Date: 20021023
Docket: T-1519-02
Neutral citation: 2002 FCT 1099
BETWEEN:
ANDREW MARK MARSHALL, LASCELLES MARSHALL
and BEVERLEY MARSHALL
Applicants
- and -
HER MAJESTY THE QUEEN and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondents
REASONS FOR ORDER GRANTED OCTOBER 9, 2002
[1] This is a motion by the applicants for an interim injunction:
1. Restraining the respondent, the Minister of Citizenship and Immigration, from continuing admissibility proceedings against Andrew Mark Marshall until the issue of his citizenship status has been heard and disposed of, and more specifically;
2. Restraining the adjudicator, Mr. Paul Tetreault, from continuing the admissibility hearing regarding Andrew Mark Marshall, currently scheduled to resume on Thursday, October 10, 2002 at 11:30 a.m.
3. Abridging the time for service of this notice of motion pursuant to Rule 362(2)(b) of the Federal Court Rules, if necessary.
[2] The applicant, Andrew Mark Marshall's admissibility hearing is scheduled to reconvene on October 10, 2002 at 11:30 a.m. in Calgary, Alberta, before Adjudicator Paul Tetrault.
[3] The applicants have applied to this Court for an order restraining the adjudicator from continuing the hearing until the action commenced by the applicants under this Court file number is heard and determined.
[4] Issue
Can the relief requested by the applicants be granted?
[5] The applicants are asking this Court to prevent the Immigration Division from doing what it is directed to do by section 45 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, (the "IRPA") pending the determination of the applicants' action in this Court.
[6] I have read the submissions of counsel and considered their oral argument and I am of the view that this motion must be dismissed as this Court does not, at this point in time, have jurisdiction to issue the order requested.
[7] Subsection 72(1) of the IRPA states:
| 72(1) Judicial review by the Federal Court with respect to any matter - a decision, determination or order made, a measure taken or a question raised - under this Act is commenced by making an application for leave to the Court. |
72(1) Le contrôle judiciaire par la Cour fédérale de toute mesure - décision, ordonnance, question ou affaire - prise dans le cadre de la présente loi est subordonné au dépôt d'une demande d'autorisation. |
No application for judicial review has been filed with this Court.
[8] Subsection 18(1) of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, grants the Federal Court the jurisdiction to grant certain remedies, but subsection 18(3) of the Act requires that the remedy can be obtained only on application for judicial review.
[9] In the present motion, the motion for the interim injunction is made incidental to an action as no application for judicial review has been filed.
[10] The Court has jurisdiction to grant a stay pursuant to section 18.2 of the Federal Court Act, supra, but it only has that jurisdiction if a judicial review application has been filed.
[11] The applicants submit that subsection 50(1) of the Federal Court Act, supra gives this Court the jurisdiction to grant a stay in this matter. In my opinion, subsection 50(1) only provides for stays in proceedings being conducted before the Federal Court. The proceeding sought to be stayed here is not such a proceeding.
[12] The applicants' motion is therefore dismissed.
[13] As jurisdictional issues were raised by this motion and some of the legislative provisions were recently proclaimed, there shall be no order as to costs.
"John A. O'Keefe"
J.F.C.C.
Winnipeg, Manitoba
October 23, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1519-02
STYLE OF CAUSE: ANDREW MARK MARSHALL, LASCELLES
MARSHALL and BEVERLEY MARSHALL
- and -
HER MAJESTY THE QUEEN and
THE MINISTER OF CITIZENSHIP &
IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: Wednesday, October 9, 2002
REASONS FOR ORDER OF O'KEEFE J.
DATED: Wednesday, October 23, 2002
APPEARANCES:
Ms. Roxanne Haniff-Darwent
FOR APPLICANTS
Mr. Brad Hardstaff
FOR RESPONDENTS
SOLICITORS OF RECORD:
Darwent Law Office
#250, 1509 Centre Street South
Calgary, Alberta
T2G 2E6
FOR APPLICANTS
Department of Justice
211, 10199 - 101 Street
Edmonton, Alberta
T5J 3Y4
FOR RESPONDENTS
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20021023
Docket: T-1519-02
BETWEEN:
ANDREW MARK MARSHALL,
LASCELLES MARSHALL
and BEVERLEY MARSHALL
Applicants
- and -
HER MAJESTY THE QUEEN and
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondents
REASONS FOR ORDER