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Immigration - Appeals. Li v. Canada (Citizenship and Immigration)
In Li v. Canada (Citizenship and Immigration) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal, here from a court 'direction' (not from an 'order') that "the appellant’s motion for a stay of removal was premature because travel documents for the appellant were not ready". 'Directions' can't be appealed, thus raising a lack of jurisdiction argument and respondent countered with a Rule 74 motion to 'remove document from the court file', which - in conjunction with the Federal Court's 'plenary' authority under Constitution Act, 1867 s.101 - serves in some Federal Court contexts as a de facto quashing of an appeal.
Here the court (Stratas JA, quoting himself further in Canada (Citizenship and Immigration) v. Tennant, 2018 FCA 132) considers the sometimes-meaning of the term 'jurisdiction', here in the context of an exception to a statutory IRPA [s.74(d)] bar on appeals to the FCA without certification of the questions:[10] Another reason why this Court lacks jurisdiction to hear this appeal is the statutory bar against appeals to this Court under s. 74(d) of the Immigration and Refugee Protection Act.
[11] There are some judge-made exceptions to that bar based on the constitutional principle of the rule of law: Tennant at para. 14. The appellant submits that a number of exceptions apply here.
[12] First, the appellant alleges that the Federal Court exceeded its "“jurisdiction”" and so this Court should hear the appeal.
[13] Here, there is no issue of jurisdiction. The appellant’s use of "“jurisdiction”" is misplaced. As this Court said in Tennant at para. 20:Seen in this way, “jurisdiction” is not some sort of a magic password that opens the door to access to this Court. Rather, it is nothing more than a rhetorical label people sometimes use to try to boost a garden-variety issue of statutory interpretation into something more significant. In my view, in describing this very rare exception to the statutory bars it would be best if this word [jurisdiction] were avoided altogether. Rather, the exception is for fundamental flaws in well-defined, extraordinary circumstances. [14] On the issue of jurisdiction, the appellant further submits that the Federal Court had no power to remove the appellant’s motion from the Court’s general sittings. This is incorrect. The Federal Court has the right to control its own processes and can adjourn, schedule and reschedule matters as is appropriate and fair. This right is founded in a plenary power:The Federal Courts’ power to control the integrity of its own processes is part of its core function, essential for the due administration of justice, the preservation of the rule of law and the maintenance of a proper balance of power among the legislative, executive and judicial branches of government. Without that power, any court—even a court under section 101 of the Constitution Act, 1867—is emasculated, and is not really a court at all.
(Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50, 443 N.R. 378 at para. 36.) . Canada (Public Safety and Emergency Preparedness) v. Canadian Association of Refugee Lawyers
In Canada (Public Safety and Emergency Preparedness) v. Canadian Association of Refugee Lawyers (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a JR, here where the successful JR applicant argued that immigration inadmissibility [under IRPA, s.34(1)(a) and (f) - 'Inadmissibility - Security'] required that the applicant was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage "contrary to Canada’s interests", and that such espionage have a Canadian nexus.
Here the court considers the SOR for an appeal where the lower JR court has 'certified' an issue of statutory interpretation (which is, under Vavilov, a question of law):[28] This Court has previously expressed concerns with respect to the application of the reasonableness standard in the context of questions certified by the Federal Court under the provisions of subsection 74(d) of IRPA. This is especially so where, as here, this Court is called upon to answer questions of statutory interpretation that require a yes or no answer: see, e.g. Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50 at paras. 40‑44. See also the dissenting opinion of Justice Côté in Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 at paras. 126, 152 (Mason). Nevertheless, the majority decision in Mason affirms that reasonableness is the standard to be applied by reviewing courts in addressing certified questions in the immigration context.
[29] Consequently, I agree with the parties that the Federal Court correctly identified reasonableness as the standard to be applied in reviewing the ID’s interpretation of paragraph 34(1)(a) of IRPA, specifically the phrase "“contrary to Canada’s interests”" as it appears in that provision. The question for determination is thus whether the Federal Court properly applied that standard in this case. . Canada (Public Safety and Emergency Preparedness) v. Ewen
In Canada (Public Safety and Emergency Preparedness) v. Ewen (Fed CA, 2023) the Federal Court of Appeal considered an unusual appeal from interlocutory orders that granted an interim stay of an immigration removal in order to receive the written submissions on court-initiated Charter issues.
In these quotes, the court considers it's jurisdiction to hear an appeal of Federal Court interlocutory orders, here in an immigration appeal context:A. Does this Court have jurisdiction to hear this appeal of an interlocutory order of the Federal Court?
[15] It is beyond dispute that interlocutory decisions in immigration matters are not ordinarily subject to appeals pursuant to the preclusive clause contained in paragraph 72(2)(e) of IRPA, which states that “no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment”. Furthermore, an appeal from a final judgment is only available when the judge rendering it certifies a serious question of general importance (see paragraph 74(d) of IRPA).
[16] Yet, paragraph 27(1)(c) of the Federal Courts Act, R.S.C. 1985, c. F-7 authorizes an appeal from an interlocutory judgment of the Federal Court. On the basis of that provision, a body of jurisprudence has developed, empowering this Court in exceptional circumstances to entertain an appeal of an interlocutory decision, or of a final decision where no question has been certified, despite the statutory bars found in the IRPA.
[17] In a long line of cases going back to at least the decision of this Court in Subhaschandran v. Canada (Solicitor General), 2005 FCA 27 at paras. 13, 17, it has been recognized that appellate review may be available when a case raises “very fundamental matters” or “truly exceptional matters” that “strike right at the rule of law”: Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 144 at paras. 19-21. There is an additional exception to the rule that no appeal lies from interlocutory orders. Where the alleged error has been made in the context of a “separate, divisible judicial act”, and involves the exercise of a power that is not found in the IRPA, appellate review is not governed by that Act: Harkat v. Canada (Attorney General), 2021 FCA 209 at para. 25; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, 1997 CanLII 322 (S.C.C.) at para. 66.
[18] In my view, the case at bar exemplifies this second exception. The Motion Judge’s decision to order an interim stay to inquire into whether the Government of Canada’s use of gender-neutral pronouns in its submissions infringed the respondent’s Charter rights has no basis in the IRPA’s provisions. The preclusive clauses found in paragraphs 72(2)(e) and 74(d) of IRPA therefore cannot find application in the very particular and exceptional circumstances of this case.
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