Docket: A-370-15
Citation:
2016 FCA 126
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CORAM:
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DAWSON J.A.
STRATAS J.A.
NEAR J.A.
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Appellant
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and
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JOHN JOSEPH
GOODMAN
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on
April 25, 2016).
DAWSON J.A.
[1]
By order dated August 13, 2015, issued in Court
file No. IMM-1633-15, a judge of the Federal Court stayed the respondent’s
application for judicial review of a decision of the Immigration Division of
the Immigration and Refugee Board. The Board found the respondent to be
inadmissible to Canada as a person described in paragraphs 34(1)(f) and
36(2)(b) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (Act). The stay is to continue until 15 days after the respondent
receives a final decision by the Minister of Public Safety and Emergency
Preparedness (Minister of Public Safety) about whether to grant ministerial
relief from the finding of inadmissibility pursuant to what was formerly subsection
34(2) of the Act. This is an appeal from the order granting the stay.
[2]
Paragraph 72(2)(e) of the Act bars
appeals from interlocutory orders of the Federal Court rendered in proceedings
commenced under the Act. Subsection 74(d) of the Act bars appeals to this Court
in the absence of a stated and certified question of general importance.
[3]
A narrow exception exists to these provisions:
an appeal lies where the Federal Court refuses to exercise its jurisdiction or
commits a jurisdictional error (Canada (Solicitor General) v. Subhaschandran,
2005 FCA 27, [2005] 3 F.C.R. 255, at paragraphs 13-15; Sellathurai v. Canada
(Public Safety and Emergency Preparedness), 2011 FCA 223, [2012] 2 F.C.R.
243, at paragraph 15).
[4]
The Minister of Citizenship and Immigration
submits that this appeal falls within the narrow exception because the Federal
Court committed a jurisdictional error and failed to exercise its jurisdiction.
[5]
The Federal Court’s jurisdictional error is said
to be exceeding its jurisdiction by taking away from the Minister of Public
Safety his discretion to await the outcome of the judicial review of the
finding of inadmissibility before making his own decision on the ministerial
relief application. The refusal to exercise jurisdiction is said to arise
because by staying the application for judicial review, the Court refused to
exercise its jurisdiction to hear the application in an expeditious manner as
mandated by paragraph 72(2)(d) of the Act.
[6]
We see no merit in either submission.
[7]
With respect to the first asserted error, we
accept the respondent’s submission that in order to interfere with the
Minister’s discretion to render his ministerial relief decision after the
inadmissibility finding has been judicially reviewed, the appellant must
demonstrate the Minister possesses such a right. In our view, he does not.
[8]
The Federal Court has held that nothing in
section 34 of the Act dictates whether a ministerial relief decision under
subsection 34(2) should be made before determination of inadmissibility under
subsection 34(1), or vice versa (Hassanzadeh v. Canada (Minister of
Citizenship and Immigration), 2005 FC 902, [2005] 4 F.C.R. 430, at paragraph
25; Shahzad v. Canada (Citizenship and Immigration Canada), 2015 FC
1245, [2015] F.C.J. No. 1291, at paragraph 14). As well, the Federal Court
possesses jurisdiction to compel the Minister to render his decision where
there has been unreasonable delay (see, for example, Esmaeili-Tarki v.
Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 697,
[2010] F.C.J. No. 1020). It follows that the Minister has no discretion to
determine the order in which decisions under section 34 of the Act are made.
[9]
Further, any error by the Judge was an error of
law – not an error of jurisdiction.
[10]
To the extent the Minister relies on a passage
in Poshteh v. Canada (Minister of Citizenship and Immigration)
2005 FCA 121, [2005] 3 F.C.R. 511 at paragraph 10 to effect that subsection
34(2) does not fetter the discretion of the Minister as to when he might grant
a ministerial exemption, this must be read in the context that the Minister was
arguing that a ministerial exemption was not available once a finding of
inadmissibility was made.
[11]
With respect to the second asserted error,
paragraph 72(2)(d) of that Act does not limit the jurisdiction of the
Federal Court under paragraph 50(1)(b) of the Federal Courts Act,
R.S.C. 1985, c. F-7 to stay an application initiated under the Act when it is
in the interest of justice that the proceeding be stayed. A judge considering a
motion for a stay must always take into account the need for proceedings to be
conducted with celerity – in no sense can this be seen as a failure to exercise
the Court’s jurisdiction.
[12]
For these reasons, the appeal will be dismissed
for lack of jurisdiction. In our view, special circumstances do not exist so as
to warrant an award of costs.
“Eleanor R. Dawson”
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