Federal Court of Appeal - Canada (Minister of Citizenship and Immigration) v. Lazareva

[1] The Minister of Citizenship and Immigration appeals the order of a judge of the Federal Court dated October 6, 2004: Lazareva v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1661(QL) (F.C.). That order reads as follows:

THIS COURT ORDERS THAT:

1. the motion for reconsideration of the Court's order of July 20, 2004 is dismissed;

2. there are no reasons to reconsider that [sic] the Court's conclusion that no question will be certified;

3. the Respondent should seek further directions from the Court if it has any issues in carrying out the Court's order.

[2] On July 20,2004, the judge allowed the respondent's application for judicial review of the decision of an immigration official, dated July 8, 2003, which denied the respondent's application for relief on humanitarian and compassionate grounds from the requirement to apply for permanent residence from outside Canada, and also granted the respondent certain other relief: Lazareva v. Canada (Minister of Citizenship and Immigration) (2004), 38 Imm.L.R. (3d) 285 (F.C.). The July 20, 2004 judgment reads as follows:

1. The decision dated July 8, 2003 is hereby quashed.

2. The Respondent [Minister] is directed to assess the Applicant's [Ms. Lazareva's] application for permanent residence from within Canada.

3. The Respondent shall cease to take any steps for the removal of the Applicant pending the determination of the permanent residence application.

4. No question will be certified.

[3] The reference in the fourth paragraph of the July 20, 2004 judgment is a reference to the certification of a serious question of general importance pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which reads as follows:

74. Judicial review is subject to the following provisions:

74. Les règles suivantes s'appliquent à la demande de contrôle judiciaire_:

...

(d) an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.

d) le jugement consécutif au contrôle judiciaire n'est susceptible d'appel en Cour d'appel fédérale que si le juge certifie que l'affaire soulève une question grave de portée générale et énonce celle-ci.

[4] The respondent's judicial review application was one to which section 74 of the Immigration and Refugee Protection Act applies. It was properly before the judge, and the judge had the requisite jurisdiction to dispose of it. However, the Minister argues that the judge erred, not in quashing the decision under review, but in granting the other relief.

[5] The Minister did not file a notice of appeal challenging the July 20, 2004 judgment. In formal terms, the Minister's appeal is from the October 6, 2004 order dismissing the Minister's motion for reconsideration of the July 20, 2004 judgment. However, the substantive argument on appeal is a challenge to the portions of the July 20, 2004 judgment that prohibit the Minister from enforcing a removal order. The Minister argues that the judge exceeded his jurisdiction because, in effect, he has usurped the authority granted to the Minister to decide whether the respondent's permanent residence application would be processed while the respondent was in Canada.

[6] The Minister may well be correct when he says that the judge did not have the authority to grant the ancillary relief he granted. But for paragraph 74(d) of the Immigration and Refugee Protection Act, it is more than likely that this appeal would succeed. However, it would not be appropriate to express a final opinion on the merits of the Minister's submissions because, even if they are well founded, there is no certified question. Paragraph 74(d) deprives this Court of jurisdiction to entertain an appeal of the July 20, 2004 judgment, unless there is a certified question. The Minister cannot avoid paragraph 74(d) by appealing a judgment dismissing a motion to reconsider that judgment.

[7] This case is not governed by any of the cases cited by the Minister in which this Court entertained appeals in immigration matters despite the statutory limitations on the right of appeal. In Subhaschandran v. Canada (Solicitor General), [2005] F.C.J. No. 107 (QL) (F.C.A.), this Court permitted the Minister to appeal an order for adjournment in an immigration matter, where the order was interpreted as a refusal by the judge to exercise his discretion to grant or refuse a stay. Here, it cannot be said that the judge declined to exercise his jurisdiction.

[8] In Forde v. Canada (Minister of Citizenship and Immigration) (1997), 210 N.R. 194 (C.A.), this Court permitted the Minister to appeal an order granting an interim stay of a removal order, where the stay order was made after the final disposition of the application for judicial review. There are other cases, such as Re Zündel, [2004] F.C.J. No. 1982 (QL) (F.C.A.), in which this Court entertained an appeal of an interlocutory order denying a recusal motion based on an allegation of bias or reasonable apprehension of bias. In none of those cases was there an argument that the judge had erred in the manner in which he finally disposed of an application for judicial review in an immigration matter. Put another way, none of them involved an attempt to appeal, without a certified question, a final judgment to which paragraph 74(d) of the Immigration and Refugee Protection Act (or its predecessor, subsection 83(1) of the Immigration Act, R.S.C. 1985, c. I-2) applied.

[9] This is the second attempt by the Minister in two days to appeal a decision of the Federal Court in a matter that, by statute, is not subject to appeal: Canada (Minister of Citizenship and Immigration) v. Edwards, 2005 FCA 176. Although the facts of that case are not the same as the facts of this case, they are sufficiently similar to engage the same principles, and the outcome must be the same. It is not open to this Court to disregard the provisions of the Immigration and Refugee Protection Act that preclude an appeal, or an appeal without a certified question, of a Federal Court judgment disposing of an application or motion that has been properly brought before the Federal Court under that Act.

[10] Notwithstanding the able submissions of counsel for the Minister, the appeal will be quashed for lack of jurisdiction. The respondent will be awarded costs in the amount of $2,500 inclusive of fees, disbursements and GST.

"Karen R. Sharlow"

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

Appellant

and

NINA LAZAREVA

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: MAY 12, 2005

REASONS FOR JUDGMENT

OF THE COURT: (DESJARDINS, ROTHSTEIN, SHARLOW, JJ.A.)

DELIVERED FROM THE

BENCH BY: SHARLOW J.A.

APPEARANCES:

Greg George

Bernard Assan

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 & Solicitor

Toronto, Ontario

FOR THE RESPONDENT