OTTAWA, ONTARIO, APRIL 5, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
and
THE SOLICITOR GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
[1] This is a motion to reconsider by the Respondent (Minister) of the Court's decision of February 7, 2006 (Razzaq v. Canada(Minister of Citizenship and Immigration),2006 FC 148) pursuant to Rule 397 of the Federal Courts Rules, SOR/98-106.
[2] That rule provides:
| 397. (1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as
constituted at the time the order was made, reconsider its terms on the ground that:
(a) the order does not accord with any reasons given for it; or
(b) a matter that should have been dealt with has been overlooked or accidentally omitted. |
397. (1) Dans les 10 jours après qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une partie peut signifier et déposer un avis de requête demandant à la
Cour qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes :
a) l'ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier;
b) une question qui aurait dû être traitée a été oubliée ou omise involontairement.
|
[3] The Applicant argues that the Court did not have jurisdiction to make the order. He relies on section 18.2 of the Federal Courts Act, R.S.C. 1985 (Act) which states:
18.2 On an application for judicial review, the Federal Court may make any interim orders that it considers appropriate pending the final disposition of the application.
[4] Before the court on February 7, 2006 was an application for a stay of removal scheduled for March 3, 2006. The facts as set out in the decision were as follows:
2. The Applicant came to Canada on May 28, 2001 from Pakistan and applied for refugee status alleging fear of prosecution on the basis of his Shia religion, The Immigration and Refugee Board (Board) denied his claim on July 24, 2002 and his judicial review application was denied by Snider J. on July 10, 2003. His Pre-Removal Risk Application (PRRA) was denied on December 12, 2005 although he only received a copy on January 23, 2006.
3. His judicial review of that PRRA decision is outstanding and he is seeking a stay until that application for leave is decided and should it be granted the application for judicial review is decided.
4. Relying on Toth v. Canada(Minister of Employment and Immigration)(1988), 86 N.R. 302, the Applicant is trying to establish serious issue, irreparable harm and balance of convenience on the following basis...
[5] The Court found there was no serious issue under Toth, above but nevertheless granted the stay for the following reasons:
9. In the interim, the Applicant, however, married a Canadian citizen of Pakistani origin on July 30, 2004, and on July 15, 2005 submitted an application on Humanitarian and Compassionate (H & C) grounds for an inland application for permanent residence based on his spouse's sponsorship. That application is still outstanding, and due to a mix up on addresses, a schedule interview has not taken place.
10. I see no reason for removing the Applicant, who is gainfully employed and has no criminal record, until this application is heard. Removal at this point in time would cause considerable hardship to the Applicant and his wife without any perceivable advantage to the Respondent, should the H & C application be successful. Accordingly, I will grant a stay until the H & C application is heard.
[6] The Minister argues that the Court did not have the jurisdiction to make such an order as the court is a statutory court and therefore has no inherent jurisdiction. It only has the jurisdiction assigned to it by statute. Section 18.2 of the Act restricts the issuance of interim orders to matters "pending the final disposition of the application". However, the stay granted herein is not pending the outcome of the outstanding application for judicial review of the negative PRAA decision of the Applicant, i.e. not pending the final disposition of the application. Instead the stay relates to the outstanding H & C application that was not before the court.
[7] To address the court's concern regarding unnecessary removal and the hardship involved therein the Minister in his pleadings observes:
38. The Respondent recognizes the Court's concern over the outstanding H & C application. However, the granting of the Respondent's motion will not result in the Applicant's removal. The Applicant can request a deferral of removal on the basis of, inter alia, his outstanding H & C application. If that request is refused, he can bring a judicial review application and motion in respect of that decision, and the Respondent will have no objection if the Applicant requests that the motion be heard and decided by the same Honourable Judge.
[8] The Applicant (the responding party in this motion) argues that a) Rule 397 does not apply and b) that the Court, pursuant to s. 44 of the Act, has the jurisdiction to make the order it did.
[9] Upon reconsideration of the issue it appears to me that the Minister is right. The matter before the court was an application to stay the decision of the removal officer pending the outcome of the underlying application for leave and, should leave be granted, the application for judicial
review of the negative PRRA decision. The issue of the H & C application was not before the court. This is a question of jurisdiction that was overlooked. It thus becomes a matter that can be reconsidered under Rule 397.
[10] With respect to the argument of the Applicant based on s. 44 of the Federal Courts Act, I see nothing in that section that would empower the court to grant a stay in respect of a matter that is not before it.
[11] Accordingly, on reconsideration of the matter, the order of February 7, 2006 is set aside and the application for a stay is denied. Due to the passage of time, the original stay order has, of course, become moot. If a new stay removal order is issued before the H & C decision is made, the Applicant would be well advised to follow the procedure described in the Minister's pleadings, as recited in paragraph 7 above.
[12] The Minister asked the court to certify a question if the reconsideration was not granted. As it was granted, this request becomes moot.
[13] The Applicant asked the court in case the request for reconsideration was successful, to grant leave for the underlying application to seek judicial review of the negative PRRA decision. Since that application for leave was not part of the original stay proceedings heard on February 6, 2006, it cannot be part of this reconsideration.
ORDER
THIS COURT ORDERS that
On reconsideration of this matter pursuant to Rule 397:
1. The order of February 7, 2006 authorizing a stay of removal is set aside.
2. The application for a stay of removal dated January 31, 2006 and filed February 1, 2006 is hereby denied.
3. There will be no order as to costs.
"K. von Finckenstein"
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-565-06
STYLE OF CAUSE: ABDUL RAZZAQ
v.
THE SOLICITOR GENERAL OF CANADA
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
DATED: APRIL 5, 2006
WRITTEN REPRESENTATIONS BY:
MS. LANI GOZLAN FOR THE APPLICANT
MR. NEGAR HASHEMI FOR THE RESPONDENT
SOLICITORS OF RECORD:
MS. LANI GOZLAN FOR THE APPLICANT
Barrister & Solicitor
Toronto, ON
MR. JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA