottawa, Ontario, November
28, 2008
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
Tahir
Hussain KHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR
ORDER AND ORDER
[1]
Pursuant to rule 51 of the Federal Courts Rules, SOR/98-106,
the applicant is appealing from the decision of Prothonotary Morneau who, on
October 2, 2008, dismissed his motion for an extension of time to file his
motion record.
[2]
However, no appeal lies from such an interlocutory order of
the prothonotary, in view of paragraph 72(2)(e) of the Immigration
and Refugee Protection Act, S.C. (2001), c. 27 (IRPA):
|
72. (1) Judicial review
by the Federal Court with respect to any matter – a decision, determination
or order made, a measure taken or a question raised – under this Act is
commenced by making an application for leave to the Court.
(2) The following provisions govern an
application under subsection (1):
[. . .]
(e) no appeal lies
from the decision of the Court with respect to
the application or with respect to an
interlocutory judgment.
|
72. Le contrôle judiciaire par la Cour
fédérale de toute mesure – décision, ordonnance, question ou affaire – prise
dans le cadre de la présente loi est subordonné au dépôt d’une demande
d’autorisation.
(2) Les dispositions suivantes s’appliquent à
la demande d’autorisation :
[. . .]
e) le
jugement sur la demande et toute décision
interlocutoire ne sont pas susceptibles
d’appel.
|
[3]
In Yogalingam v. The Minister of Citizenship and Immigration,
2003 FCT 540, this Court specifically determined that a decision of a
prothonotary dismissing a motion for an extension of time in order to perfect a
record is an interlocutory decision and, pursuant to paragraph 72(2)(e) of
the IRPA, it lacks jurisdiction to hear an appeal from such a decision (see
also Yawar Abbas Syed v. Minister of Citizenship and Immigration (September
9, 2003), IMM-2551-03). This interpretation was repeated and confirmed by the
Federal Court of Appeal in Froom v. The Minister of Citizenship and Immigration,
2003 FCA 331, in which it referred to Yogalingam, supra, among
others.
[4]
Consequently, this motion to appeal is dismissed.
[5]
In view of the relevant and unequivocal case law above,
there is no question for certification arising.
ORDER
The
motion to appeal from the decision dated October 2, 2008, by Prothonotary Morneau
is dismissed.
“Yvon
Pinard”
Certified
true translation
Susan
Deichert,
LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2418-08
STYLE OF CAUSE: Tahir Hussain KHAN v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE
OF HEARING: Montréal, Quebec
DATE
OF HEARING: November 17, 2008
REASONS
FOR ORDER
AND
ORDER: PINARD
J.
DATED: November 28, 2008
APPEARANCES:
Stewart Istvanffy FOR THE
APPLICANT
Patricia Nobl FOR THE
RESPONDENT
SOLICITORS
OF RECORD:
Stewart
Istvanffy FOR THE
APPLICANT
Montréal,
Quebec
John
H. Sims, Q.C. FOR THE
RESPONDENT
Deputy
Attorney General of Canada
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