Docket: IMM-19171-24
Citation: 2025 FC 1149
Ottawa, Ontario, June 25, 2025
PRESENT: Mr. Justice Pentney
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BETWEEN: |
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VICTOR BOYOWA ORHORHORO
ABOSEDE IBIYEMI ORHORHORO
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Applicants |
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and |
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
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Respondent |
ORDER AND REASONS
[1] The Applicants filed a motion seeking to appeal the Order of Associate Judge Horne dated May 21, 2025, which dismissed their motion for an extension of time to file their Motion Record in relation to their application for leave and for judicial review under s. 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] The Applicants filed their application for leave and for judicial review on October 15, 2024. It stated that they had received written reasons for the decision of the Refugee Appeal Division that dismissed their appeal. Under Rule 10(1) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 [FCCIRPR], the Applicants were required to perfect their application for leave by serving and filing their Application Record within thirty (30) days after filing their application. They did not meet that deadline.
[3] Instead, the Applicants filed a motion for an extension of time on April 2, 2025. The Respondent opposed their request, noting that the affidavit filed in support of the Applicants’ motion failed to provide sufficient details to enable them to meet the test for an extension of time.
[4] Associate Judge Horne examined the Applicants’ motion, applying the principles that govern requests for extensions of time set out in the leading cases, including Canada (Attorney General) v Hennelly, [1999] FCJ No. 846 at para 3 [Hennelly], and Canada (Attorney General) v Larkman, 2012 FCA 204 at para 61. In this case, the Applicant explained that the deadline was missed because a former assistant – who was going through a difficult period in her personal life – mis-diarized the deadline. It appears that the assistant was under the mistaken impression that the Applicants had not yet received the written reasons for decision, and thought that the deadline had therefore not started to run. When counsel discovered the mistake, they moved promptly to file the motion for an extension of time.
[5] Associate Judge Horne found that the delay in this case was significant, because judicial review proceedings in immigration matters are to proceed in a summary fashion and without delay, as indicated in the relevant timelines for such matters. Associate Judge Horne found that the evidence of a continuing intention to pursue the matter was lacking, since there was no indication that the Applicants had contacted their counsel during the six months that elapsed after the filing of their application for leave. He did not assess the merits of the underlying application, because the Applicants had not filed their proposed Application Record as part of their Motion Record on their request for an extension of time.
[6] Overall, Associate Judge Horne was not satisfied that the “vague and unparticularized evidence explaining the lengthy delay”
justified granting the request. Applying the Hennelly factors to the circumstances of this case, Associate Judge Horne dismissed the motion for an extension of time.
[7] The Applicants have filed a motion in writing seeking to appeal this decision. They argue that the decision is based on an error of law and that they had satisfied the applicable legal test.
[8] The Respondent submits that the appeal must be rejected because paragraph 72(2)(e) of IRPA forbids an appeal from an interlocutory judgment, and therefore the Court does not have jurisdiction to hear the appeal. In the alternative, the Respondent argues that the appeal should be dismissed on its merits, because Associate Judge Horne applied the correct legal test and considered all of the relevant factors.
[9] Although it may seem harsh to the Applicants, I find that their appeal must be dismissed for one simple reason: the Court is bound by the law to refuse to hear it.
[10] The Applicants filed their appeal pursuant to Rule 51 of the Federal Courts Rules, SOR/98-106 [the Rules], which governs appeals from Associate Judges in most proceedings. However, their underlying application was filed under s. 72(1) of IRPA, which triggers the application of the law and rules governing immigration proceedings in this Court. It is clear that Parliament intended the rules set out in IRPA to take precedence over the ordinary Rules that apply to judicial review proceedings in the case of a conflict: see s. 75(2) of IRPA and Rule 1.1 of the Rules.
[11] The key provision in this case is paragraph 72(2)(e) of IRPA, which provides that “no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.”
The “application”
that the provision refers to is an application for leave to seek judicial review filed pursuant to s. 72(1) of IRPA.
[12] In this case, the Associate Judge’s Order dismissing the Applicants’ request for an extension of time to file their Application Record is interlocutory in nature. There is ample caselaw that confirms that no appeal can be heard by this Court from such interlocutory orders in immigration matters: see Shorif v. Canada (Citizenship and Immigration), 2024 FC 1709 at paras 12-13 and the many cases cited there. Based on this case-law, and the clear wording of paragraph 72(2)(e), I have no choice except to dismiss the Applicants’ motion.
[13] I noted earlier that the Applicants may find this to be a harsh outcome, because they were not responsible for the delay. While I have sympathy for their situation, I am duty-bound to apply the law. The provision in IRPA barring appeals from interlocutory orders has been the law for many years, and until Parliament decides to change it, I am bound to follow it.
[14] For the reasons set out above, the Applicants’ appeal is dismissed. No costs are awarded.
[15] One final procedural point: the proper Respondent in this matter is styled “The Minister of Citizenship and Immigration”
. The style of cause is amended accordingly, with immediate effect.
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