Smith v. Canada ( Minister of Employment and Immigration )
92-T-1552
Walsh D.J.
23/11/92
11 pp.
Application for leave to commence application for interim stay of s. 27 inquiry, and for interim stay of inquiry concerning applicant Lenford Smith -- Application for leave to commence s. 18 application prohibiting continuation of inquiry, and to quash determination insufficient humanitarian and compassionate grounds to allow applicant to apply for landing from within Canada pending -- Applicant, Ann Smith, met Lenford Smith in 1989 at which time had commenced divorce proceedings from former husband and had ten-month old child from previous relationship -- Some months later Lenford moved in with her -- Applicants married within weeks of Ann Smith's divorce -- Couple had child in May 1991 -- In August 1991, after marital dispute, Ann informed immigration authorities Lenford working illegally -- Ann posted bail to secure Lenford's release -- Couple still living together and had second child in September 1992 -- Three children very attached to Lenford Smith -- Lenford has no one to return to in Jamaica, having lost contact with relatives -- In September 1992 Lenford Smith advised "no humanitarian and compassionate grounds identified to warrant processing case from within Canada" -- Common ground refusal based on conclusion marriage not bona fide, although no explanation for refusal given -- If deportation order issued, Lenford would require Ministerial consent to return -- Takes several years to process application for permanent residence from Jamaica -- No advantage in awaiting decision on s. 27 hearing -- Serious issues as to whether marriage bona fide and whether matter could be processed from within Canada -- As to irreparable harm, emotional and psychological effects on children of losing beloved father might be severe -- Balance of convenience favouring Lenford -- Consequences of awaiting decision on application to seek review of adverse finding on humanitarian and compassionate application, and outcome of review merely delay to respondent, whereas deportation major inconvenience for Lenford and family -- Application allowed -- Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5), 18.2 (as enacted idem) -- Immigration Act, R.S.C., 1985, c. I-2, ss. 27, 114(2).