Date: 20050128
Docket: A-589-04
Citation: 2005 FCA 39
Present: EVANS J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
NINA LAZAREVA
Respondent
"Dealt with in writing without appearance of parties."
Order delivered at Ottawa, Ontario, on January 28, 2005.
REASONS FOR ORDER BY: EVANS J.A.
Date: 20050128
Docket: A-589-04
Citation: 2005 FCA 39
Present: EVANS J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
NINA LAZAREVA
Respondent
REASONS FOR ORDER
[1] I have before me a motion pursuant to Rule 369 of the Federal Courts Rules by the respondent, Nina Lazareva, to quash the appeal by the Minister of Citizenship and Immigration of a decision of Phelan J. of the Federal Court, dated October 6, 2004: Lazareva v. Canada (Minister of Citizenship and Immigration), 2004 FC 1392. In that decision, Phelan J. dismissed a motion brought by the Minister under Rule 397 to reconsider a decision that he had rendered on July 20, 2004, Lazareva v. Canada (Minister of Citizenship and Immigration), 2004 FC 1019.
[2] The Minister has brought a cross-motion for a stay of the order of Phelan J. pending the disposition of the appeal, in the event that the respondent's motion to dismiss the Minister's appeal is denied.
[3] Phelan J. had declined to certify a question for appeal prior to rendering the July decision, and refused to certify a question when he reconsidered that decision in October. The respondent argues that, in the absence of a certified question, this Court has no jurisdiction to hear the Minister's appeal, by virtue of paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[4] The Minister contends that the statutory prohibition of a right of appeal to the Court in immigration matters in the absence of a certified question is not absolute. In particular, it does not preclude a party from appealing a decision that a Judge of the Federal Court had no jurisdiction to make.
[5] After the parties had filed their materials in this matter, this Court allowed an appeal in another immigration matter to proceed, despite the absence of a certified question, on the ground that the Judge had refused to exercise his jurisdiction to determine an application for the stay of a removal order pending the determination of an application for leave and, if granted, the application itself: Canada (Solicitor General) v. Subhaschandran, 2005 FCA 27.
[6] In the present case, the Minister argues that Phelan J.'s decision was made in excess of his jurisdiction because he purported to exercise a discretionary power conferred by Parliament on the Minister, namely, the power to permit a person to apply within Canada for permanent resident status on humanitarian and compassionate grounds. The Minister also alleges that the Judge had no jurisdiction to order the Minister to assess the respondent's application for permanent residence as an inland application, or to stay the appellant's removal from Canada.
[7] I cannot grant the respondent's motion to dismiss the appeal for lack of jurisdiction. It is clear on the basis of Subhaschandran that there are circumstances in which a party may appeal to this Court in an immigration matter, even though no question has been certified. However, it is not clear whether the facts of this case bring it within the principle illustrated by Subhaschandran.Consequently, whether the present appeal may proceed on the ground that the Federal Court exceeded its jurisdiction, despite the absence of a certified question, should be the subject of oral argument when the appeal is heard.
[8] Since I have determined that the appeal should proceed, I must now consider the Minister's cross-motion for a stay of Phelan J.'s order. The respondent submits that the operative decision of the Judge is the first decision, that is, the order of July 20, 2004. And, since this decision is not itself under appeal, it cannot be the subject of a stay pending the disposition of the Minister's appeal of the reconsideration decision of October 6, 2004.
[9] I agree with counsel for the Minister that this an unduly formalistic approach which could deny the Minister an effective remedy, since Phelan J.'s two orders are inseparable. As to the tripartite test for determining applications for a stay, I have already indicated that there is an arguable question to be decided in this appeal, which the respondent seems not to challenge.
[10] Moreover, I am persuaded that, if the appeal were successful, the Minister would have suffered irreparable harm if she had been required to devote the resources necessary to process the respondent's application for landing, and to commence a process that she had no power to undertake. As for the balance of convenience, I am not satisfied that the hardship caused to the respondent by the delay outweighs the damage to the Minister, especially since the respondent has already been in Canada for ten years without permanent resident status.
[11] Consequently, I adopt the suggestion of the Minister and order the Minister not to proceed with the respondent's landing application until the appeal is determined. However, in recognition of any hardship that may be caused to the respondent and her husband (both of whom are in their eighties) by the delay and uncertainty, I would also order that the hearing of the appeal be expedited.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-589-04
STYLE OF CAUSE: The Minister of Citizenship and Immigration v. Nina Lazareva
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER BY: The Honourable Mr. Justice Evans
DATED: January 28, 2005
WRITTEN REPRESENTATIONS BY:
Greg G. George FOR THE APPELLANT
Inna Kogan FOR THE RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE APPELLANT
Inna Kogan
Barrister and Solicitor
Toronto, Ontario FOR THE RESPONDENT