Marenco v. Canada ( Minister of Citizenship and Immigration )
IMM-4709-94
Teitelbaum, J.
15/11/94
13 pp.
Application for order staying execution of removal order pending judicial review of Minister's decision refusing processing of applicant's permanent residence application from within Canada on grounds of humanitarian and compassionate considerations -- Following rejection of refugee status claim, Nicaraguan applicant developing relationship with Convention refugee who later obtained permanent resident status -- Two children born of relationship -- Applicant marrying father of children and applying for exemption pursuant to Act, s. 114(2) from normal requirement permanent residence application be made from outside Canada -- Application refused as (1) husband convicted of possession and trafficking of narcotics; (2) no real establishment of family in Canada, couple being on welfare; and (3) applicant not facing severe sanctions upon return to Nicaragua -- Application for judicial review of refusal dismissed-Officer conducting review of dismissal of second humanitarian and compassionate application stating applicant's husband not able to sponsor applicant -- Permanent resident husband who has not been ordered removed from Canada could not be denied right to file application for sponsorship of applicant even if presently incarcerated -- Respondent submitting erroneous statement made by officer may be ignored because decision was purely discretionary and official under no legal obligation to give reasons (Syed Shay v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. D-41 (C.A.)) -- Although officer conducting humanitarian and compassionate review not required to give reasons for rejection, where officer's notes submitted and one factor considered clearly erroneous, Court may conclude officer based decision on erroneous fact and quash decision -- To obtain stay of removal order, applicant must convince court (1) arguable case; (2) will suffer irreparable harm; (3) balance of convenience in his favour-Erroneous statement with regard to sponsorship satisfying arguable case criteria -- Facts of case not satisfying irreparable harm criteria -- Although abandonment by mother may cause irreparable psychological harm to children, irreparable harm not with regard to applicant; applicant having option of taking children with her thus ensuring no irreparable harm to children -- Upon release from prison, inquiry should determine whether husband danger to society-Dealing with narcotics creating danger to public thus husband should be removed from Canada and returned to Iran -- Stay of removal order denied -- Immigration Act, R.S.C., 1985, c. I-2, s. 114(2) (as am. by S.C. 1992, c. 49, s. 102).