Muncan v. Canada (Minister of Citizenship and Immigration), docket IMM-2701-97

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Date: 19980224

Docket: IMM-2701-97

BETWEEN:

SIMA MUNCAN

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

CAMPBELL J.

[1] On the face of it, s.18.2 of the Federal Court Act grants a very wide discretion to judges to grant stay applications. However, in applications for stays of removal orders under the Immigration Act, there is mixed judicial opinion as to the scope of the discretion granted. Since applications for stays of removal orders in matters under the Immigration Act are a common occurrence in this Court, and since I have had many and expect to have many more, I believe it is necessary to set out in detail my reasoning for the approach which I have adopted on this deportation issue.

A. The process leading to this decision

[2] On September 16, 1997, Mr. D. Campbell on behalf of Mr. Muncan applied for a stay of a pending removal order. Mr. B. Hardstaff argued against the application on behalf of the Minister of Citizenship and Immigration. In giving my oral reasons for granting the stay on limited terms, I referred to my reasons in a similar application made the week before in Calgary in the case of Jaggernauth v. MCI (IMM-2260-97) wherein Mr. Hardstaff also argued against the application. In Jaggernauth Mr. Hardstaff presented a detailed written argument which he also referred to in his submissions on this case. In both cases I responded to the major points he raised, but orally and only in so much detail as necessary to deal with the imminent removal orders concerned.

[3] In this case I delivered my reasons from the bench and did not say that written reasons would follow. However, to clarify my reasoning, I wish to supplement my oral reasons already provided to deal in some detail with the many technical issues raised by Mr. Hardstaff in his submissions. In this respect, I will first briefly set out the facts, what I said from the bench on September 16th, and then provide further analysis of the legal issues argued.

[4] Mr. Muncan, who immigrated to Canada from Yugoslavia in 1975 with his mother and step-father when he was seven years old, is now 29 years old and has a son who was born December 31, 1992. Over a ten-year period he was convicted of 23 criminal offences including theft, obstruction of a police officer, assault, possession and trafficking in narcotics, mischief,

driving while impaired, unlawful confinement and assault causing bodily harm. Based on this criminal history, on December 4, 1996 the Minister declared him to be a danger to the public in Canada and on June 2, 1997, a Deportation Order was issued against him. Mr. Muncan appealed to the Immigration and Refugee Appeal Board against the Deportation Order and sought a stay of execution of the Deportation Order pending a determination of his appeal.

On September 16th I gave these oral reasons:

In this case I have heard arguments which allow me to apply reasoning which I have recently provided in another case called Jaggernauth, [IMM-2260-97] which is at present an unreported decision.

In that case, the power that I have under s. 18.2 was argued, and I found in that case that the meaning to be placed on that section, of course, should be found within its terms. That section provides a very broad discretion. The section reads:

s.18.2 On an application for judicial review, the trial division may make such interim orders as it considers appropriate pending the final disposition in the application.

The merits of that case are not as important as what I had to say about how to view this subject. The argument in that case was that the deportation order was unchallengeable and, indeed, wasn't challenged.

Consequently, it was argued that I couldn't go beyond the deportation order itself to consider anything to do with the application for leave to bring a judicial review. The argument, therefore, was that there was no nexus or connection between the removal order and the matter under review. On that point, I said this:

On the first question about the nexus, I have to state that s.18.2 speaks to providing a very broad discretion, and there have been a number of legal opinions expressed on what it basically means. As far as I am concerned, the application of the discretion under s.18.2 depends on the legal and factual merits of each and every individual case. I do not think it wise, nor do I think it is proper to try and set standard guidelines or to say that certain things are not possible. I think every case shall be dealt with on its own merits.

In this case, I find that there is an application for judicial review pending. So under s.18.2, the essential precondition has been met. It's true that the application was filed out of time, and it may be a judge will not grant an extension, but at this point, no decision on that has been made as far as I know. In terms of considering this case, therefore, I see no impediment.

The second thing is that I don't think that I should take a narrow view towards the facts. I don't think I should try to make myself blind to critical factors which exist in the surrounding context here.

The surrounding context of this case is that there is and continues to be highly contested legal argument around the effective constitutionality of s. 70(5) of the Immigration Act. That legal argument has resulted in the Trial Division judgment of Justice Reed, which has been overturned by an Appeal Division judgment written by Justice Strayer.

I know that an appeal to the Supreme Court of Canada is pending. In other words, leave is being requested. No one today was able to say if it has been granted. The case has received a high degree of notoriety. It is an important matter.

The second thing that I understand about the context, and I have heard this before, is that the Appeal Division of the Immigration and Refugee Board itself is not firmly convinced that it doesn't have jurisdiction to deal with the merits even in view of the fact that s.70(5) withstands.

And I have heard enough in this case today to know that the Appeal Division does not lay dormant on this point. A letter of request has been made, dated I believe September 3rd, asking for the file to be taken to it. It may be that the Appeal Division wishes to proceed. We don't have any firm evidence about what it chooses to do, but I do know that this is a factor.

Now, in terms of trying to apply the tripartite test, from my point of view, in this case, the tripartite test deals with the issues involved and the merits of s. 70(5) and the surrounding legal contests. It's not enough to say that it just relates to simply the deportation order itself, because that flies in the face of what I think to be common sense.

The reason Mr. Muncan does not want to get deported is because, on the basis of his affidavit, he thinks, first of all, that he has a good case to argue that the decision under s.70(5) is wrong, and there is good evidence to support him on that point. The second thing is he believes he has got a good contest of the constitutionality of that section, and indeed, so do a whole lot of other people in this country.

So I choose to relate this application on the injunction to the general merits and the surrounding context, not simply limited to the deportation order.

On the first leg of the tripartite test, there is no question there is a serious issue to be tried here. On the question about irreparable harm, the argument has been made that, well, Mr. Muncan can be deported and go to Yugoslavia and deal with this case from there. Frankly, I think that's a fantasy. He has some relatives there, but he hasn't lived there since he was 7 years old. He doesn't speak the language. It is halfway around the world. If he wanted to contest this case meaningfully, there is no possible way, in my view, that he could do it from there.

So I find on these facts in this case, because I have already said each case should be dealt with on its own merits, it is irreparable harm to move him from the country at this point, and certainly, the balance of convenience lies with him. It is more convenient, for sure, for him to be here to contest this than it is to remove him.

Now, I find, therefore, the three tests have been met. I don't think, though, that the limit of my discretion should go beyond the leave application itself.

In other words, if Mr. Muncan is not successful in his pending leave application, I don't think that this particular stay should go beyond that. So I grant the stay until a decision is made on the extension of time and the leave application itself.

If Mr. Muncan is granted an extension of time and if he is granted leave, he is going to have to refresh this motion. If he is denied either, the stay issue becomes moot.

So my direction is that the stay is granted until a decision is made on the extension of time and leave application.

B. The submission

[5] Mr. Hardstaff in Jaggernauth, and repeated in this case, made submissions that "while there is some debate in the authorities as to whether the removal order itself must be the subject of a separate judicial review application, but what is clear is that the viability of the removal order must be connected to the matter under review". This is, in effect, a jurisdictional argument.

C. What precedents have addressed the issues raised by the submission?

[6] Support for Mr. Hardstaff"s position comes from a group of cases which have at their root the Trial Division judgment of Strayer J. in Shchelkanov v. M.E.I. (1994) 76 F.T.R. 151.¹ At 152 he said this:

The unwillingness of this Court to intervene in such circumstances has sometimes been attributed to a want of jurisdiction. Whether that is the proper characterization depends, I believe, on how one defines jurisdiction.

...

[7] Although Strayer J."s reasoning in Ali and Shchelkanov has been followed in a number of cases, it is important to note that he did not impose an absolute jurisdictional bar to granting a stay. He merely said that, in his judgment, the appropriateness of doing so would only occur in very limited circumstances. But outlined in the cases set out in Appendix II, under the sub-heading "Jurisdictional Bar Cases", it is evident that some Justices of this Court have refused to grant a stay of deportation order on the basis that they are constrained by the decision in Ali.

[8] For example, in Seegobin and Paul, Noël J. followed Ali and refused to grant stays of the deportation orders. McKeown J. followed the decisions in both Ali and Paul in coming to the same conclusion. In Diaz, Rouleau J. endeavoured to find jurisdiction which would allow him to judicially review decisions that would permit him to stay the deportation order under consideration, but was unable to do so.

[9] In addition, in Rajan, Rothstein J. determined that the Court had no jurisdiction to grant a stay for different reasons. He held that he was unable to grant a stay on the basis that it "would be tantamount to my making an order that is expressly contrary to a provision of an Act of Parliament".

[10] However, a divergent position has often been taken. Some of these cases are set out in Appendix III, under the sub-heading "No Jurisdictional Bar Cases". The decisions of Reed J. (Petit & Bhatti), Noël,J. (Bal), Jerome A.C.J. (Llewellyn) , Gibson J. (Robinson) and Mackay J. (Samokhvalov), taken as a whole, find that the court may assume jurisdiction.

[11] Noël J."s decision in Bal provides a significant change in view to that expressed in his earlier decisions in Seegobin and Paul because of the compelling nature of the factual situation at hand. In Bal he said this:

I, and others, have previously held that this Court does not have the jurisdiction to issue a stay in the circumstances of this case. However, other judges of this Court have expressed the opposite view . There is obviously some uncertainty as to whether or not this Court has jurisdiction to stay the deportation order where the validity of the order is not in dispute. If I could, I would order a stay of the deportation order pending the determination of the jurisdictional issue by the Court of Appeal. I would do so because, if I have the discretion to grant a stay, this is clearly a case where it ought to be exercised and it would be in the interest of justice to preserve the status quo pending the determination of the issue. However, I have been unable to identify any procedural means by which this issue can be submitted to the Court of Appeal in this instance, and indeed, it may be that the question is wholly beyond the purview of the Court of Appeal.

