[1] This is an appeal from a Trial Division judgment dated July 11, 2002 denying a motion for an order to stay an inquiry that had been commenced under subsection 27(3) of the Immigration Act, R.S.C. 1985, c. F-7. The reasons for judgment are reported as Oberlander v. Canada (Attorney General) (2002), 22 Imm. L.R. (3d) 122 (F.C.T.D.).

Facts

[2] The appellant's citizenship was revoked on July 12, 2001 by Order in Council P.C. 2001-1227 made under subsection 10(1) of the Citizenship Act, R.S.C. 1985, c. C-29. The appellant commenced an application for judicial review of the decision of the Governor in Council to make the Order in Council (Trial Division File T-1505-01). The hearing of the judicial review is scheduled for June 23, 2003.

[3] On August 27, 2001, an immigration officer made a report under subsection 27(2) of the Immigration Act that the appellant is a person described in paragraph 27(2)(i) of the Immigration Act. Paragraph 27(2)(i) reads as follows:

... a person who ceased to be a Canadian citizen pursuant to subsection 10(1) of the Citizenship Act in the circumstances described in subsection 10(2) of that Act ...

... a perdu sa citoyenneté canadienne conformément au paragraphe 10(1) de la Loi sur la citoyenneté en raison de l'existence des circonstances visées au paragraphe 10(2) de cette Loi ...

[4] The issuance of the subsection 27(2) report led automatically to a direction under subsection 27(3) of the Immigration Act for an inquiry before the Adjudication Division of the Immigration Refugee Board. That inquiry may lead to a determination that the appellant has a right to remain in Canada, or it may lead to a deportation order against the appellant.

[5] If there is a deportation order, the appellant will be subject to certain travel restrictions. However, the deportation order will not be executed until the completion of further proceedings required by the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (which has replaced the Immigration Act). In addition, counsel for the appellant indicated at the hearing of this appeal that the appellant's spouse and daughter have made an application to sponsor him, and in connection with that application they have sought relief on humanitarian and compassionate grounds from certain statutory conditions. It is my understanding that if that relief is granted, the appellant will be permitted to remain in Canada while his family's sponsorship application is considered.

[6] The immigration inquiry commenced on November 27, 2001 and continued on March 26, 2002. The adjudicator conducting the inquiry was not asked to adjourn the inquiry pending the application for judicial review of the decision of the Governor in Council. A third sitting of the inquiry was scheduled for May 16, 2002, but before that date the appellant brought a motion in T-1505-01 for an order staying the immigration inquiry until completion of the application for judicial review of the decision of the Governor in Council. The motion was dismissed, which led to this appeal.

[7] As indicated above, the immigration inquiry began under the Immigration Act, and was automatically continued by the Immigration Division when the Immigration and Refugee Protection Act came into force. Neither party has suggested that any of the differences between the two statutes are relevant to the issues in this appeal.

[8] The immigration inquiry is not yet complete. The appellant has never asked the adjudicator to delay or adjourn the proceedings. Nor has the appellant sought leave to commence an application for judicial review of any decision made under the Immigration Act or the Immigration and Refugee Protection Act relating to the inquiry.

Jurisdiction of the Trial Division

[9] Counsel for the Crown argues that this Court has no jurisdiction to hear this appeal. Before dealing with that argument, I will deal with the question of whether or not the Trial Division had the jurisdiction to consider the motion to stay the immigration inquiry. Apparently, arguments relating to jurisdiction were made before him, and he concluded that he had the requisite jurisdiction.

[10] Counsel for the Crown argues that the Trial Division had no jurisdiction to consider the motion to stay the immigration inquiry. The basis of his argument is that, although the motion to stay the immigration inquiry purports to be an interlocutory matter in the application for judicial review of the decision of the Governor in Council, which is a proceeding under the Citizenship Act, in substance it is an application for judicial review of an immigration matter, which is barred unless leave is obtained under subsection 72(1) of the Immigration and Refugee Protection Act (or its predecessor, subsection 82.1(1) of the Immigration Act). Subsection 72(1) of the Immigration and Refugee Protection Act 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.

[11] Counsel for the Crown submits that this provision is the clearest possible statement by Parliament that immigration matters are to proceed without judicial intervention except to the extent that leave is obtained from a judge of the Trial Division.

[12] Counsel for the appellant argues that the motion for a stay is an interlocutory motion in the application for judicial review of the decision of the Governor in Council, and as such is not affected by the leave requirements of the Immigration Act or the Immigration and Refugee Protection Act. She argues that since the motion for a stay was attached to the Governor in Council matter, the jurisdiction of the Trial Division to hear the motion for a stay is found in section 18.2 of the Federal Court Act, R.S.C. 1985, c. F-7, which reads as follows:

18.2 On an application for judicial review, the Trial Division may make such interim orders as it considers appropriate pending the final disposition of the application.

18.2 La Section de première instance 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.

[13] She relies in the alternative on subsection 50(1) of the Federal Court Act, which reads as follows:

50(1) The Court may, in its discretion, stay proceedings in any cause or matter,

(a) on the ground that the claim is being proceeded with in another court or jurisdiction; or

(b) where for any other reason it is in the interest of justice that the proceedings be stayed.

50(1) La Cour a le pouvoir discrétionnaire de suspendre les procédures dans toute affaire_:

a) au motif que la demande est en instance devant un autre tribunal;

b) lorsque, pour quelque autre raison, l'intérêt de la justice l'exige.

