Date: 19971209
Docket: A-723-97
CORAM: STRAYER J.A.
DÉCARY J.A.
ROBERTSON J.A.
B E T W E E N:
YAN-LING SU,
Appellant
(Applicant)
" and "
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
(Respondent)
REASONS FOR JUDGMENT
STRAYER J.A.
[1] This is a show cause proceeding to determine whether the appellant"s appeal should be dismissed for want of jurisdiction in this Court. He seeks to appeal against a Trial Division decision refusing costs in an application for judicial review of a decision taken under the Immigration Act by a visa officer refusing the appellant"s application for permanent residence. The appellant succeeded on his application for judicial review and his counsel requested that costs be ordered in his favour. The learned motions judge refused to award costs, finding that there were no "special reasons" as required by Rule 1618 of the Federal Court Rules in judicial review matters. He also refused the appellant"s request that he certify the question of costs as a "question of general importance" so that an appeal might be taken on that issue to this Court.
[2] As no such question had been certified this Court, upon receipt of the notice of appeal, issued a show cause order in respect of its jurisdiction to entertain the appeal. Both parties have now made representations on that issue.
[3] Sub-section 83(1) of the Immigration Act provides as follows:
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83.(1) A judgment of the Federal Court " Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court " Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. |
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The appellant contends in effect that a refusal of costs is not a judgment within the meaning of this sub-section and therefore is not subject to the requirement of a certified question. I disagree. The refusal of costs was an integral part of a judgment disposing of an application for judicial review of a decision taken under the Immigration Act. As such, it is clearly within the limitations of sub-section 83(1) and this Court has no jurisdiction to entertain such an appeal unless the Trial Division has certified a question of general importance pertaining to costs.
[4] The appellant also asserts a variety of constitutional arguments against the validity of sub-section 83(1) being given such an interpretation or effect. Suffice it to say that such arguments have already been disposed of by this Court in Cam Hoa Huynh v. H.M. the Queen.1
[5] The appeal should therefore be quashed for want of jurisdiction.
(s) "B.L. Strayer"
J.A.
"I agree
Robert Décary J.A."
"I agree
J.T. Robertson J.A."
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(1996) 197 N.R. 62 at 68 (F.C.A.).
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