In these circumstances, it is incumbent upon the members of this Court to insure that there is some consistency in the manner in which fundamental issues going to the jurisdiction of the Court are dealt with. Where there is an open question as to the jurisdiction to grant a relief, and it is apparent that it would be in the interest of justice that the relief be granted, then I believe that the uncertainty should be resolved in favour of the party seeking the relief. To do otherwise would deprive a party of a remedy on the necessary assumption that those who have assumed jurisdiction to grant it were wrong. I believe that the contrary assumption must be made unless and until the Court of Appeal decides otherwise.

[12] Muldoon J. takes a somewhat wider view of the scope of the Court's jurisdiction under s.18.2 than Strayer J. In Munoz, Owusu, Ponnampalon, Invathong, Williams and Rizzo, he does not consider the existence of a pending judicial review application as the deciding factor governing whether or not the Court may exercise its jurisdiction. Rather, in his view, it is appropriate for the Court to exercise its jurisdiction to prevent a "maladministration" of justice. What constitutes a "maladministration" rests on the specific facts and circumstances of each case.

[13] Simpson J. takes this reasoning one step further in Calderon where she states that when faced with an application to stay a deportation order, the Court must "assess all the circumstances and do what is just". She, thus, has decided that the scope of the discretion under s.18.2 is quite broad when dealing with immigration matters.

[14] Thus, for those Justices who see no jurisdictional bar to the exercise of discretion under s.18.2, there is nevertheless a range of opinion as to the circumstances that will warrant a stay order.

D. My response to the submission

[15] As I said in my oral reasons, I find there is no jurisdictional limit to the discretion that I am empowered to apply under s.18.2. The whole question of whether the discretion should be exercised relates to the merits of each individual case.

[16] Regarding an application for a stay of a removal order under the Immigration Act, it seems to me that the issue is whether it is fair and just to grant it. While it is true that the Minister of Citizenship and Immigration has discretion to issue a removal order while a judicial review application respecting a person"s immigration status is pending, it is also the right of the person subject to removal to apply under s.18.2 for a stay of the removal order. If a stay application is made, clearly it is not the legal worth of the deportation order that is in question. The question is whether it is "appropriate", to use the standard set by Strayer J. in Shchelkanov , to allow the removal order to take effect while the judicial review is pending. The answer to this question requires an analysis of all the facts in the legal and practical context of the applicant"s case.

[17] Thus, in considering the entire context in deciding whether to exercise the discretion provided under s.18.2, I find it is far too technical a perspective to require the deportation order to be challenged on judicial review or to limit the application of the appropriate injunctive test to the circumstances of the deportation order itself.

[18] In adopting this view, I find that the tripartite test for granting a stay found in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 is to be applied to all the facts under consideration in the judicial review application outstanding. That is, the serious question that must exist has to do with the merit of the grounds of the judicial review application itself, and the irreparable harm and balance of convenience considerations include reference to the practical impact that a removal order will have on the applicant and his or her family.

[19] On the irreparable harm question, I also think that each case must be decided on its own merits. Therefore, to say that the harm must suit a particular guideline such as a threat to the applicant"s life or safety, for me, is to set an unnecessary limit upon the discretionary powers in s.18.2.

[20] Accordingly, I choose to exercise my discretion under s.18.2 with the fullest vision possible.

J.F.C.C.

OTTAWA, ONTARIO

APPENDIX I

Shchelkanov v. Minister of Employment and Immigration

(1994) 76 F.T.R. 151 (Strayer J.) at 151:

I indicated that in my view, as I have held before,(See, e.g. Ali v. M.E.I., November 17, 1992, 2-T-1647 the Court should not grant a stay of deportation pending determination of a judicial review where the judicial review pending in this Court is not an attack on the deportation order but rather an attack on the Minister"s action or (as in this case, inaction) in respect of an application for a discretionary decision in the applicant"s favour pursuant to subsection 114(2). In the present case the deportation order became unconditional on May 20, 1993. No judicial review was ever sought with respect to that decision. It remains and must be treated as a valid order. According to section 48 of the Immigration Act , the Minister is obliged to execute that order "as soon as reasonably practicable".(See, e.g. Lodge v. M.E.I., [1979] 1 F.C. 775 at 783). Nowhere in the Act, as far as I can ascertain, is the execution of that order made subject to the proper completion of the consideration of an application for exceptional discretionary treatment for the deportee if such has been filed under subsection 114(2).(This may be contrasted to the situation before the Court of Appeal in Benhenev. M.E.I., April 13, 1992, 92-A-2193 where the negative refugee decision under attack had automatically rendered the removal order executory: its quashing as sought on judicial review would make the removal order conditional again and thus non-executable.) The unwillingness of this Court to intervene in such circumstances has sometimes been attributed to a want of jurisdiction. Whether that is the proper characterization depends, I believe, on how one defines jurisdiction. The jurisdictional rationale seems to have led to a view that all obstacles had been removed to granting stays in such circumstances by the adoption of section 18.2 of the Federal Court Act in 1990 which provides on an application for judicial review, the Trial Division may make such interim order as it considers appropriate pending the final disposition of the application.

It is doubtful that this section really changed anything, as the Court had already held that it had such powers.(See, e.g. Toth v. Canada (1988) 86 N.R. 302; Yri-York Ltd. v. Canada, [1988] 3 F.C. 186.) The Court of Appeal held specifically both before (Donkor v. M.E.I. (1988) 7 Imm. L.R.(2d) 165; Asumadu v. M.E.I. (1988) 113 N.R. 150) and after (Akyampong v. M.E.I. (1992) 18 Imm. L.R.(2d) 18) the enactment of section 18.2, however, that the Court should not grant a stay of deportation where the validity of the removal or exclusion order is not attacked. Basing myself on the power as now defined in section 18.2, I do not consider it "appropriate" to stay the execution of a valid order made by an adjudicator under section 27 and 32.1 on the basis that the Court has before it an application for judicial review of the alleged failure of the Minister to make a decision under subsection 114(2), when the proper making of the latter is not a legal pre-condition for the execution of the former.

In my view it is appropriate to issue interlocutory injunctions or stays only when there is an allegation (amounting to a serious question) that the defendant or respondent is doing, or about to do, something unlawful. (The sole exception to this could arise where the defendant or respondent is acting in such a way as to impede the due operation of Court processes, a matter to which I will return later). The importance of this requirement can be appreciated if one looks to the order the Court could make on final determination of the case before it. If the Court could not, at the end of the process, permanently enjoin or prohibit the activity whose interim stay is

sought, on what basis can that activity be stopped by the Court on an interim basis? The premise of an application for a stay should be: assuming everything the applicant alleges is ultimately proven, then the act complained of could be

prohibited, and it should be prohibited on an interim basis because of the irreparable harm the continuation of this illegal act will cause in the meantime. Applying that approach to the present situation, even if the applicant succeeds in obtaining mandamus to require the Minister to make a subsection 114(2) decision, that would not enable the Court to enjoin or prohibit permanently the execution of the removal order. That order will remain valid. Indeed the application for leave and for judicial review does not request any such permanent order. With great respect to those who take a different view, I do not understand on what basis it would be appropriate therefore to stay temporarily the execution of the undoubtedly valid deportation order made by an adjudicator in the exercise of his statutory power pending determination of judicial review of a completely different action (or inaction) on the part of the Minister in respect of the exercise of his powers or those of the Governor in Council. With respect it seems to me that the situation is directly comparable to the Lodge case where the Court of Appeal said it could not enjoin execution of deportation orders just because in another forum, a Canadian Human Rights Tribunal, there might some day emerge a decision favourable to the deportees.* In that case the Court even left open the possibility that a favourable Tribunal decision could in future affect the validity of the deportation order, but it declined to enjoin the deportation.

The inappropriateness of granting a stay under section 18.2 of the Federal Court Act is particularly marked when the decision whose review is still pending is one under subsection 114(2) of the Immigration Act. Such applications are completely undisciplined: they may be brought at any time and any number of times. One is all too familiar with the pattern of which the events in this case are but an example. A deportation order is issued and is either not attacked in the Court or is attacked unsuccessfully. Months or years go by without it being executed, during which time a subsection 114(2) application may have been made unsuccessfully or none may have been made. Eventually the deportee is advised that he will be removed on a certain date. Thereafter a subsection 114(2) application is made. Either it is dismissed just before the scheduled departure or it has not yet been determined. An application for leave and for judicial review of the subsection 114(2) decision is launched and a stay of removal is sought. Presumably it is because deportation is not legally dependent on the proper disposition of such applications that no restrictions are placed in the Act on their timing and frequency. While the handling of subsection 114(2) applications requires fairness, the decision is a discretionary one of the kind which the Minister may make either before or after the removal of a person having no legal right to be in Canada. As long as his discretion is exercised on compassionate or humanitarian grounds he may at any time recommend the exemption of any person from any regulation or otherwise facilitate his admission. This is a far ranging power which exists quite independently of the deportation process and neither is dependent on the other. It is true that as a practical matter if a person applies in a timely manner for exemption from the requirement that he must apply for permanent residence from outside Canada, and if it should happen that the Minister exercises his discretion to that end prior to the applicant being deported under an outstanding valid deportation order, he would not have to leave. But that cannot be translated into a legitimate intervention by the Court if in fact a subsection 114(2) application has not been dealt with prior to his lawfully ordered departure.

It has been suggested that a stay must be granted or otherwise the Court"s power to review the humanitarian and compassionate grounds application may be rendered

"nugatory". I am unable to understand why this should be so in the normal case. For example, it will still be just as possible for a judge of this Court to review the leave application on the file pursuant to the rules, even though the applicant is back in the former Soviet Union. If leave is granted it will be possible for the application for judicial review to be heard, such hearings being based on affidavit evidence and the applicant herein having already deposed an affidavit. The Court would still be quite able to set aside the subsection 114(2) decisions. It is true that a favourable decision by the Court may be of less practical value to the applicant if he is not in the country but that does not give him the right to stay here to await it.

