Arias v. Canada ( Minister of Citizenship and Immigration )
IMM-3685-94 / IMM-3706-94
Nadon J.
30/11/94
19 pp.
Applicants seeking stay of inquiry until decisions rendered with respect to applications for leave to commence applications for judicial review against continuation of Immigration Act, s. 19(1)(b) inquiry, and against decision rendered by immigration officer leading to inquiry-Applicant, citizen of Guatemala -- Recommendation applicant be granted landing from within Canada on humanitarian and compassionate grounds -- Subsequent application for permanent residence indicating (1) common-law husband, minor applicant and two Canadian-born children as dependants; (2) applicant unemployed since arrival in Canada -- Applicant separating from common-law husband and receiving welfare payments -- Immigration officer concluding applicant unable to work or to support herself on basis of having four children, possessing no marketable skills, not having taken any upgrading courses and not having family in Canada to help financially -- As result of officer's decision, inquiry directed to determine whether applicant member of inadmissible class of persons pursuant to Act, 19(1)(b) -- Stay of inquiry requiring: (1) serious issue; (2) irreparable harm; (3) balance of convenience favouring applicant: Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R., (2d) 123 (F.C.A.)-Applicant's submission Adjudication Division of Immigration and Refugee Board lacking jurisdiction to determine inquiry should be made before adjudicator -- Applicant attempting to preempt adjudicator's jurisdiction by seeking writ of prohibition preventing continuation of inquiry -- Belief adjudicator will make unfavourable decision not sufficient to prohibit continuation of inquiry -- No basis to applicant's submission of legitimate expectations based on alleged promise made by officer with respect to issuance of Minister's permit constituting serious issue-Doctrine of legitimate expectations not creating substantive rights-Adverse finding of serious issue -- Applicant raising Charter, s. 15 challenge with respect to s. 19(1)(b) on ground refusal of landing under backlog programme constituting exclusion from benefits accorded to able-bodied persons not burdened with family responsibilities -- Lower threshold for granting of stay with respect to Charter challenge -- No factual basis for Charter breach as officer's decision not preventing applicant from applying for landing -- If discriminatory, s. 19(1)(b) discriminating against all persons, male and female, who are unable to support themselves and their dependants, irrespective of cause thereof -- Argument s. 19(1)(b) discriminatory on ground of marital status frivolous as applicant's status as single mother questionable -- Argument s. 19(1)(b) discriminatory on ground of income rejected as income neither analogous to Charter, s. 15 grounds nor constituting immutable characteristic -- Applicant's condition result of own volition: applicant deciding to have four children knowing lack of sufficient income to meet needs; applicant's marital status own responsibility-Charter issue frivolous and thus not meeting test for stay -- No irreparable harm will result from permitting inquiry to proceed-Motions to stay immigration inquiry dismissed -- Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(b) (as am. by S.C., 1992, c. 49, s. 11) -- Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15.