[14] An argument like the one made by counsel for the appellant was accepted in Kindler v. Canada (Minister of Justice), [1989] 2 F.C. 38 (T.D.). That case involved a stay of proceedings undertaken by the Minister of Justice under the Extradition Act, R.S.C. 1970, c. E-21. However, the Extradition Act had no provision comparable to the leave requirement in the Immigration and Refugee Protection Act.

[15] Counsel for the appellant also points out that there are numerous cases in which the Trial Division has taken the position that it has the jurisdiction to stay the execution of deportation orders where no leave is sought to commence an application for judicial review of the deportation order itself. I do not propose to analyse the extensive jurisprudence relevant to this point. It is sufficient to say that in every case cited by counsel for the appellant, the motion to stay the execution of the deportation order was grounded on some application for judicial review in relation to which leave was at least being sought under the Immigration Act.

[16] The purpose of the motion that is the subject of this case was to delay the immigration inquiry. The most straightforward means to that end would have been to ask the adjudicator to adjourn the inquiry until after the completion of the judicial review of the decision of the Governor in Council. An adjournment might have been granted, which would have precluded any need for recourse to the Trial Division. If the adjournment had been refused, the refusal could have been the subject of an application for judicial review, which would require leave.

[17] I agree with counsel for the Crown that the motion to stay the immigration inquiry was an attempt to have the Court intervene in an immigration matter without first obtaining leave as required by subsection 72(1) of the Immigration and Refugee Protection Act. Such a tactic tends to undermine the purpose of the leave requirement. The judge would have been justified in finding an abuse of process, and refusing on that ground alone to hear the motion or to grant the relief sought. In the circumstances, however, I am prepared to assume without deciding that the Trial Division had jurisdiction under section 18.2 of the Federal Court Act to consider the motion and deal with it on the merits.

Appellate jurisdiction

[18] Under subsection 27(1) of the Federal Court Act, this Court has the jurisdiction to hear an appeal from any judgment of the Trial Division unless there is a statutory bar. One such bar is the certified question requirement in paragraph 74(d) of the Immigration and Refugee Protection Act (or its predecessor, subsection 83(1) of the Immigration Act), which applies to judicial review in immigration matters. No question was certified in this case. However, this matter proceeded in the Trial Division on the basis that it was not an immigration matter. Therefore, no certified question was required and this Court has the jurisdiction to hear the appeal.

Merits of the decision to refuse the motion to stay the immigration inquiry

[19] There are three issues to be considered in relation to the merits of the motion to stay the immigration inquiry. First, is there an arguable case on the application for judicial review of the decision of the Governor in Council? Second, will the appellant suffer irreparable harm if the immigration inquiry is not stayed? Third, will the harm suffered by the appellant if the immigration inquiry is not stayed outweigh the harm suffered by the Crown if the immigration inquiry is stayed? An order staying the immigration inquiry is justified only if the answer to all three questions is yes.

[20] In the judicial review of the decision of the Governor in Council, the appellant proposes to make a number of arguments. For the purposes of the motion to stay the immigration inquiry, she relies on two of those arguments as illustrating an arguable case. One is that the Governor in Council misconstrued its mandate under section10 of the Citizenship Act. The other is that the Governor in Council erred in failing to give reasons for its decision. In my view, these arguments meet the very low threshold for an arguable case in the context of a stay application.

[21] The material submitted by the appellant on the question of irreparable harm was aimed at establishing the stressfulness of the inquiry process and the prospect of deportation. The Judge found no irreparable harm. He gave a number of reasons, but in my view the most compelling is that the motion to stay the immigration inquiry is premature because the inquiry might not lead to a deportation order, much less a deportation. I agree with him on that point. In my view, that justifies the conclusion that the appellant failed to establish irreparable harm.

[22] It is not necessary to consider the other arguments relating to irreparable harm, or the arguments relating to the balance of convenience. This appeal should be dismissed.

"Karen R. Sharlow"

J.A.

"I agree

Gilles Létourneau"

"I agree

Marc Nadon"

FEDERAL COURT OF CANADA

APPEAL DIVISION

Names of Counsel and Solicitors of Record

DOCKET: A-365-02

STYLE OF CAUSE: HELMUT OBERLANDER

Appellant

- and -

THE ATTORNEY GENERAL OF CANADA

Respondent

DATE OF HEARING: WEDNESDAY, MARCH 12, 2003

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR JUDGMENT BY: SHARLOW J.A.

CONCURRED IN BY: LÉTOURNEAU J.A.

NADON J.A.

DELIVERED AT TORONTO, ONTARIO ON THURSDAY, MARCH 13, 2003.

DATED: THURSDAY, MARCH 13, 2003

APPEARANCES BY: Ms. Barbara Jackman

Mr. Eric Hafemann

For the Appellant

Mr. Donald MacIntosh

Mr. John Loncar

For the Respondent

SOLICITORS OF RECORD: Barbara Jackman

Barrister & Solicitor

596 St. Clair Avenue West, Unit 3

Toronto, Ontario

M6C 1A6

Eric Hafemann

Barrister & Solicitor

500 Dutton Drive

Waterloo, Ontario

N2L 4C6

For the Appellant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

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Oberlander v. Canada (Attorney General), 2003 FCA 134

Citations2003 FCA 134

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2003 FCA 134