As mentioned earlier, there is one situation in which I accept that it would be "appropriate" for the court to issue a stay of deportation pending the disposition of an application for leave or for judicial review of a humanitarian and compassionate grounds decision: namely, where the haste of the Minister in executing the deportation order is interfering with the exercise by this Court of its functions in respect of the leave or judicial review application. This could arise, for example, if after rejection of the subsection 114(2) application, which had itself been made in a timely way, the deportee did not have a reasonable opportunity to instruct counsel and provide affidavit evidence for use in this Court in the leave and review application concerning that rejection. No such circumstances exist in the present case.

I have not certified a question for appeal in this case as I do not understand there to be any right of appeal on such applications for stays. Under subsection 82.2(1) of the Immigration Act as it read prior to the 1992 amendments there was no right of appeal on decisions of the Trial Division as to the granting of leave. The Court of Appeal held that section also to preclude appeals from decisions refusing stays pending leave applications.(See Ramnarine, May 4, 1992, A-453-92; Duggal, November 16, 1992, A-1480-92.) That Court treated the stay application as being incidental to an application for leave made under section 82.1 and as section 82.2 prohibited appeals from decisions under section 82.1 the Court of Appeal had no jurisdiction to entertain an appeal of the stay decision. All or most of this jurisprudence was available to Parliament when it adopted the present section 82.2 (S.C. 1992, c.49, s.73) yet it employed virtually the same language in that section. By the new section 83 it otherwise restricted appeals from a judgment "on an application for judicial review" (thus distinguishing them from appeals from a judgment on an application for leave, as specifically dealt with in section 82.2) to those where a question is certified. It seems unlikely that if Parliament intended to give a right of appeal in stay applications incidental to leave applications it would have left essentially unchanged section 82.2 which had been held to preclude such appeals, and instead seek to permit them by the obscure route of section 83. As the present proceeding has not yet reached the stage of judicial review (and may never if leave is not granted) the provisions of section 83 do not apply and therefore the possibility of certifying a question does not arise.

It is for these reasons that I refused a stay of deportation in this case and did not offer to certify any question for appeal.

APPENDIX II

JURISDICTIONAL BAR CASES

Seegobin v.Canada (Minister of Employment and Immigration)

(1993) 59 F.T.R. 310 (Noël J.)

This case involved an application for a stay of a deportation order pending a leave application. The applicant sought judicial review of a decision finding that there were no humanitarian or compassionate grounds on which to grant him landed status.

The Court requested that counsel submit argument on whether the Court had jurisdiction to entertain a stay application in the absence of a direct attack on the validity of the deportation order. In considering the arguments presented, the Court stated that:

Upon consideration of counsel's arguments, I am of the view that this Court lacks jurisdiction to grant the stay of a deportation order in circumstances where its validity is not in dispute.

...

Indeed, as Strayer, J. put it [in Ali v. Minister of Employment and Immigration], "the executory nature of the removal order is not legally dependent on a negative, or any, discretionary decision under subsection 114(2)".

That being so, I am of the view that the stay application cannot be entertained as it seeks a relief which this Court is not empowered to grant.

Paul et al. v.Minister of Employment and Immigration

(1993) 61 F.T.R. 111 (Noël J.)

The applicant's application for refugee status was refused. After the refusal, the applicant married and applied for landing from within Canada. It was determined that there were insufficient humanitarian and compassionate grounds to allow him to apply from within Canada. The applicant applied for leave and judicial review of this decision. He also applied for a stay of the deportation order pending the outcome of his application for judicial review.

In dismissing the stay application, Mr. Justice Noël stated:

I first heard counsel on the issue of jurisdiction and concluded that this court lacked the jurisdiction to grant a stay of the removal order in circumstances where its validity is not in dispute.

Recognizing that two opposite trends have evolved in this court on this issue, I agree with Strayer, J.'s, statement of the law in this regard as found in the case of Ali v. Minister of Employment and Immigration, unreported, November 17, 1992, 92-T-1647. The full text of that decision is as follows:

"The only order potentially under attack in the application for leave to seek judicial review is the decision of an immigration officer refusing special treatment on humanitarian and compassionate grounds. The applicant seeks a stay of removal order pending determination of that application.

It is well established that a stay may not be granted to prevent the execution of a removal order if the validity of the removal order is not in dispute. [See footnote 1]. An attack on the negative determination of a refugee claim is in effect an attack on the validity of executing a removal order which was made conditional on the refugee determination. [See footnote 2]. But an attack on the exercise of a discretion under s. 114(2) is in no way an attack on the validity of execution of a removal order. The executory nature of the removal order is not legally dependent on a negative, or any, discretionary decision under s. 114(2).

The application for a stay must therefore be dismissed."

Counsel for the applicant recognized that this decision was, on the face of it, compelling, but suggested that Strayer, J., may not have had in mind section 18.2 of the Federal Court Act, which came into force February 1, 1992, when he rendered his decision.

Section 18.2 provides:

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

This provision expressly provides the Trial Division with the power to grant interim relief in judicial review proceedings. Prior to its enactment, this power was thought to be framed upon the court's inherent jurisdiction, but was open to challenge in light of the fact that this court derives its jurisdiction exclusively from statute. Section 18.2 now provides the statutory power for the grant of interim relief which, as in the past, may be exercised with respect to matters which are legally connected to, or incidental to, the matter that is the subject of judicial review. Here, as Strayer, J., put it, "the executory nature of the removal order is not legally dependent on a negative, or any, discretionary decision under s. 114(2)".

That being so, I am of the view that the stay application can not be entertained as it seeks a relief which this court is not empowered to grant. Application dismissed.

Rajan v.Canada (Minister of Employment and Immigration)

(1994) 86 F.T.R. 70 (Rothstein J.)

The applicant sought to stay the operation of s. 32.02(1) of the Immigration Act. Specifically, the applicant wanted a court order stating that his departure order should not be deemed to be a deportation order, notwithstanding that no certificate of departure had been issued within the applicable time period. The applicant had filed an application for leave and judicial review of a negative humanitarian and compassionate decision. The Court rejected the application on the basis that it had no jurisdiction to provide the relief sought. In coming to this conclusion, the Rothstein J. stated that:

I am of the opinion that I do not have jurisdiction to grant the stay requested. To grant the stay would be tantamount to my making an order that is expressly contrary to a provision of an Act of Parliament. The stay would provide that the departure order should not be deemed to be a deportation order, notwithstanding that no certificate of departure had issued within the applicable period. I do not see how a court can issue a stay that, in effect, would change an act of Parliament.

Counsel for the applicant says that under the inherent jurisdiction of the Court and the Court's express jurisdiction under section 18.2 of the Federal Court Act, the Court does have jurisdiction to grant the stay requested. But if this argument were correct, the inherent jurisdiction or the express jurisdiction conferred upon it by Parliament under section 18.2, would enable the Court to make orders at large, without regard to its jurisdiction or the provisions of the statutes that it interprets. Subject to my comments below relating to constitutional challenges to statutes, this proposition is absolutely unacceptable. It is obvious that the courts may not ignore or change statute law. What is argued is so clearly inconsistent with the well-known roles of the courts and Parliament and our fundamental system of law, that I do not think anything more need be said.

It was suggested that there was some support for the applicant's position in Llewellyn v. The Minister of Employment and Immigration, (March 23, 1994) Court file 92-T- 2147 (F.C.T.D.) [Please see [1994] F.C.J. No. 384]. If indeed Llewellyn stands for the proposition that the Court may make an order that is contrary to an Act of Parliament, then I must respectfully disagree with it. The Court does not have the power to grant a stay of the operation of an express statutory provision.

I recognize that if there is a Charter or other constitutional challenge to a provision in an Act of Parliament or a regulation made thereunder, and the requirements for a stay are met, the Court may grant a stay of the requirement to comply with the Act or regulation. See RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. In these circumstances, the Court's role is to decide whether a law is inconsistent with the Constitution, which is the supreme law of Canada. However, this is the only basis of which I am aware that would justify the Court interfering with the requirement of compliance with an express provision of a statute or regulation. ....

Of course, the Court may grant stays from orders or decisions of inferior tribunals. Thus, if an immigration official orders that the applicant depart Canada on a specified date, the applicant may seek a stay of that order. I think this is the answer to applicant's counsel's concern that the applicant will suffer irreparable harm if she is forced to leave Canada pursuant to her deemed deportation order. If indeed she is able to satisfy the Court that there is a serious issue, that she will suffer irreparable harm and that the balance of convenience favours her if the deportation order is executed, the Court would have jurisdiction to grant a stay at that time.

Having found that there is no jurisdiction in the Court to grant a stay of the operation of subsection 32.02(1) of the Immigration Act, this portion of the stay application must be dismissed.

...

... Counsel for the applicant points out that in the case at bar, the question at issue is one of jurisdiction and is not a decision based on the merits of the stay application. However, the decision sought to be appealed is the one denying the stay. Jurisdiction for an appeal does not depend on the reasons for a stay decision. If there is no jurisdiction for an appeal of a decision on a stay application, I cannot see how there can be jurisdiction to appeal the jurisdictional component of the stay decision. For these reasons I finds that I do not have jurisdiction to certify a questions for the Court of Appeal on this stay application.

Gomes v.Canada (Minister of Citizenship and Immigration)

(1995) 91 F.T.R. 264 (McKeown J.)

The applicant requested a stay of a deportation order issued against him, to allow him to commence judicial review proceedings to set aside the decision of an immigration officer who determined that there were insufficient humanitarian and compassionate grounds to allow the applicant to remain in Canada. He overstayed his visitor authorization in Canada by more than five years and he was convicted of assault causing bodily harm and sentenced to six months in jail. The applicant served two months and was released.

