Date: 20060208
Docket: A-338-05
Citation: 2006 FCA 54
CORAM: ROTHSTEIN J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
BULEN KOCAK
Respondent
Heard at Toronto, Ontario, on February 8, 2006.
Judgment delivered from the Bench at Toronto, Ontario, on February 8, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
Date: 20060208
Docket: A-338-05
Citation: 2006 FCA 54
CORAM: ROTHSTEIN J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
BULEN KOCAK
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on February 8, 2006)
[1] The Minister of Citizenship and Immigration seeks to appeal an order of the Federal Court to stay the removal of the respondent Mr. Kocak. In our view, the only issue that arises is whether that appeal is barred by paragraph 72(2)(e) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). That provision states that no appeal lies from an interlocutory judgment in an application for leave made under section 72 (that is, an application for leave to seek judicial review of a decision or determination made under the IRPA).
[2] The Minister argues that paragraph 72(2)(e) does not apply to the stay order in this case because the judge who made the order did not have the statutory authority to make it. We do not agree.
[3] Mr. Kocak's motion for a stay was grounded in his application in IMM-3507-05, a properly constituted application for leave to seek judicial review of a removal decision. There is no doubt that the judge who made the order for a stay had the jurisdiction to consider Mr. Kocak's motion. The only problem, if there is one, is with the duration of the order.
[4] Normally, an order staying the removal of a person under the IRPA expires by its own terms upon the disposition of the application for leave or the application for judicial review upon which it is grounded. In this case, the stay is stated to end upon the later of two discrete events. One event is the disposition of Mr. Kocak's application for leave in IMM-3507-05 (it was dismissed on August 15, 2005). The other event is the disposition of an application made by Mr. Kocak for relief on humanitarian and compassionate grounds (the "H & C"application) on February 22, 2005. That application was outstanding when the motion for stay was made and it remains outstanding to this day. As it turns out, the stay order has outlived its procedural foundation (IMM-3507-05) because Mr. Kocak's H & C application was not decided before the disposition of the application for leave.
[5] The Minister characterizes the order, in the present circumstances, as a "free standing stay", and argues that the Federal Court cannot grant a "free standing stay". In fact, the order is not a free standing stay. It was made in the context of a pending application for leave in the Federal Court, IMM-3507-05. The fact that the order by its terms could preclude the removal of Mr. Kocak for some period after that proceeding was finished raises an issue as to whether it is an error of law to order a stay of departure in the context of a particular leave application until the conclusion of some other immigration proceeding. If that is an error of law (a point on which we express no opinion), this Court cannot correct it because the law precludes an appeal of the stay order. There is no relevant distinction between this case and Canada (Minister of Citizenship and Immigration) v. Edwards, 2005 FCA 176.
[6] This appeal will be quashed for lack of jurisdiction.
"K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-338-05
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
BULEN KOCAK
Respondent
PLACE OF HEARING: TORONTO
DATE OF HEARING: FEBRUARY 8, 2006
REASONS FOR JUDGMENT OF THE COURT: ROTHSTEIN, SHARLOW, MALONE JJ.A.
DELIVERED FROM THE BENCH BY: SHARLOW J.A.
APPEARANCES:
|
Lorne McClenaghan |
FOR THE APPELLANT |
|
Alex Billingsley |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
John H. Sims, Q.C. Deputy Attorney General of Canada Toronto |
FOR THE APPELLANT |
|
Cintosun & Associate Toronto |
FOR THE RESPONDENT |