• Oberlander has his citizenship revoked under s. 10 of the Citizenship Act
• Applies for JR of that decision
• Then an immigration inquiry starts at the Immigration Division under s. 27 of the Immigration Act
• Oberlander attends and never asks for an adjournment of the inquiry
• Then he goes to the FC and asks for a stay of the inquiry pending the JR of the decision under the Citizenship Act
• S. 72(1) of Act requires leave of the court for JR
• [10] Counsel for the Crown argues that the Trial Division had no jurisdiction to consider the motion to stay the immigration inquiry. The basis of his argument is that, although the motion to stay the immigration inquiry purports to be an interlocutory matter in the application for judicial review of the decision of the Governor in Council, which is a proceeding under the Citizenship Act, in substance it is an application for judicial review of an immigration matter, which is barred unless leave is obtained under subsection 72(1) of the Immigration and Refugee Protection Act (or its predecessor, subsection 82.1(1) of the Immigration Act).
• Court agrees. Appropriate procedure would have been to ask for an adjournment of the immigration inquiry. If it were refused, he could then seek leave and JR of the decision to not grant an adjournment.
o [17] I agree with counsel for the Crown that the motion to stay the immigration inquiry was an attempt to have the Court intervene in an immigration matter without first obtaining leave as required by subsection 72(1) of the Immigration and Refugee Protection Act. Such a tactic tends to undermine the purpose of the leave requirement. The judge would have been justified in finding an abuse of process, and refusing on that ground alone to hear the motion or to grant the relief sought. In the circumstances, however, I am prepared to assume without deciding that the Trial Division had jurisdiction under section 18.2 of the Federal Court Act to consider the motion and deal with it on the merits.
• The Court considers the case on its merits in any event:
o At paragraph 20: In my view, these arguments meet the very low threshold for an arguable case in the context of a stay application.
o However, no irreparable harm as it was not even clear the result of the inquiry would have been a deportation order.
Oberlander cited by other case-law:
• See Bergman v. Canada (Public Safety and Emergency Preparedness), 2010 FC 1129 (CanLII), <http://canlii.ca/t/2ddtj>
[17] A motion for a stay of removal is an injunction dependent upon a proper underlying application before the Court. In Oberlander v. Canada (Minister of Citizenship and Immigration), 2003 FCA 134 (CanLII), 121 A.C.W.S. (3d) 610, the Federal Court of Appeal made it clear that, when a person seeks injunctive relief in respect of a matter arising under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), that request for injunctive relief must be brought on the basis of a proper application for leave and for judicial review. The absence of a proper application for leave is a sufficient basis on its own for the Court to dismiss the motion.