In dismissing the applicant's stay application, the Court found that:

I find, first of all, that this Court does not have jurisdiction to entertain the request of the applicant. In this respect, I am in agreement with Strayer J. in Ali v. M.E.I., November 17, 1992, (unreported), Court File 92-T-1647 [Please see [1992] F.C.J. No. 1042], and Noël J. in Paul v. Canada (M.E.I.) January 29, 1993, (unreported), Court File 93-T-86 [Please see [1993] F.C.J. No. 63]. Counsel for the applicant argued that there are other decisions by this Court which do not agree with the above cases. She also argued that section 18.2 of the Federal Court Act, R.S.C. 1985 c. F-7 which came into force on February 1, 1992, permits this Court to take interim jurisdiction, however, the above noted cases were both decided

subsequent to the coming into force of section 18.2 and I am still inclined to follow them.

Despite my ruling on jurisdiction, I will examine the merits of this case. On its merits, I would also deny a stay of the deportation order as there is no serious issue here.

Diaz v.Canada (Minister of Citizenship and Immigration)

[1997] F.C.J. No. 1102, IMM-3547-97 (Rouleau J.)

This was an application for a stay of the execution of a deportation order. The applicant had been in Canada for seven years. A claim made for Convention refugee status was denied by the Refugee Board. This decision was reviewed and upheld by Justice Muldoon. The applicant subsequently married a Canadian citizen and sought immigrant status on the basis that he was married to a Canadian citizen. The request was denied and the applicant became subject to a deportation order. The Court rejected the application as follows:

I have endeavoured to find jurisdiction which would allow me to judicially review decisions that would permit me to stay this deportation order. There was no application under PDRCC which could have eventually resulted in a risk assessment. This initiative was not taken. There is no application on humanitarian or compassionate grounds submitted to the Minister suggesting that this applicant would be at risk if he returned to Peru and therefore no decision on this issue for the Court to review.

I am faced with a situation where the refugee division of the Immigration and Refugee Board found this claimant not to be credible; the decision by Muldoon, J. of this Court made a similar finding. How can I, in light of both of these determinations, accept the sworn testimony now before me alleging that he would be at risk if returned to Peru?

APPENDIX III

NO JURISDICTIONAL BAR CASES

Petit v.Canada (Minister of Employment and Immigration)

[1993] 2 F.C. 505 (T.D.) (Reed J.)

The applicant sought a stay of a removal order. The applicant has two children. She claimed refugee status. She was denied landing on the basis that there were insufficient humanitarian and compassionate grounds on which to let her apply for landing, on the ground that she was married to a Canadian citizen.

In granting the stay, the Court held that:

The first issue raised by this case is whether there is any jurisdiction in this Court to issue a stay of a removal order in a case such as the present. There are clearly divergent views on this subject held by different members of this Court. Mr. Justice Strayer in Ali v. The Minister of Employment and Immigration (unreported, November 17, 1992, 92-T-1647), stated that such jurisdiction did not exist. The full text of that decision is as follows:

The only order potentially under attack in the application for leave to seek judicial review is the decision of an immigration officer refusing special treatment on humanitarian and compassionate grounds. The applicant seeks a stay of a removal order pending determination of that application. It is well established that a stay may not be granted to prevent the execution of a removal order if the validity of the removal order is not in dispute. 1 An attack on the negative determination of a refugee claim is in effect an attack on the validity of executing a removal order which was made conditional on the refugee determination. 2 But an attack on the exercise of a discretion under subsection 114(2) is in no way an attack on the validity of execution of a removal order. The executory nature of the removal order is not legally dependent on a negative, or any, discretionary decision under subsection 114(2).

The application for a stay must therefore be dismissed.

[Footnotes omitted]

This reasoning was followed by Mr. Justice Noël in Nello Paul and Tina Louise Paul v. The Minister of Employment and Immigration (unreported, January 29, 1993, 93-T-86).

At the same time, other decisions of this Court have held that stays of deportation orders can be issued when leave to appeal a negative decision pursuant to subsection 114(2) is under review. [See Note 1 below] This is based on the wording of section 18.2 of the Federal Court Act which section came into force on February 1, 1992:

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

I note that this provision does not merely state that the Court may suspend or alter a decision or order which is before it on judicial review pending final disposition of the application. It is more broadly framed than that. It states that the Trial Division "may make such interim order as it considers appropriate pending ...".

Prior to the enactment of that amendment, it was clear from a number of decisions, that the Court had jurisdiction to grant stays to protect the integrity of proceedings which were before the Court. The Court's authority to grant stays of tribunal orders is discussed in Sgayias, Kinnear, Rennie and Saunders, Federal Court Practice 1990 at p. 259:

Where a stay is sought against the proceedings or order of a tribunal or administrative body, a preliminary question to be considered is whether the Federal Court has the authority to stay the proceedings of the tribunal or administrative body. Section 50 does not provide the power to stay such proceedings. However, in N.B. Electric Power Commn v. Maritime Electric Co., [1985] 2 F.C. 13, 60 N.R. 352 (Fed. C.A.), leave to appeal to S.C.C. refused (1985), 64 N.R. 240 (S.C.C.), the Court of Appeal held that it had the implied jurisdiction to stay such proceedings pending an appeal of a tribunal's decision. Any question as to the scope of the ruling in the case has been removed by the decisions of the Court of Appeal in Yri-York Ltd. v. A.G. (Can.), [1988] 3 F.C. 186, 30 Admin. L.R. 1, 21 C.P.R. (3d) 161, 16 F.T.R. 319 (note), 83 N.R. 195 (C.A.), and Toth v. Can. (Min. of Employment & Immigration) (1988), 6 Imm. L.R. (2d) 123, 86 N.R. 302 (Fed. C.A.).

Section 18.2, as noted, is more broadly framed that merely according the Court authority to preserve the effectiveness and the integrity of the proceedings before it. Section 18.2 appears to be modelled on section 4 of the Ontario Judicial Review Procedures Act, R.S.O. 1990, c. J-1. A comparable provision is also found in the United Kingdom, Rules of the Supreme Court, Ord. 53 r. 3(10)(a). See, for example, R. v. Licensing Authority established under Medicines Act 1968, Ex parte Smith Kline & French Laboratories Ltd. (No. 2), [1990] 1 Q.B. 574 (C.A.); R. v. Secretary of State for the Home Department and Another, Ex parte Herbage, [1987] 1 Q.B. 872 and Wade, Administrative Law (6th ed, 1988) at 671 ff.

The rationale behind provisions such as 18.2 is to grant the court authority to preserve the status quo [See Note 2 below] when judicial review is being sought. Prior to express authority being given to exercise such relief, there was a reluctance on the part of courts to interfere with the statutory duty of a government official or minister. There was for many years a reluctance generally to grant injunctions against the crown. Section 18.2 and provisions like it, such as section 4 of the Ontario Judicial Review Procedures Act, give the court authority to grant interlocutory injunctions in the context of a judicial review proceeding in order to preserve the status quo.

[Footnotes omitted]

The only reason an applicant seeks a subsection 114(2) ruling is to allow him or her to stay in Canada and apply for landing here. If the immigration officer's decision with respect to the genuineness of the applicant's marriage had been different, and her subsection 114(2) application consequently allowed, there would have been no order issued requiring her to leave the country on February 26. Had a decision with respect to the applicant's marriage been made in sufficient time to allow her to appeal that decision and had leave been granted, it is unlikely that the order requiring her to leave the country would have issued. The execution of the removal order is intimately bound up with the subsection 114(2) application.

While I recognize that some of my colleagues have a different interpretation of section 18.2, I cannot conclude that I am precluded from granting the relief sought because there is no jurisdiction to do so. The difference of views which exist in the Trial Division is clearly an issue upon which it would be desirable to have a decision by the Federal Court of Appeal.

In any event, since in my view I have jurisdiction pursuant to section 18.2, to grant the order sought, the question becomes whether such an order should be given in this case.

Bal v.Canada (Minister of Employment and Immigration)

[1993] 2 F.C. 199 T.D. (Noël J.)

The applicant was a Canadian citizen who adopted his two nephews (age 10 and 16). The nephews were aliens and were the subject of a deportation order. The applicant's application to sponsor the boys for permanent residence on humanitarian grounds was rejected. An application for leave to bring an application for judicial review of a decision denying special treatment on humanitarian and compassionate grounds was pending. The applicants sought a stay of a removal order pending the determination of that application. At issue was whether the court had jurisdiction to grant a stay of a removal order.

The Court granted the stay based on the following reasons:

I, and others, have previously held that this Court does not have the jurisdiction to issue a stay in the circumstances of this case. However, other judges of this Court have expressed the opposite view. There is obviously some uncertainty as to whether or not this Court has jurisdiction to stay the deportation order where the validity of the order is not in dispute. If I could, I would order a stay of the deportation order pending the determination of the jurisdictional issue by the Court of Appeal. I would do so because, if I have the discretion to grant a stay, this is clearly a case where it ought to be exercised and it would be in the interest of justice to preserve the status quo pending the determination of the issue. However, I have been unable to identify any procedural means by which this issue can be submitted to the Court of Appeal in this instance, and indeed, it may be that the question is wholly beyond the purview of the Court of Appeal.

[Footnotes omitted]

I will therefore stay the execution of the removal orders issued against the children pending the disposition of their leave application and, if leave is granted, until final disposition of their judicial review application.

Llewellyn v.Canada (Minister of Employment and Immigration)

(1994) 74 F.T.R. 221 (Jerome A.C.J.)

This was an application for judicial review of a removal order. The applicant came to Canada in December, 1990 and received visitor's status until August 1991. Following the expiry of that status, he did not obtain any further extensions but remained in Canada. In July 1992, he married a permanent resident of Canada. Subsequently, the application of the applicant and his wife that she be allowed to sponsor the applicant's inland application for permanent residence based upon humanitarian and compassionate grounds was refused. The applicant filed this application seeking relief by way of a stay of the removal order as well as a suspension of the provisions of the said section 113. Pursuant to s. 113, the departure order was to be transformed into a deportation order a few days before the judicial review hearing. The main issue was whether the court had jurisdiction to grant the stay of a removal order where the validity of the order itself was not under attack.

In granting the stay, the Court stated:

Two questions must be resolved. First, does this Court have jurisdiction to grant the stay of a removal order where the validity of the order itself is not under attack? ... Whether the Court has jurisdiction to stay the effect of a removal order, where the validity of the order itself is not under attack, remains unclear. Two divergent courses of reasoning have developed.

The genesis of the notion that the Court only has jurisdiction to issue a stay if the validity of the removal order itself is being impugned can be traced back to the Federal Court of Appeal decision in Lodge v. Minister of Employment and Immigration, [1979] 1 F.C. 775. In that case, the appellants applied to the Trial

Division for an injunction to prevent execution of the deportation orders issued against them pending the disposition of their complaint under the Canadian Human Rights Act, S.C. 1976-77, c. 33, that the deportation proceedings in their case amounted to a discriminatory practice. The Court dismissed the application on the grounds that an injunction will only lie against a public authority to restrain the commission of an act that is ultra vires or otherwise illegal. LeDain, J. writing for the Court stated at pp. 784-5:

"So long as the validity of the deportation orders in the appellants' case has not been successfully challenged it cannot be said that the Minister would be exceeding his statutory authority or otherwise acting contrary to law in executing them. The Court cannot make a finding that there has been a discriminatory practice within the meaning of the Canadian Human Rights Act. The jurisdiction to make such a finding has been confided to the specialized agency and tribunals provided for by the Act. Such a finding involves a question of fact to be determined on the basis of an investigation by the Commission and a hearing by a Human Rights Tribunal. Whether such a finding would technically affect the validity of the deportation orders, or whether it would merely give rise to the relief provided by section 71, is another question. The point is that the Court must treat the deportation orders as presently valid and the Minister as under a statutory duty to execute them.

. . . Counsel were unable to cite to us any authority, and I have not been able to find any, to support the use of injunction to restrain the performance of a statutory duty on the ground that such performance may have an adverse effect on some right which the applicant seeks to assert in another forum. I do not think that such a use of injunction can be recognized as a matter of principle. It would be tantamount to a general power to suspend the execution of administrative decisions in cases judged to be equitable. The Court does not have that power, even with respect to decisions that are the subject of review before it."

Similarly, in Donkor v. Minister of Employment & Immigration (1988), 7 Imm. L. R. (2d) 165, the appeal to the Federal Court of Appeal was dismissed on the grounds that, in the absence of express legislation to the contrary, a Court does not have the right to stay the execution of an executory decision which was not made by it, which it does not have the power to review and the validity of which is not being challenged. Pratte, J.A. also concluded that a Court could not issue an interlocutory injunction to maintain the status quo in a proceeding commenced in another Court.

In Asumadu v. Minister of Employment & Immigration (1988), 113 N.R. 150, the appellant also sought a stay pending a review under what is now section 114(2) of the Immigration Act. Writing separately, the three members of the Federal Court of Appeal upheld the Trial Division's refusal to order the stay. In his reasons, Marceau J.A. relied on the decision of the Court in Donkor, which, in his opinion, clearly established that a stay could not be ordered unless the removal order itself was impugned. Of significance in the Asumadu decision, however, are the reasons of Hugessen, J.A. who, although he agreed the appeal should be dismissed, came to that conclusion for different reasons. His Lordship states at p. 152:

"Though I consider that the trial judge was right to deny the injunction requested, I do so not on grounds of jurisdiction but of law: so long as the removal order remained valid and was not challenged, the Court should not prohibit its execution. There is no doubt that the Court has jurisdiction under s. 18 of the Federal Court Act to issue an injunction against the Minister; in the circumstances of the case at bar, however, it properly refused to do so.

(emphasis added)

The latest pronouncement of the Court of Appeal in this respect is the decision of Akyampong v. Minister of Employment & Immigration (1992), 18 Imm. L.R. (2d) 18. There, the applicants sought a stay of execution of an exclusion order which had been made against them following a negative determination at the conclusion of a credible basis hearing. In a very brief decision, rendered after a telephone conference call with the parties, Hugessen, J.A., appears to take a different position from the one articulated in Asumadu:

"At the opening of the hearing of the applications for stay we indicated to counsel that we were all of the view that, failing an attack on the exclusion order, the Court lacked jurisdiction to grant a stay of the execution of such order. Counsel then applied to amend the originating section 28 notices and, after hearing from counsel for the respondents, we concluded that no prejudice would result to the respondents from such amendment which was accordingly allowed.

Following the amendment to the originating notices, a stay of the execution of the exclusion order was granted in each case."

There are a number of Trial Division decisions which have followed this line of reasoning. (See Osei v. Minister of Employment & Immigration (1988), 8 Imm. L.R. (2d) 69; Ali v. Minister of Employment & Immigration (November 17, 1992, unreported, 92-T-1647 [Please see [1992] F.C.J. No. 1042]) and, Nello Paul and Tina Louise Paul v. Minister of Employment & Immigration (January 29, 1993, unreported, 93-T- 86) [Please see [1993] F.C.J. No. 63].)

However, an entirely divergent position has been taken by both levels of this Court based on the implied authority necessary for the Court to fully exercise the jurisdiction which has been expressly conferred upon it by statute. This was the principle applied by the Court of Appeal in New Brunswick Electric Power Commission v. Maritime Electric Company Limited and National Energy Board, [1985] 2 F.C. 13. In that case, the respondent National Energy Board rendered a decision that the offer made by the applicant New Brunswick Electric Power Commission to the respondent Maritime Electric Company Limited respecting the sale of interruptible energy, did not comply with the export licences held by the Power Commission. The Power Commission's application to the Court of Appeal for leave to appeal the Board's decision was granted and the applicant then moved for a stay of execution of the Board's order pending disposition of that appeal.

The Court concluded it had the implied jurisdiction to stay the operation of an order of an administrative tribunal where an appeal was pending and the operation of the order would have the effect of rendering that appeal nugatory. In the Court's view, its jurisdiction could be implied from the expressly conferred jurisdiction to hear and determine the appeal.

The case of Toth v. Canada (Minister of Employment & Immigration) (1988), 6 Imm. L.R. (2d) 123, involved an application to stay execution of the deportation order issued against the applicant pending a decision on leave to appeal a decision of the Immigration Appeal Board. Heald, J. stated at p. 126:

"This Court decided in the case of N.B. Electric Power Comm. v. Maritime Electric Co., that in cases where there exist statutory provisions conferring a right to appeal against the order of a tribunal, that circumstance together with the provisions of subs. 30(1) [of the Federal Court Act as it read at the time], confer an implied jurisdiction on the Federal Court of Appeal to stay the operation of that order where the appeal would otherwise be rendered nugatory.

. . .

Counsel for the respondent sought to distinguish the N.B. Electric Power case on the basis that the case at bar arises under the Immigration Act where Parliament has specifically addressed the question of stay in s. 51 of the Act . . . It was his submission that in so providing for a stay in particular circumstances, Parliament has, by implication, removed any implied jurisdiction to grant stays in circumstances not envisaged by s. 51. I am unable to accept this view of the matter. In the absence of express words by Parliament excluding our implied jurisdiction and in view of the powerful rationale for such implied jurisdiction as articulated by Mr. Justice Stone [in N.B. Electric Power], I am unable to conclude that the Court's implied jurisdiction to grant a stay under the Immigration Act in all other circumstances not encompassed by the provisions of s. 51 is ousted. It is not without significance, in my view, that in a recent decision, Mohammad v. Canada (Minister of Employment & Immigration) (1988), 86 N.R. 300 (Fed. C.A.) this Court assumed jurisdiction to grant a stay of the proceedings at an inquiry being held under the Immigration Act, 1976, pending an appeal to this Court from a judgment of the Trial Division dismissing an application for certiorari and prohibition. For all of the above reasons, I have concluded that this Court has jurisdiction to grant the relief asked for in this motion."

(emphasis added)

The rationale relied upon by the Federal Court of Appeal in the above two decisions was also applied in Yri-York Ltd. v. Canada (A.G.), [1988] 3 F.C. 186.

In Bains v. Canada (Minister of Employment & Immigration) (1990), 109 N.R. 239 (F.C.A.), a stay of a deportation order was granted pending the outcome of the application for leave to commence judicial review proceedings pursuant to section 28 of the Federal Court Act. Similarly, in Yhap v. Canada (Minister of Employment & Immigration (1989), 9 Imm. L.R. (2d) 69, the Trial Division of this Court granted a stay of a deportation order until the applicant's motion for leave to commence a section 18 proceeding was dealt with. In neither case was the validity of the deportation order under attack.

The specific question was also considered by the Court of Appeal in Benhene v. Minister of Employment & Immigration (92-A-2193, April 13, 1992, unreported [Please see [1992] F.C.J. No. 322]), again an application for a stay of a removal order pending the outcome of an application for leave to commence proceedings under section 28 of the Federal Court Act. The issue before the Court was whether the Trial Division or Appeal Division of this Court had jurisdiction to hear the application in light of amendments to the Act effective February 1, 1992. In concluding that the Court of Appeal had jurisdiction over the matter, Decary, J. also made the following comments:

"I have not been persuaded that the amending legislation has had the effect suggested by the respondent. Where as here, the removal order is being challenged not directly for defects of its own but indirectly, as having become executory because of the negative determination of the claim by the [Immigration and Refugee] Board, the real issue is not whether the removal order is valid - it is, indeed valid, it was valid when it was made in a conditional form and it remained valid when, by the operation of the law, it became executory as soon as the Board made its negative determination - but whether the Board's decision which gave it its executory character, was properly reached.

In these circumstances, the removal order is properly before the Appeal Division of this Court and is part of the removal proceedings the stay of which this Court has jurisdiction to grant."

