A-614-04
2005 FCA 56
(Lower court No. IMM-577-04 )
The Minister of Citizenship and Immigration (Appellant) (Respondent in the Federal Court)
v.
CHEN, Tsai-Cheng, PENG, Sheng-Chien, WU, Chin-Chung, LIN, Chin Yuan, KUO, Nai Wei, WANG, Hsiu Shan, HSIEH, Tze-En, HUNG, Mei Ying, KO, Ching Yi, KO, Yu Fan, KO Yu Chu, HSU, Tase Yuen, CHANG, Lien Fang, CHEN, Yuan Hsing, LIN, Cheng-I, CHEN, Ping-Hung, HSIEH, Tsung-Jen, CHEN, Yeuh-Yin, FANG CHANG, Shu Min, PUI, Kwan Kay, LAI, Yung-Liang, CHANG, Ting Hui, CHANG, Fang Ming, LEI, Manuel Joao, LIN, Yung Nien, HUANG HSU, Li-Mei, FANG, Ming-Tau, LIU, Kun Yung, CHEN, Kun-Wen, TSENG, Hung Yu, CHANG, Mao, MENG, Lin Yu, TAI, Yu-Hu, YANG, Cheng-Kang, CHEN, Wen-Shing, YU, Chung-Wen, YU, Wei-Chung, LIN, Shih Chun, CHANG, Lei-Fa, CHAO, Lin Shu, HSU, Pao Hua (Respondents) (Applicants in the Federal Court)
(Lower court No. Imm-1467-04 )
Minister of Citizenship and Immigration (Appellant) (Respondent in the Federal Court)
v.
CHU, Kar Ho and PENG, Jeng-Yang Alex (Respondents) (Applicants in the Federal Court)
IMM-10140-03
Minister of Citizenship and Immigration (Appellant) (Defendant in the Federal Court)
v.
PENG, Sheng-Chien, WU, Chin-Chung, LIN, Chin Yuan, KUO, Nai Wei, WANG, Hsiu Shan, HSIEH, Tze-En, HUNG, Mei Ying, KO, Ching Yi, KO, Yu Fan, KO Yu Chu, HSU, Tase Yuen, CHANG, Lien Fang, CHEN, Yuan Hsing, LIN, Cheng-I, CHEN, Ping-Hung, HSIEH, Tsung-Jen, CHEN, Yeuh-Yin, FANG CHANG, Shu-Min, PUI, Kwan Kay, LAI, Yung-Liang, CHANG, Ting Hui, CHAN, Yun Tsung, CHAN, Kai Yen, CHANG, Frang Ming, LEI, Manuel Joao, LIN, Yung Nien, HUANG, Chin Ming, HUANG HSU, Li-Mei, HUANG, Hsiu-Chu, FANG, Ming-Tau, LIU, Kun Yung, CHEN, Kun-Wen, TSENG, Hung Yu, WANG, Bey Ling, HSIAO, Hsueh Chun, CHANG, Mao, MENG, Lin Yu, TAI, Yu-Hu, YANG, Cheng-Kang, CHEN, Wen Shing, Yu, Chung-Wen, YU, Wei-Chung, LIN, Shih Chun, CHANG, Lei-Fa, CHAO, Lin Shu, HSU, Pao Hua (Respondents) (Plaintiffs in the Federal Court)
(Lower Court File No. IMM-576-05 )
Minister of Citizenship and Immigration (Appellant) (Defendant in the Federal Court)
v.
Kin Wah AU, Mel Chu HSU, Shu-Ho Sun, Lai Sha SO, Ching Man AU, Ho Pang AU, Lung Pin CHEN, Huan-Yuan CHEN, Png-Ju Chen, Ping-Hua CHEN, Pun-Chun SUN KUO, Wen-Kuel SUN and Wen-Li SUN (Respondents) (Plaintiffs in the Federal Court)
Indexed as: Chen v. Canada (Minister of Citizenship and Immigration) (F.C.A.)
Federal Court of Appeal, Rothstein, Evans and Malone JJ.A.--Toronto, February 3, 2005.
Citizenship and Immigration -- Judicial Review -- Federal Court Jurisdiction -- Motion to quash appeal from decision to convert judicial review application into action -- Litigation by non-citizens now outside Canada seeking relief for failure to process permanent resident card applications -- F.C.A. accepting argument without jurisdiction to entertain appeal, serious question of general importance not having been certified as required by Immigration and Refugee Protection Act, s. 74(d) -- Minister's position supported neither by statutory language nor policy considerations.
statutes and regulations judicially
considered
Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.4 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 28), 27 (as am. idem, s. 34).
| Immigration Act, R.S.C., 1985, c. I-2, s. 83(1) (as am. by S.C. 1992, c. 49, s. 73). |
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 72 (as am. by S.C. 2002, c. 8, s. 194), 73, 74, 75 (as am. idem). |
cases judicially considered
applied:
Geza v. Canada (Minister of Citizenship and Immigration) (2001), 12 Imm. L.R. (3d) 123; 266 N.R. 158 (F.C.A.).
distinguished:
Adams v. Canada (Royal Canadian Mounted Police) (1995), 182 N.R. 354 (F.C.A.); Shubenacadie Indian Band v. Canada (Minister of Fisheries and Oceans) (2002), 299 N.R. 241; 2002 FCA 509.
referred to:
Sandor v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1668 (T.D.) (QL); Kozak v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1680 (T.D.) (QL).
