Date: 20100920
Docket: IMM-5074-10
Citation: 2010 FC 939
Toronto, Ontario, September 20, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
KWOK
FAI CHAN
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicant brought a motion in this matter seeking an “order enjoining, nunc
pro tunc to 16 August 2010, enforcement action, including a Pre-Removal Risk
Assessment, from proceeding with respect to the July 21st
deportation order being directly challenged in IMM-4440-10 and indirectly in
IMM-4270-10.” I dismissed that motion by Order dated September 14, 2010.
[2]
Following
the issuance of the Order, the Court received correspondence from counsel for
the applicant submitting the following question for certification:
Where the legality of a
removal order is being challenged, may the respondent only be enjoined from
seeking to execute it after the airplane ticket has been booked and the
party being deported advised of the removal date or may an applicant seek to
enjoin the respondent from proceeding with removal action prior to the eleventh
hour?
[3]
The reason
why the motion for an injunction was brought was put as follows in
correspondence from counsel for the applicant: “Because neither Mr. Chan nor I
can fathom a proper public purpose for forcing us to lodge two more
applications, we have filed this motion seeking to enjoin CBSA agents from
striving to execute a patently unlawful deportation order and to avert two more
court cases from clogging the Court’s docket. Thus the question is whether
this Honourable Court shares Ms. Christodoulides’ preference to spawn
litigation or Mr. Chan’s desire for it to rule on the validity of removal order
[sic] before CBSA is [sic] can position itself to execute it
overnight.”
[4]
The motion
was dismissed on the basis that the applicant had failed to establish that he
would suffer any irreparable harm if it was not granted. The relevant portions
of the endorsement read as follows:
4. Mr. Chan cannot
presently be removed from Canada as he has been offered the
opportunity to make a Pre-Removal Risk Assessment application (PRRA). He has
until tomorrow to decide whether so to do. His counsel informed the Court that
he will be filing his PRRA tomorrow. This will then result in there being a
statutory stay of removal pursuant to section 232 of the Regulations. Accordingly,
once the applicant files his PRRA, he will not be subject to removal and will
not be liable to be removed until the PRRA decision is made and then only if it
is a negative one.
5. The applicant
submits that the respondent’s agents are hurrying the process and that it is
likely that the PRRA decision will be negative and that they will then move
quickly to remove him and then an urgent motion would have to be brought by him
seeking a stay of the removal.
6. Frankly, that is
the usual and ordinary process in these matters. Urgent stay motions are
brought on short notice regularly. In particular, in Toronto a Judge is assigned to be a duty Judge
each week to hear such urgent motions. There is nothing that amounts to
irreparable harm to the applicant if he has to follow the usual process.
Having to engage a court, even numerous times, cannot be irreparable harm to a
party, even if inconvenient. As there is no irreparable harm established, the
motion for an injunction, as I indicated from the Bench, must be dismissed.
[5]
In
response to the request that the court certify a question, counsel for the
respondent submitted that it was barred by subsection 72(2)(e) of the Immigration and Refugee
Protection Act,
S.C. 2001, c. 27. Section 72(1) and (2)(e) of the Act provide as follows:
|
72. (1) Judicial review by the Federal Court with
respect to any matter — a decision, determination or order made, a measure
taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
(2) The following provisions govern an application under
subsection (1):
…
(e) no appeal lies from the decision
of the Court with respect to the application or with respect to an
interlocutory judgment.
|
72. (1) Le contrôle
judiciaire par la Cour fédérale de toute mesure — décision, ordonnance,
question ou affaire — prise dans le cadre de la présente loi est subordonné
au dépôt d’une demande d’autorisation.
(2) Les dispositions suivantes s’appliquent à la demande
d’autorisation :
…
e) le jugement sur
la demande et toute décision interlocutoire ne sont pas susceptibles d’appel.
|
[6]
In reply,
the applicant submits that the respondent’s interpretation of subsection
72(2)(e) cannot be correct as it would likewise bar any review of the decision
on the application itself, which is not the case, provided a question is
certified. Accordingly, he submits, subsection 72(2)(e) must be read in
conjunction with subsection 74(d) which provides that an appeal lies to the
Federal Court of Appeal “if, in rendering judgment, the judge certifies that a
serious question of general importance is involved and states the question.”
[7]
I do not
accept the applicant’s interpretation of the relevant provisions of the Act.
Subsection 72(2)(e) of the Act states that it applies to an application under
subsection (1), that is to say, it refers and relates to “an application for
leave” to judicially review the impugned decision, it does not refer and relate
to the final judgment on the merits of a judicial review application, as
suggested by the applicant. It thus provides that no appeal lies from a
decision of this Court to grant or deny leave to judicially review a decision.
It further provides that no appeal lies from an interlocutory decision under the
Act. There are numerous decisions which have held that an interlocutory
judgment in a judicial review application under the Act is not subject to
appeal: See, for example, Mabrouki v.
Canada (Minister of Citizenship and Immigration), 2003 FC 1104, at para 21: “… the wording of
paragraph 72(2)(e) seems quite
clear that an interlocutory decision is not appealable”; Froom v. Canada
(Minister of Citizenship and Immigration), 2003 FCA 331, at para. 3: “… an appeal from an interlocutory judgment is
barred by paragraph 72(2)(e) of the Immigration and Refugee Protection Act
…”; and Pancharatnam v. Canada (Solicitor General), 2004 FC 867, Order: “As this is
an interlocutory order, no question can be certified as per section 72(2)(e) of the Act.”
[8]
The
Federal Court of Appeal has held that it is only in exceptional circumstances
that an appeal lies to it from an interlocutory judgment under the Act;
however, it appears that the exceptional circumstance require that there be a
refusal of this Court to exercise its jurisdiction. This was most recently
stated in Horne v. Canada
(Minister of Citizenship and Immigration), 2010 FCA 55, at para. 4:
The Court was disposed to hear the stay
motion on an urgent basis. However, it was obvious that a question would arise
as to the validity of the appeal, because the order sought to be appealed is an
interlocutory judgment in a judicial review application relating to a decision
under the IRPA. Paragraph 72(2)(e) of the IRPA states that no appeal lies from such
a judgment. However, this Court has held that paragraph 72(2)(e) does not bar
an appeal from an order that reflects a refusal by a judge to exercise his
jurisdiction to determine a stay motion: Subhaschandran v. Canada (Solicitor General (F.C.A.), [2005] 3 F.C.R. 255, 2005 FCA 27.
The
Court found that the case before it bore no resemblance to Subhaschandran
and dismissed the motion for a stay. In so doing the Court stated that “even if the Judge's disposition of the appellants' stay
motion is based on one or more legal errors in formulating or applying the
tripartite test - and we express no opinion on that point - paragraph 72(2)(e) precludes an
appeal.”
[9]
Accordingly,
I find that I have no jurisdiction to certify the question posed by the
applicant. It is barred by virtue of subsection 72(2)(e) of the Act.
[10]
Further,
even if I had jurisdiction, I would not have certified the question posed by
the applicant as the disposition of that question would not have been
dispositive of an appeal from my Order of September 14, 2010. The applicant’s
motion for a stay was dismissed as there was no irreparable harm; it was not
dismissed on the basis that is implied in the question that is posed.
[11]
For these
reasons, the question posed by the applicant will not be certified.
ORDER
THIS COURT ORDERS that the request to certify the question set out in
paragraph 2 is denied.
"Russel W. Zinn"
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