Thus, no case provides a clear definitive statement of the law. Although Marceau, J.A. in Asumadu held that an attack on the validity of the removal order was a prerequisite to the Court's jurisdiction to grant a stay, the decision of Hugessen, J.A. in that case indicates otherwise. The Benhene decision appears to provide a decisive statement on the question but it was not considered or followed in Akyampong, where a different conclusion was reached.

Furthermore, I am not satisfied that the fact situations in cases such as Lodge and Donkor are parallel to those encountered by the Court in an application for the stay of a removal order pending the outcome of some other proceeding already commenced in this Court. In this respect, I agree with the position taken by Reed, J. in Hamilton v. Minister of Employment & Immigration, [1991] 1 F.C. 3, wherein, after examining the jurisprudence, she reached the following conclusions at pp. 264 and 266:

"In the present case, as was also the case in Toth, Bains, and Yhap, the deportation order which it is sought to stay is intimately connected to the relief sought from this Court. . . . In such circumstances, counsel may very well be right in suggesting that the principles enunciated in Toth apply and that the Court has authority to issue a stay of deportation pending the outcome of the s. 18 application. Certainly the Court did so in Yhap. And the Court of Appeal followed a similar approach in the Bains case.

. . .

On reviewing the jurisprudence, it seems to me clear that the Lodge decision does not address the issue. The claim for a stay in that case was based on the assertion

that such was necessary in order to allow the applicant the opportunity to pursue a claim before the Human Rights Commission. It was not connected to a proceeding pending before this Court. The present application seeks a stay of deportation until the application for a section 18 review is disposed of. That s. 18 application is before this Court and is part of the present file. It is similar to the situations which existed in both Bains and Yhap.

I find her reasoning particularly compelling in this case where leave to commence a section 18 application has been granted. Thus, one of the principal elements of whether a stay should be granted, whether there is a serious question to be tried, has already been determined in the applicant's favour by this Court. Accordingly, as Decary, J.A. stated in Benhene, although the validity of the deportation order itself is not impugned, there is some question as to whether the immigration officer's conclusion that there are no humanitarian and compassionate grounds was correct. That matter, being now before this Court, should be seen to confer upon it the implied jurisdiction to suspend the operation of a removal order until judicial review takes place.

Finally, I turn to the effect of section 18.2 of the Federal Court Act, which came into effect February 1, 1992:

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.

This provision would appear to give the Court the expanded jurisdiction which Pratte, J.A. held was necessary before a stay could be granted, when he stated in Donkor at p. 166:

"In the absence of express legislation to the contrary, a Court does not have the right to stay the execution of an executory decision which was not made by it, which it does not have the power to review and the validity of which has not been challenged before it."

See also Reed, J. in Petit v. Minister of Employment & Immigration (February 28, 1993, File No. IMM-352- 93, unreported [Please see [1993] F.C.J. No. 187]):

"The rationale behind provisions such as 18.2 is to grant the court authority to preserve the status quo when judicial review is being sought. Prior to express authority being given to exercise such relief, there was a reluctance on the part of the courts to interfere with the statutory duty of a government official or minister. There was for many years a reluctance generally to grant injunctions against the crown. Section 18.2 and provisions like it, such as section 4 of the Ontario Judicial

Review Procedures Act, give the court authority to grant interlocutory injunctions in the context of a judicial review proceeding in order to preserve the status quo.

. . .

For these reasons, I am satisfied that the Court has jurisdiction to grant a stay of the execution of the removal order by virtue of the Federal Court Act and the inherent jurisdiction of the Court pursuant to that Act and that this is an appropriate case for such an order."

...

... several questions of general importance arising here which should be considered by the Court of Appeal, I hereby certify the following questions for appeal under s. 83(1):

...

2. Does the court have jurisdiction to stay a removal order where the validity of that order is not under attack?...

Robinson v.Canada

(1994) 74 F.T.R. 316 (Gibson J.)

In this case, the applicant sought a stay of execution of a deportation order. She was married with three children and was a "stay-at-home-mom". Her husband was a full status Canadian. She argued that to deport her would cause irreparable harm to the family unit. The Court held that fragmentation of the family unit did not constitute irreparable harm and refused to grant the stay.

In dealing with the issue of jurisdiction, the Court stated:

... on the issue of jurisdiction, I am satisfied that despite the lack of a direct attack on the deportation order itself, it is appropriate for this Court to assume jurisdiction. I recognize that judges of the Trial Division of the Court are split on this issue and there is no clear direction to the Trial Division from the Federal Court of Appeal. Based upon my reading of the law, I favour the assumption of jurisdiction in circumstances such as are reflected in this case.

...

If the law had intended to place maintenance of the family unit above the risks and hardships associated with the fact situation that is before me, Parliament could have so provided. Parliament chose not to do so.

I must, therefore, assume that the law contemplates, in circumstances where options are real, that deportation can result in the break-up of a family. I conclude

that the fact situation before me does not represent irreparable harm to the applicant.

Samokhvalov v.Canada (Minister of Citizenship and Immigration)

(1994) 76 F.T.R. 56 (MacKay J.)

The applicants were a married couple with two children. The entire family are Russian citizens. A third child was born in Canada. The wife and two children were denied refugee status and a deportation order was issued against them. The applicants brought an application for judicial review of a negative humanitarian and compassionate grounds decision that was reached against them. They sought a stay of a deportation order pending the outcome if the judicial review application.

Mr. Justice MacKay granted the stay. In dealing with the issue of jurisdiction, the Court stated the following:

Counsel for the respondent raised the issue of the Court's jurisdiction to deal with the application in light of decisions such as Paul et al v. M.E.I. (Unreported, Court file 93-T-86, January 29, 1993 (F.C.T.D.) per my colleague Noël J. [Please see [1993] F.C.J. No. 63]), and Ali v. M.E.I. (Unreported, Court file 92-T-1647, November 17, 1992 per my colleague Strayer J. [Please see [1992] F.C.J. No. 1042]) where the Court held it had no jurisdiction to stay a removal order when the matter on which judicial review is sought is a negative humanitarian and compassionate determination and not the validity of the deportation or removal order under which removal is to be effected. When asked whether he had any comment on the Court's jurisdiction pursuant to s.18.2 of the Federal Court Act as amended S.C. 1990, c.8, s.5 effective February 1, 1992, counsel declined to comment. That section provides:

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

In my view s.18.2 does confirm jurisdiction of this Court, as a matter of discretion to be exercised in a proper case, to stay removal of one who has made application for leave and for judicial review under the Immigration Act, where the issue raised by the application is a serious one, where irreparable harm will be caused to the applicant if the stay not be granted but subsequently leave and judicial review is granted and the ultimate outcome of reconsideration by the tribunal whose decision is questioned is favourable to the applicant, and where the balance of convenience favours the grant of a stay. It is further my view that while the validity of the

exclusion order, under which removal is to be effected, is not in issue, its execution arises in this case as a result of a negative humanitarian and compassionate review and that negative determination is the subject of the application for leave and for judicial review. I accept that, as stated by Strayer J. and followed by Noël J., "the executory nature of the removal order is not legally dependant on a negative, or any, discretionary decision under subsection 114(2)", but the actual execution of the order may depend upon a negative humanitarian and compassionate determination. Not every case will warrant intervention of the Court by grant of a stay order but where there is clearly a serious issue before the Court, and irreparable harm is established, the balance of convenience may well favour the applicant who seeks an interim stay until the serious issue can be determined.

I conclude that, in my opinion, the Court has jurisdiction to grant a limited stay as an interim order pending determination of a serious issue before the Court, pursuant to s.18.2 of the Federal Court Act. Whether that jurisdiction is to be exercised is a matter within the Court's discretion in any case.

Calderon v.Canada (Minister of Citizenship and Immigration)

(1995) 30 Imm. L.R. (2d) 256 (F.C.T.D.) (Simpson J.)

This was an application for a stay of a departure order on humanitarian and compassionate grounds. There had been a previous application for a stay pending judicial review with regard to the same departure order. The judge had determined that there was no indication of irreparable harm and refused the initial stay application. The respondent argued that as a result of the first application, this application was res judicata.

Madame Justice Simpson stated:

... the tests for injunctive relief are significant guideposts in the decision-making process when a stay is sought. They are not iron shackles. Ultimately, I must assess all the circumstances and do what is just. The circumstances have much changed. In the Second Application the Respondent has conceded the serious issue. It has consented to leave and has indicated that, if leave is granted, it will consent to a redetermination of the H and C application.

In view of this, I will hear argument about whether a stay should be granted in the context of the Second Application. However, I will not reconsider the issue of irreparable harm. Accordingly, for the purposes of argument about a stay today there is no issue of irreparable harm. However, if I decide that there is some other important issue that makes a stay the right decision then I will grant a stay, even though there is no irreparable harm.

That wouldn't be normal, but I would do it because, as I said, I do not view the tests of irreparable harm, serious issue and balance of convenience as shackles. I

think they are guideposts; very strong guideposts, but in a situation such as the one we have today, where it is admitted that there was a problem with the H and C application, and where there is a question of breaking up a family with a very young child, I may grant the stay in the absence of irreparable harm.

I will therefore hear submissions about why, quite part from irreparable harm, I should or should not grant the stay.

Muñoz v.Canada (Minister of Citizenship and Immigration)

(1995) 30 Imm. L.R. (2d) 166 (F.C.T.D.) (Muldoon J.)

The applicants were a married couple with two small children. Due to a refugee claimant backlog they were never contacted by the immigration department. As a result they withdrew their claim to refugee status and made an application for permanent residence. No hearing was conducted. After spending 9 years in Canada, they were contacted by the immigration department with respect to their deportation order. This was an application for the stay of the deportation order pending the determination of the humanitarian and compassionate grounds of their application.

