Ottawa, Ontario, November 28, 2008
PRESENT: The Honourable Mr. Justice Pinard
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP
[1] Pursuant to rule 51 of the Federal Courts Rules, SOR/98-106, the applicant is appealing from the decision of Prothonotary Morneau who, on October 2, 2008, dismissed his motion for an extension of time to file his motion record.
[2] However, no appeal lies from such an interlocutory order of the prothonotary, in view of paragraph 72(2)(e) of the Immigration and Refugee Protection Act, S.C. (2001), c. 27 (IRPA):
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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.
(2) The following provisions govern an application under subsection (1):
[. . .]
(e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.
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72. 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.
(2) Les dispositions suivantes s’appliquent à la demande d’autorisation :
[. . .]
e) le jugement sur la demande et toute décision interlocutoire ne sont pas susceptibles d’appel.
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[3] In Yogalingam v. The Minister of Citizenship and Immigration, 2003 FCT 540, this Court specifically determined that a decision of a prothonotary dismissing a motion for an extension of time in order to perfect a record is an interlocutory decision and, pursuant to paragraph 72(2)(e) of the IRPA, it lacks jurisdiction to hear an appeal from such a decision (see also Yawar Abbas Syed v. Minister of Citizenship and Immigration (September 9, 2003), IMM-2551-03). This interpretation was repeated and confirmed by the Federal Court of Appeal in Froom v. The Minister of Citizenship and Immigration, 2003 FCA 331, in which it referred to Yogalingam, supra, among others.
[4] Consequently, this motion to appeal is dismissed.
[5] In view of the relevant and unequivocal case law above, there is no question for certification arising.
ORDER
The motion to appeal from the decision dated October 2, 2008, by Prothonotary Morneau is dismissed.
Certified true translation
Susan Deichert, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2418-08
STYLE OF CAUSE: Tahir Hussain KHAN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 17, 2008
REASONS FOR ORDER
AND ORDER: PINARD J.
APPEARANCES:
Stewart Istvanffy FOR THE APPLICANT
Patricia Nobl FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada