CITIZENSHIP AND IMMIGRATION
Judicial Review
Federal Court Jurisdiction
Appeal by Minister against stay of departure order— Application for leave, judicial review of unfavourable pre‑removal risk assessment not perfected when stay motion heard—Stay order to expire November 5, 2004 unless by then (1) leave application perfected, (2) permanent residence application, sponsored by spouse, Canadian resident, completed—If both (1), (2) occurred by deadline, stay extended until permanent residence application determined— Minister relying on Federal Courts Act, s. 27 giving Federal Court of Appeal jurisdiction over all final, interlocutory Federal Court judgments—But order was interlocutory judgment in relation to application, under Immigration and Refugee Protection Act (IRPA) s. 72(1), for leave—Generally, appeals of such orders barred by Act, s. 72(2)(e)—When impugned order made, there was pending, but unperfected, leave application—S. 18.2 of Federal Courts Act gave judge jurisdiction to entertain stay motion—Order presenting numerous legal issues on its face—But inappropriate to express opinion on any of these issues in that, even if order discloses error of law, error would be in context of judgment to which IRPA, s. 72(2)(e) applies and Parliament has legislated such order immune to appeal—Indeed, appeal of such order impossible even had judge certified question— Minister argued appeal should be entertained as order made outside Court’s statutory jurisdiction—But to accept that argument would deprive s. 72(2)(e) of all meaning—No doubt stay motion herein properly before Judge—S. 72(2)(e) precludes Court from entertaining Minister’s appeal, which must be quashed for want of jurisdiction—Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 72(1), (2)(e)—Federal Courts Act, R.S.C., 1985, c. F‑7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.2 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 28), 27 (as am. idem, s. 34).
Edwards v. Canada (Minister of Citizenship and Immigration) (A‑253‑04, 2005 FCA 176, Sharlow J.A., judgment dated 11/5/05, 6 pp.)