In coming to this conclusion, the Court stated that:

The respondent's counsel not only challenged this Court's jurisdiction to entertain this stay application, but she also cited in support of the proposition the case of Shchelkanov v. M.E.I., (1994) 76 F.T.R. 151. It is often assumed by many jurists of great learning that this decision of Mr. Justice Strayer strips this Court of jurisdiction in applications for stay of removal unless the legality of the removal order be directly challenged. This judge, as recently as August 28, invoked that decision in the case of Owusu v. M.C.I., IMM-2247-95. There the applicants had been unsuccessful on every assessment which they could have from PDRCC to h. & c., but they did have those assessments unlike the applicants here. No stay, accordingly, was granted but the Court, on the basis of the Shchelkanov case, inter alia, declined to strip itself of jurisdiction "because then the Court could not act in some unforeseen, egregious circumstance". (Today, that line could seem, to the credulous, to be clairvoyant, but this judge never claims clairvoyance.) What is revealed here is indeed egregiously unjust. Thankfully, the Court has the jurisdiction to deal with it.

Sometimes, perhaps too rarely, judges who apprehend that the law's strictness will lead to certain and obvious injustice, invoke this residual jurisdiction to permit an

out-of-the-usual adjudication, as did Madam Justice Simpson in her interesting, intellectually stimulating and unusual judgment in Calderon v. M.C.I., IMM-5067-94, a decision rendered by her on June 16, 1995, [1995] F.C.J. No. 955.

....

There is no doubt a considerable latitude accorded to the Minister in the operation of subsection 114(2) of the Act, but it would be quite absurd and deleterious to the law's due administration to take, or to be accorded, such latitude as would defeat Parliament's salutary intent in enacting that provision.

So in the extreme circumstance evinced here, where the applicants simply cannot obtain a highly likely favourable h. & c. review in a timely way, the Court will and does exert its jurisdiction to prevent injustice, and to rescue the better administration of this law of Canada, subsection 114(2) of the Immigration Act. Be it noted that the Court and the Constitution both refer to the better, not just the due, and certainly not the crippled, administration of this law of Canada.

Owusu v.Canada (Minister of Citizenship and Immigration)

[1995] F.C.J. No. 1166, IMM-2247-95 (Muldoon J.)

This was an application for judicial review of a negative decision of an immigration officer. The applicants, a husband and wife, and citizens of Ghana, claimed Convention refugee status. Their claim was rejected, as was their appeal against that decision. Subsequently, their case was reviewed in Refugee Claimants class proceedings, but those proceedings yielded negative results. As a result, a deportation order was issued against them. However, the applicants made an application on humanitarian and compassionate grounds that they be exempted from the requirement to apply for landing outside of Canada but that application was unsuccessful. Without attacking the validity of the deportation order, the applicants sought a stay of execution of the deportation order pending determination of the present judicial review proceedings. The respondent's counsel raised a preliminary objection to the lawfulness of the application for a stay or of the granting of it.

The Court dismissed the application on the basis that:

The court would not grant a stay of deportation pending determination of a judicial review where the judicial review was not an attack on the deportation order, but rather on the Minister's refusal to make a discretionary decision in the applicants' favour. In this case, the deportation order was unconditional and since no judicial review was ever sought with respect to that decision, it remained and must be treated as a valid order. It was, therefore, not appropriate to stay the execution of a valid order made by an adjudicator on the basis that the court had before it an application for judicial review of the alleged failure of the Minister to make a decision under section 114(2) of the Immigration Act, when the proper making of the latter was not a legal precondition for the execution of the former

....

Every paragraph of Mr. Justice Strayer's decision in Shchelkanov is important in its own right, and also is of significant import in this present case. One may note that Strayer J. did not suggest any lack of jurisdiction... Rather, in these circumstances, the Court held that the applicants have no right to obtain such a stay of deportation.

A decision with the same result, but based on the notion of lack of jurisdiction, was rendered by Mr. Justice Noël on January 29, 1993, prior to the above noted decision by Strayer J. It is Paul & al. v. M.E.I., (1993) 61 F.T.R. 111. Mr. Justice Noël obviously could not rely on the Shchelkanov decision, but did base himself on an earlier decision by Strayer J., that is, Ali v. M.E.I. to which Strayer J. referred in Shchelkanov. The decision in Ali did not purport to deny this Court's jurisdiction. It's ratio is merely:

* * * The executory nature of the removal order is not legally dependent on a negative, or any, discretionary decision under s. 114(2).

In adopting that ratio, Mr. Justice Noël seemed to conclude that Strayer J. had found a lack of jurisdiction to stay deportation in these circumstances, but, of course he could not then know of the Shchelkanov decision.

Another decision with the same result, also based on the notion of lack of jurisdiction was rendered by Mr. Justice McKeown on February 1, 1995, but he made no mention of the Shchelkanov decision by Strayer J., only the Ali decision by Strayer J. The purport of Ali v. M.E.I. is noted above. Mention was made of Paul & al. v. M.E.I. in which Noël J. invoked Ali, but, as noted, Ali does not impugn jurisdiction any more than did the Shchelkanov decision.

In terms of whether this Court's jurisdiction to give relief to the applicants, or whether they simply have no right to a stay in these circumstances, is of little cheer to the applicants. This Court, in application of the law, will not stay their deportation.

It is, it seems to this judge, preferable not to strip the Court of its jurisdiction because then the Court could not act in some unforeseen, egregious circumstance. It is not necessary to strip the Court of its jurisdiction; and it was not called for in Ali and Shchelkanov.

The applicants are, however, authorized hereby to maintain their leave application despite their having been removed from Canada. Perhaps they will do what they should have done all along, and apply "on the up and up" from outside Canada. This Court has nothing against them: they seem to be decent people who could become valued Canadian citizens, but they must achieve their objective, if at all, according to law.

In the result the Minister's preliminary objection is allowed and the applicants' application for a stay of the deportation order is dismissed.

Ponnampalam v.Canada (Minister of Citizenship and Immigration)

(1995) 30 IMM. L.R. (2d) 178 (F.C.T.D.) (Muldoon J.)

This was an application for stay of a deportation order. The applicant, her mother and siblings all came to Canada at different times and each claimed Convention refugee status. Their refugee claims were heard by different panels. While the applications of the first group of siblings, together with that of the applicant's mother and another sibling who came after the applicant were allowed, that of the applicant was rejected. Leave to challenge the decision rejecting her claim was refused. A deportation order was issued against the applicant. She commenced a proceeding seeking a new humanitarian and compassionate assessment on August 29, 1995, and brought an application for stay of the removal order pending the outcome of the new humanitarian and compassionate assessment. At the time of this application, the applicant was in school and her mother was sponsoring her. She argued that deportation would cause irreparable harm to her.

The Court granted the stay and stated the following:

... it is widely assumed by some learned scholars in the law that Mr. Justice Strayer held that this Court had no jurisdiction to make such a stay of a valid deportation order. An examination of that case does not prove the assumption to be correct. Indeed, what the judge is saying there is that not every applicant is entitled to a stay and that is a matter for adjudication and that invokes the jurisdiction of the Court. Mr. Justice Strayer did not say that the Court has no jurisdiction. On that basis, because the Court apprehends that there would be a miscarriage of justice or of the due administration of the law; that section 3(c) and section 114(2) of the Immigration Act are important and have to be upheld; and are not to be rendered to nugatory because after all this Court is here to see to the better administration of those laws of Canada not just the due administration and certainly not the crippled administration of the those laws of Canada, but to come to the rescue of those laws of Canada which are important and are solemnly enacted by Parliament, the Court will indeed then stay the operation of this deportation order.

There is some unease on the part of the Court because there is much jurisprudence on the side of the Minister but on a balance the Court will do what it thinks is just, will rescue the due administration of those provisions of the Immigration Act from being rendered nugatory and because the Court finds there will be irreparable harm. So the deportation order ... is stayed ... until the applicant can have a fair and objective humanitarian and compassionate assessment of her situation.

Inthavong v.Canada (Minister of Citizenship & Immigration)

(1995) 30 Imm. L.R. (2d) 85 (F.C.T.D.) (Muldoon J.)

The applicant was born in Laos in 1971 and entered Canada in 1985. He did not become a Canadian citizen. He was involved in violence while in high school, was expelled for fighting and convicted of assault. He was convicted of mischief and theft in 1989, breach of probation in 1990, and two more counts of mischief and possession of a weapon in 1991. In September 1990, he and friends from his street gang were vandalizing a truck and attacked a third party who attempted to intervene. The applicant beat the victim with a baseball bat while his friends held the victim down, until the victim was shot by another friend of the applicant. The victim was not a member of the applicant's gang or a rival gang. The applicant was convicted of aggravated assault and sentenced to five years.

The Minister made an order under s. 53(1)(a) based on the opinion that the applicant constituted a danger to the public. An adjudicator made a conditional deportation order under s. 32.1(2), and the appeal division dismissed the applicant's appeal, despite the claim for refugee status. The applicant sought to quash the deportation decision based on the finding that the applicant was a danger to the public.

In dismissing the stay, Justice Muldoon made the following comments regarding the ability of the Court to grant the stay:

Granting or withholding a stay is discretionary: Da Costa v. Canada (Minister of Employment & Immigration) (1993), 19 Imm. L.R. (2d) 295 (Fed. T.D.) (Gibson J.); Idemudia v. Canada (Minister of Employment & Immigration) (1993), 64 F.T.R. 296 (Rothstein J.). The usual finding is to the effect that the applicant is not entitled to a stay: Shchelkanov v. Canada (Minister of Employment & Immigration) (1994), 76 F.T.R. 151, paras. 6 through 12. This applicant surely knew that his misconduct put him in jeopardy of punishment or deportation. One may therefore notice the decision of Madam Justice Reed in Burrows v. Canada (Minister of Citizenship & Immigration) (May 8, 1995), IMM-1087-95 (Fed. T.D.) in which the court held that repeated offending does the opposite of inducing the court to exercise its discretion in the applicant's favour. Why should this applicant believe that he is entitled to an extraordinary exercise of discretion when compared with long and hard-working parents of a happy well-established, contributing family (Muoz v. Canada (Minister of Employment & Immigration), IMM-2243-95 [reported at (1995), 30 Imm. L.R. (2d) 166 (Fed. T.D.)]), or compared with a good student sponsored by her mother, who along with her siblings was accorded refugee status, when the applicant's behaviour is all positive (Ponnampalam v. Canada (Minister of Citizenship & Immigration), IMM-2313-95 [reported at (1995), 30 Imm. L.R. (2d) 178 (Fed. T.D.)])?

