[1] The Minister of Citizenship and Immigration appeals the unreported decision of a judge of the Federal Court made on September 27, 2004, granting the respondent a stay of a departure order dated September 10, 2004 made under the Immigration and Refugee Protection Act, S.C. 2001, c. 27. The departure order was to have been executed on October 2, 2004.

[2] On September 13, 2004, the respondent commenced an application for leave and judicial review of a negative pre-removal risk assessment. That application for leave had not been perfected when his motion for a stay of the departure order was heard, apparently because the reasons for the decision had not yet been received.

[3] The September 27, 2004 order states that the stay would expire on November 5, 2004 unless by that date two events had occurred. The first event was the perfection by the respondent of his application for leave. The second event was the completion of the respondent's application for permanent residence, in which he was to be sponsored by his spouse, a resident of Canada. If both of those events occurred by November 5, 2004, then the stay would be extended until the respondent's application for permanent residence was decided.

[4] In seeking to appeal the September 27, 2004 order, the Minister relies on section 27 of the Federal Courts Act, R.S.C. 1985, c. F-7, which gives this Court appellate jurisdiction over all final and interlocutory judgments of the Federal Court.

[5] However, the September 27, 2004 order is an interlocutory judgment made in relation to an application under subsection 72(1) of the Immigration and Refugee Protection Act for leave to commence an application for judicial review of a decision made under that Act. Generally, appeals of such orders are barred by paragraph 72(2)(e) of the Act, which reads as follows:

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.

72. (1) 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) The following provisions govern an application under subsection (1):

(2) Les dispositions suivantes s'appliquent à la demande d'autorisation_:

...

(e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.

e) le jugement sur la demande et toute décision interlocutoire ne sont pas susceptibles d'appel.

[6] On September 27, 2004, when the order now sought to be appealed was made, there was a pending application for leave, even though it was not yet perfected. In my view, section 18.2 of the Federal Courts Act gave the judge the jurisdiction to entertain the respondent's motion for a stay to give him time to perfect his application for leave, and to stay his removal until at least the disposition of the leave application and the resulting judicial review, if leave had been granted. Section 18.2 reads as follows:

18.2 On an application for judicial review, the Federal Court may make any interim orders that it considers appropriate pending the final disposition of the application.

18.2 La Cour fédérale peut, lorsqu'elle est saisie d'une demande de contrôle judiciaire, prendre les mesures provisoires qu'elle estime indiquées avant de rendre sa décision définitive.

[7] The basis of this appeal is not that the motion for a stay was not properly before the judge, but that the stay order itself discloses a number of errors of law.

[8] It is true that the order on its face presents a number of legal issues. First, there is an issue as to whether the judge erred in law in granting a stay that refers to matters that are external to the application for leave that is the foundation for the motion for a stay. Second, there is an issue as to whether the judge erred in law in granting a stay that could, by its terms, endure past the date of the disposition of that application for leave, and beyond the disposition of the resulting application for judicial review, if leave were granted. Third, there is an issue as to whether the judge erred in law by, in effect, usurping the authority of the Minister to consider and grant an application for relief on humanitarian and compassionate grounds from the requirement to make an application for permanent residence from outside Canada, although in that regard it seems to be arguable that a person need not be outside Canada to be sponsored as a spouse. There may also be an open question as to the scope of the Federal Court's inherent jurisdiction, as explained in Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626.

[9] It would not be appropriate to express an opinion on any of these issues because, even if the September 27, 2004 order discloses an error of law, it would be an error of law made in the context of a judgment to which paragraph 72(2)(e) of the Immigration and Refugee Protection Act applies. Parliament has said that such an order is not subject to appeal.

[10] Indeed, it would appear that an appeal of such an order would not be possible even if the judge had certified a question: Ge v. Canada (Minister of Citizenship and Immigration) (1998), 234 N.R. 87 (F.C.A.). That case dealt with the former legislation, the Immigration Act, R.S.C. 1985, c. I-2. The current legislation is, if anything, even clearer on this point.

[11] This Court has recognized a number of situations in which appeals from interlocutory judgments in immigration matters will be heard, despite paragraph 72(2)(e) of the Immigration and Refugee Protection Act. For example, in Forde v. Canada (Minister of Citizenship and Immigration) (1997), 210 N.R. 194 (C.A.), a case that preceded Liberty Net (cited above), this Court permitted the Minister to appeal a stay order that was made after the final disposition of the application for judicial review. This Court may also permit an appeal of an interlocutory order denying a recusal motion based on an allegation of bias or reasonable apprehension of bias: Re Zündel, [2004] F.C.J. No. 1982 (QL) (F.C.A.). Also, in the extraordinary case of Subhaschandran v. Canada (Solicitor General), [2005] F.C.J. No. 107 (QL) (F.C.A.), the Court permitted the Minister to appeal an order for adjournment in an immigration matter, where the order was interpreted as a refusal by the judge to exercise his discretion to grant or refuse a stay.

[12] The Minister argues that this appeal should be entertained because the order under appeal, like the order in Forde, was an order made outside the statutory jurisdiction of the Federal Court. To accept that argument could deprive paragraph 72(2)(e) of the Immigration and Refugee Protection Act of all meaning. In this case, there is no doubt that the motion for a stay was properly before the judge pursuant to section 18.2 of the Federal Courts Act. Therefore, the judge had the requisite jurisdiction to entertain the stay motion and make an order disposing of the motion. We are all of the view that paragraph 72(2)(e) of the Immigration and Refugee Protection Act precludes this Court from entertaining the Minister's appeal.

[13] The appeal will be quashed for lack of jurisdiction.

"Karen R. Sharlow"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-543-04

STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Appellant

and

GARFIELD EDWARDS

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: MAY 11, 2005

REASONS FOR JUDGMENT

OF THE COURT: (DESJARDINS, ROTHSTEIN, SHARLOW, JJ.A.)

DELIVERED FROM THE

BENCH BY: SHARLOW J.A.

APPEARANCES:

David Tyndale

Alison Engel-Yan

FOR THE APPELLANT

Garfield Edwards

FOR THE RESPONDENT, ON HIS OWN BEHALF

SOLICITORS OF RECORD:

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR THE APPELLANT

Garfield Edwards

Mississauga, Ontario

FOR THE RESPONDENT, ON HIS OWN BEHALF

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Canada (Minister of Citizenship and Immigration) v. Edwards, 2005 FCA 176

Citations2005 FCA 176

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2005 FCA 176