Rajan v. Canada ( Minister of Employment and Immigration )
IMM-4548-94
Rothstein J.
28/10/94
5 pp.
Motion to stay transformation of departure order into deemed deportation order until after final determination of applications for leave and judicial review of negative humanitarian and compassionate decision and of departure order -- Immigration Act, s. 32.02(1) providing where no certificate of departure issued to person against whom departure order made, departure order deemed to be deportation order -- Since applicant planning to stay in Canada no certificate of departure will issue and departure order will be deemed deportation order -- Court lacking jurisdiction to grant stay as expressly contrary to provision of Act of Parliament -- Courts may not ignore or change statute law -- Llewellyn v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 154 (F.C.T.D.), disagreed with if meaning Court may make order contrary to Act of Parliament -- Only justification for Court's interference with requirement of compliance with express provision of statute or regulation if Charter or constitutional challenge thereto -- If requirements for stay met, Court may grant stay of requirement to comply with Act or regulation: RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 -- In such circumstances, Court to decide whether law inconsistent with Constitution, supreme law of Canada -- Even assuming deeming of deportation order could be stayed if s. 32.02(1) constitutionally challenged, not apparent applicant making such challenge -- Applicant's arguments related to alleged illegality of procedures leading to departure order, not to illegality of s. 32.02(1) -- While arguments based on alleged breaches of rules of natural justice or procedural fairness, even if such alleged illegality could be based on Charter arguments, not addressing operation of s. 32.02(1) and deeming of deportation order thereunder after specified period of time -- Court may grant stays from orders or decisions of inferior tribunals -- Court having jurisdiction to grant stay if immigration official ordering applicant to depart Canada on specified date if applicant establishing serious issue, irreparable harm, balance of convenience if deportation order executed favouring applicant -- Application to require applicant to leave Canada premature -- Duggal v. Canada (Minister of Employment & Immigration) (1992), 18 Imm. L.R. (2d) 20 (F.C.A.) and Ramnarine v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 404 (C.A.) (QL); Sereno v. Canada (Solicitor General), IMM-6119-93, Pinard J., 6/12/93, not yet reported clearly indicating as no jurisdiction in Federal Court of Appeal to decide appeal from decision on leave application in Trial Division, decision on stay application, being integral to leave process, also cannot be appealed -- If no jurisdiction for appeal of decision on stay application, no jurisdiction to appeal jurisdictional component of stay decision -- Court lacking jurisdiction to certify question for Court of Appeal on stay application -- Immigration Act, R.S.C., 1985, c. I-2, s. 32.02(1) (as enacted by S.C. 1992, c. 49, s. 22).