Williams v.Canada (Minister of Citizenship & Immigration)

(1995) 32 Imm. L.R. (2d) 256 (F.C.T.D.) (Muldoon J.)

The applicant sought a stay of execution of a deportation order pending the outcome of judicial review of the decision that were insufficient humanitarian and compassionate grounds on which to allow her to remain in Canada.

The applicant came to Canada, from Jamaica, to join her husband who was also a citizen if Jamaica. She was refused permanent residence and a deportation order was issued against her. A negative decision was reached with respect to humanitarian and compassionate grounds. A judicial review of that decision is pending.

In refusing the stay, the Court stated:

There can be no, at least only rare, irreparable harm when one follows the decision of Mr. Justice Strayer in Shchelkanov v. Canada (Minister of Employment and Immigration) (1994), 76. F.T.R. 151. If the applicant thought that there was something defective about the removal order, she has had much time since February 2, 1995, in which to attack it. That she did not do so, is no doubt part and parcel of her evinced consciousness of being lawfully in Canada.

There is no irreparable harm visited upon the applicant in these circumstances. Since enforcing the State's laws is a quite legitimate activity of the respondent, the applicant has herself alone to blame. Nor is this a case of maladministration as was found in Muoz v. Canada (Minister of Citizenship & Immigration), IMM-2243-95 [reported at (1995), 30 Imm. L.R. (2d) 166 (Fed. T.D.)]. Here the applicant had generous notice of the removal order and the distant date upon which it was proposed to execute it, and she had her applied for h. & c. adjudication before that date and even an extension of time before execution of the removal order. There is no objective complaint to be made about that.

Encila v.Canada (Minister of Citizenship & Immigration)

(1996) 34 Imm. L.R. (2d) 180 (F.C.T.D.) (Gibson J.)

In this case the applicant had been working in Canada for seven years. Her application for permanent residence under the "live-in-caregiver" class was rejected. She was married with four children. She applied to the Court to have the deportation order stayed pending disposition of her application for leave and judicial review.

In allowing the stay application, the Court stated:

The court has jurisdiction to stay a departure order in appropriate circumstances. A serious issue existed as to whether the decision that the applicant's daughter was medically inadmissible was made on the basis of erroneous information which was not brought to the applicant's attention and to which she did not have an opportunity to respond.

...

Second, counsel for the Respondent argued that this Court lacked jurisdiction to stay a Departure Order.

...

Dealing with the second jurisdictional issue raised by counsel for the Respondent, in Rajan v. Canada (Minister of Employment & Immigration), Mr. Justice Rothstein refused to stay the "Transformation of a Departure Order into a deemed Deportation Order" and stated as follows:

"To grant the stay requested would be tantamount to my making an order that is expressly contrary to a provision of an Act of Parliament. The stay would provide that the Departure Order should not be deemed to be a deportation order, notwithstanding that no certificate of departure had been issued within the applicable period. I do not see how a court can issue a stay that, in effect, would change an act of Parliament.

. . . It is obvious that the courts may not ignore or change statute law. What is argued is so clearly inconsistent with the well-known roles of the courts and Parliament and our fundamental system of law, that I do not think anything more need be said."

Mr. Justice Rothstein went on to determine that an order of the Court directing the Respondent Minister not to require the Applicant before him to leave Canada, would be premature. He stated:

"In respect of the application for an order directing the Respondent not to require the applicant to leave Canada, I think this application is premature. If the applicant does not leave Canada of her own volition, as I earlier indicated, a stay application may be brought when the applicant is advised by the Respondent as to when she must leave. This aspect of the stay application therefore must also be dismissed."

Mr. Justice Noël reached a similar conclusion as to prematurity in Kaler v. Canada (Minister of Employment & Immigration).

In Calderon v. Canada (Minister of Citizenship & Immigration), Madame Justice Simpson commented on the decisions in Rajan and Kaler. She found:

"In that case [Rajan], Rothstein J., declined to issue a stay which would block the operation of an Act of Parliament by expressly preventing the deemed change from a Departure Order into a Deportation Order. His Lordship determined that the deeming of a Deportation Order could not be stayed. He did not, however, conclude that the Court was without jurisdiction to stay a Departure Order. Indeed, he went on to consider the request for such a stay and found that it was premature.

In Kaler, Mr. Justice Noël reached the same conclusion. He did not decide that he lacked jurisdiction to stay a Departure Order, but he considered the facts and decided that it was premature to stay the Order in that case.

It is clear from Section 27(1)(a) of the Immigration Regulations that stays of Departure Orders are contemplated by the Act. A stay is an extraordinary discretionary remedy which will only be granted in special circumstances. It may be that an Applicant who intends to abide by a Departure Order, to avoid the negative consequences of a Deportation Order, will present a case which justifies a stay. In my view, this Court clearly has jurisdiction to stay a Departure Order in appropriate circumstances."

Madame Justice Simpson's analysis is consistent with the decisions of the Associate Chief Justice granting stays of Departure Orders in Caletena and Bernardez referred to earlier in these reasons. I concur with the analysis of Madame Justice Simpson and I am satisfied that, in appropriate circumstances, this Court has jurisdiction to grant a stay of a Departure Order. [Footnotes omitted]

Bhatti v.Canada (Minister of Citizenship and Immigration)

(1996) 120 F.T.R. 123 (Reed J.)

The applicant was granted refugee status but that decision was vacated because the applicant made misrepresentations to the Refugee Board. He hid the fact that he was a member of a terrorist organization. He brought an application for a stay of a deportation order pending the outcome of an application for judicial review of the decision of the Refugee Board.

With respect to the issue of jurisdiction, the Court stated:

This Court has jurisdiction to grant stays of deportation orders to prevent proceedings before it from being rendered nugatory, when such have been commenced and perhaps also when such are anticipated. See generally: Waldman, Lorne, Immigration Law and Practice, vol. 2 (Butterworths: Toronto and Vancouver) at sec. 11.33 - sec. 11.52. Thus an application for a stay of a deportation order usually has its underpinning a pending or anticipated proceeding before the Court (e.g. pending the results of an application for leave to commence judicial review of an Immigration and Refugee Board decision).

Rizzo v.Canada (Minister of Citizenship and Immigration)

(1997) 125 F.T.R. 269 (Muldoon J.)

The applicant sought a stay of the execution of his removal from Canada under a conditional removal order pending the disposition of his judicial review application of a negative humanitarian and compassionate decision.

In granting the stay, the Court held:

In the case of Shchelkanov v. M.E.I. (1994), 76 F.T.R. 151, Mr. Justice Strayer then of this Court's Trial Division, in different circumstances wrote this:

"The inappropriateness of granting a stay under s. 18.2 of the Federal Court Act is particularly marked when the decision whose review is still pending is one under s. 114(2) of the Immigration Act. Such applications are completely undisciplined: they may be brought at any time and any number of times. One is all too familiar with the pattern of which the events in this case are but an example. A deportation order is issued and is either not attacked in the court or is attacked unsuccessfully. Months or years go by without it being executed, during which time a s. 114(2) application may have been made unsuccessfully or none may have been made. Eventually the deportee is advised that he will be removed on a certain date. Thereafter a s. 114(2) application is made. Either it is dismissed just before the scheduled departure or it has not yet been determined. An application for leave and judicial review of the s. 114(2) decision is launched and a stay of removal is sought. Presumably it is because deportation is not legally dependent on the proper disposition of such applications that no restrictions are placed in the Act on their timing and frequency.

...

"It has been suggested that a stay must be granted or otherwise the court's power to review the humanitarian and compassionate grounds application may be rendered "nugatory". I am unable to understand why this should be so in the normal case. For example, it will still be just as possible for a judge of this court to review the leave application on the file pursuant to the rules, even though the applicant is back in the former Soviet Union. If leave is granted, it will be possible for the application for judicial review to be heard, such hearings being based on affidavit evidence and the applicant herein having already deposed an affidavit. The court would still be quite able to set aside the s. 114(2) decisions. It is true that a favourable decision by the court may be of less practical value to the applicant if he is not in the country but that does not give him the right to stay here to await it.

As mentioned earlier, there is one situation in which I accept that it would be "appropriate" for the court to issue a stay of deportation pending the disposition of an application for leave or judicial review of a humanitarian and compassionate grounds decision: namely, where the haste of the Minister in executing the deportation order is interfering with the exercise of this court of its functions in respect of the leave or judicial review application. This could arise, for example, if after rejection of the s. 114(2) application, which had itself been made in a timely way, the deportee did not have a reasonable opportunity to instruct counsel and provide affidavit evidence for use in this court in the leave and review application concerning that rejection. No such circumstances exist in the present case."

That Strayer, J. noted lack of discipline in this sort of proceeding, cuts both ways. It is not only the individual deportee who may evince indiscipline, but as in this

case the Minister by his or her departmental officials. To make a negative decision in an humanitarian and compassionate matter and keep it a secret from the subject of the consideration, is surely the worse maladministration of the law of Canada, than the applicant's sitting about and never evincing any interest in whatever had become of his humanitarian and compassionate application - never even enquiring of the department - though as between the applicant's lacks, and the respondent's failure to inform him of the fate of his humanitarian and compassionate request, there is very little on which to award success in these proceedings...

...

Maladministration just cannot be permitted to succeed.

__________________

¹ The critical passages from this case are set out in Appendix I.

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