Llewellyn v. Canada ( Minister of Employment and Immigration )
92-T-2147
Jerome A.C.J.
23/3/94
15 pp.
Application for stay of removal order and certification of questions for consideration by Court of Appeal -- Applicant, citizen of St. Vincent, remained continuously in Canada after visitor's status expired -- In 1992, married permanent resident of Canada and applied for permanent residence from within Canada, based upon humanitarian and compassionate grounds of bona fide marriage -- Departure notice sent to applicant on basis remained in Canada illegally and because no humanitarian or compassionate reasons -- Unclear whether Federal Court has jurisdiction to grant stay of removal order where validity of order itself not under attack -- Conflicting case law -- Reasoning in Hamilton v. Canada (Minister of Employment and Immigration), [1991] 1 F.C. 3 (T.D.) compelling -- There, as here, issue of whether serious question to be tried already determined in applicant's favour -- Thus, although validity of deportation order not impugned, some question as to whether immigration officer's conclusion no humanitarian grounds correct -- Federal Court Act, s. 18.2 giving Federal Court expanded jurisdiction necessary before stay could be granted -- Whether jurisdiction including power to stay operation of transitional provisions in Act to Amend Immigration Act, s. 113 so as to interrupt period of time during which departure notice must be honoured before converted into deportation order -- Application before Court not seeking declaration s. 113 of transitional provisions invalid -- Rather, Court asked to exercise discretion to issue interim order which would suspend operation of provision, under particular circumstances of case, in order to preclude section from frustrating intentions of Court and undermining intended outcome of application -- Court was called upon to exercise inherent jurisdiction to intervene in order to prevent relief sought from being rendered nugatory -- In light of inherent jurisdiction and jurisdiction conferred by Federal Court Act, s. 18.2, Federal Court has (a) authority to grant relief from effect of s. 113 of transitional provisions converting applicant's departure notice into deportation order and (b) power to stay execution of removal order -- Application granted -- Three questions certified for appeal: (1) on application for interim relief, whether jurisdiction in trial judge to certify question for appeal under s. 83(1); (2) whether jurisdiction in Court to stay removal order where its validity not under attack; (3) whether jurisdiction in Court to stay operation of s. 113 of Transitional provisions so as to interrupt period during which departure notice must be honoured before conversion into deportation order -- Federal Court Act, R.S.C., 1985, c. F-7, s. 18.2 (as enacted by S.C. 1990, c. 8, s. 5) -- An Act to amend Immigration Act and Other Acts in consequence thereof, S.C. 1992, c. 49, s. 113.