Encila v. Canada ( Minister of Citizenship and Immigration )
IMM-1525-96
Gibson J.
18/7/96
11 pp.
Application for stay of departure order and extension of work permit pending disposition of application for leave and judicial review of rejection of permanent residence application under "live-in caregivers in Canada" class filed on behalf of applicant, husband, four dependent children and of oral refusal to extend employment authorization-Applicant citizen of Philippines; husband, children resident there-Rejection based on evidence from Philippines eldest daughter medically inadmissible-Federal Court Act, s. 18.2 providing statutory power for grant of interim relief with respect to matters legally connected to, or incidental to, matter subject of judicial review-Clear, unequivocal nexus between expiration of employment authorization and issue of departure order that is base of application for interim relief-In appropriate circumstances, Court having jurisdiction to stay departure order-Immigration Regulations, 1978, s. 27(1)(a) specifically providing "where the Departure Order is stayed"-Not restricted to stays by operation of law-On facts, by operation of law (Immigration Act, s. 32.02(1) and Immigration Regulations, s. 27(1)) departure order matured into deportation order by date of resumption of hearing-As respondent not opposing, and based on review of material filed, leave granted on application for judicial review-(1) Serious issue to be tried-Evidence concerning medical inadmissibility of daughter not brought to applicant's attention-Failure to provide opportunity to respond to such evidence may constitute breach of duty of fairness-(2) Irreparable harm to applicant if stay not granted-Applicant in Canada for more than seven years as member of "live-in caregivers in Canada" class-Established excellent work record and record of community involvement-Established substantial ties in Canada, continuing to provide support to family in Philippines-"Live-in caregivers in Canada" class programme designed to assist workers invited to enter Canada on employment authorizations, to upgrade skills, ultimately seek permanent residence-Implication administrators of programme will encourage, assist those such as applicant-If required to return to Philippines, applicant's investment in Canada, good community relations severed to her great detriment-Canada's investment in applicant would be damaged-(3) Balance of convenience favouring granting stay-Court lacking jurisdiction to grant relief that would allow applicant to work in Canada pending disposition of application-Court can direct performance of duty, not outcome, except when only challenge to decision that officer took into account additional, extraneous considerations or if decision mandatory and required conditions met-Respondent agreeing to extend, renew work authorization-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.2 (as am. by S.C. 1990, c. 8, s. 5)-Immigration Regulations, 1978, SOR/78-172, s. 27(1)(a) (as am. by SOR/93-44, s. 19)-Immigration Act, R.S.C., 1985, c. I-2, s. 32.02(1) (as enacted by S.C. 1992, c. 49, s. 2).