MOTION to quash Minister's appeal from a decision ([2005] 3 F.C.R. 79; 2004 FC 1573 (F.C.)) converting a judicial review application in an immigration matter into an action. Motion granted.
appearances:
M. Sean Gaudet and Brenda Carbonell for appellant.
Rocco Galati and Lawrence Wong for respondents.
solicitors of record:
Deputy Attorney General of Canada for appellant.
Galati, Rodrigues & Associates, Toronto, and Wong Pederson Law Offices, Vancouver, for respondents.
The following are the reasons for judgment of the Court delivered orally in English by
[1]Evans J.A.: This is a motion brought on behalf of the respondents to quash an appeal by the Minister of Citizenship and Immigration against the decision of Russell J. of the Federal Court in Chen v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 79. In that decision, the Judge directed that an application for judicial review made by the respondents be treated and proceeded with as an action pursuant to subsection 18.4(2) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 28] of the Federal Courts Act, R.S.C., 1985, c. F-7 [s. 1 (as am. by S.C. 2002, c. 8, s. 14)].
[2]The litigation from which this motion arises involves claims for injunctive and monetary relief by the respondents, non-Canadian citizens currently outside Canada, who have at one time lived here. Their claims allege that the Minister breached their statutory and constitutional rights by unlawfully failing to process their applications for permanent resident cards, without which they cannot return to their homes and families in Canada, even as visitors.
[3]In their motion, the respondents allege that this Court is without jurisdiction to hear the Minister's appeal, on the ground that it arises from an application for judicial review in an immigration matter and, when rendering judgment, the Judge did not certify that a serious question of general importance was involved pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (IRPA). Without a certified question, an appeal does not lie from the Federal Court to this Court. Moreover, subsection 75(2) [as am. by S.C. 2002, c. 8, s. 194] of the IRPA provides that, to the extent that there is an inconsistency between a provision in Division 8 of the IRPA (that is, sections 72-75 [ss. 72 (as am. by S.C. 2002, c. 8. s. 194), 75(1) (as am. idem)]) and the Federal Courts Act, the former prevails.
[4]In response to the respondents' motion, the Minister says that the provisions in the IRPA limiting the right of appeal from the Federal Court to this Court only apply in respect of applications for judicial review. The effect of Russell J.'s decision is to turn the respondents' application into an action, to which Division 8 does not apply, including the certified question provision, and the prohibition on appeals from interlocutory judgments contained in the IRPA, paragraph 72(2)(e). Hence, the Minister argues, he may rely on the unrestricted right of appeal to this Court from a final or interlocutory judgment of the Federal Court conferred by section 27 of the Federal Courts Act.
[5]We are all of the view that the respondents' motion should succeed. This Court has consistently taken the view that the provisions in Division 8 of the IRPA and the analogous provision in its predecessor, the Immigration Act, R.S.C., 1985, c. I-2, subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73], effectively preclude an appeal from a decision in an application for judicial review respecting an immigration matter, as well as from ancillary or interlocutory decisions relating thereto.
[6]The respondents rely particularly on Geza v. Canada (Minister of Citizenship and Immigration) (2001), 12 Imm. L.R. (3d) 123 (F.C.A.), in which the Court dismissed an appeal from a decision by a judge of the Federal Court--Trial Division (as it then was) refusing to convert an application for judicial review in an immigration matter into an action, on the ground that no question had been certified [sub. nom. Sandor v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1668 (T.D.) (QL) and sub. nom. Kozak v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1680 (T.D.) (QL)].
[7]The Minister seeks to distinguish Geza by saying that since, in that case, the Court refused to convert the application, the proceeding continued as an application and the appeal was in respect of it. In contrast, Russell J.'s order that the application for judicial review be treated and proceeded with as an action effectively put an end to the application, so that the only extant proceeding is the respondents' action, to which Division 8 of the IRPA does not apply.
[8]We do not accept this argument. We are not persuaded that either the language of the statutory text, or the underlying policy, supports the distinction advanced on behalf of the Minister.
[9]The Minister also relies on cases in which it has been held that, once an application for judicial review has been converted into an action, the proceeding continues subject to the rules governing actions: see, for example, Adams v. Canada (Royal Canadian Mounted Police) (1995), 182 N.R. 354 (F.C.A.); Shubenacadie Indian Band v. Canada (Minister of Fisheries and Oceans) (2002), 299 N.R. 241 (F.C.A.).
[10]In our view, these cases are also distinguishable, on the ground that they involved disputes about procedural issues arising after a conversion of an application to an action and did not concern the propriety of the conversion itself. In the present case, in contrast, the subject of the appeal is whether the Judge erred in converting the respondents' application into an action.
[11]For these reasons, the respondents' motion will be granted and the Minister's appeal will be dismissed, with costs to the respondents fixed in the sum of $6,500, inclusive of disbursements and G.S.T.