Romachkine v. Canada (Minister of Citizenship and Immigration), docket A-412-97

Date: 19990114

Docket: A-412-97

CORAM:      STONE J.A.

         STRAYER J.A.

         DÉCARY J.A.

    

BETWEEN:

     EUGUENI ROMACHKINE

    

     Appellant

    

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

    

     Respondent

    

     Heard at Toronto, Ontario, Thursday, January 14, 1999

     Judgment delivered from the Bench

     at Toronto, Ontario on Thursday, January 14, 1999

REASONS FOR JUDGMENT OF THE COURT BY:      DÉCARY J.A.

Date: 19990114

Docket: A-412-97

CORAM:      STONE J.A.

         STRAYER J.A.

         DÉCARY J.A.

BETWEEN:     

EUGUENI ROMACHKINE

     Appellant

     - and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Toronto, Ontario on

     Thursday, January 14, 1999)

DÉCARY J.A.:

[1]      We are of the view that the appeal should be dismissed for lack of jurisdiction, no question having been certified as required by section 83 of the Immigration Act.

[2]      The appellant's application for permanent residence in Canada had been refused by a visa officer in March, 1997. In April 1997, the appellant filed an application for judicial review of the visa officer decision. The application was supported by the affidavit of a person employed as a paralegal in the law firm of the appellant's previous legal counsel. The respondent filed a motion to strike the supporting affidavit and dismiss the application for judicial review. In May 1997, the motions judge granted the respondent's motion, struck the affidavit and dismissed the application for judicial review. No question was certified by the motions judge.

[3]      The impugned decision is clearly "a judgment of the Federal Court - Trial Division on an application for judicial review with respect to a decision or order made under the Immigration Act" within the meaning of subsection 83(1) of that Act. There being no question certified, there can be no appeal.

[4]      This case is distinguishable from that of Moldeveanu v. Minister of Citizenship and Immigration¹ where this Court accepted jurisdiction on the basis that the respondent in that case had only sought the striking of the supporting affidavit. There having been no order dismissing the application for judicial review, the Court was then of the view that there was no judgment on the application and that subsection 83(1) did not therefore apply.

[5]      The appeal will be dismissed.

                             "Robert Décary"

                                 J.A.

              FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

DOCKET:                      A-412-97

STYLE OF CAUSE:              EUGUENI ROMACHKINE

Appellant

                             - and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

DATE OF HEARING:              THURSDAY, JANUARY 14, 1999

PLACE OF HEARING:              TORONTO, ONTARIO

REASONS FOR JUDGMENT BY:      DÉCARY J.A.

Delivered at Toronto, Ontario

on Thursday, January 14, 1999

APPEARANCES:                  Mr. Rocco Galati

                    

For the Appellant

                         Ms. Cheryl Mitchell

                         Ms. Jeremiah Eastman

                        

                                 For the Respondent

SOLICITORS OF RECORD:          Galati, Rodrigues, & Associates

                         Barrister & Solicitor

                         637 College Street, Suite 203

                         Toronto, Ontario

                         M6G 1B5

                        

For the Appellant

                         Morris Rosenberg

                         Deputy Attorney General

                         of Canada     

                                 For the Respondent

    

FEDERAL COURT OF APPEAL

Date: 19990114

Docket: A-412-97

BETWEEN:

EUGUENI ROMACHKINE

Appellant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT

OF THE COURT

__________________

     ¹      (A-413-97, August 27, 1997. Order under Rule 324 dismissing a motion to quash the appeal. The appeal in Moldeveanu was dismissed on its merit this very day by this Court.)