Samokhvalov v. Canada ( Minister of Citizenship and Immigration )
IMM-1174-94
MacKay J.
17/3/94
7 pp.
Application to stay removal order pending disposition of application for leave and for judicial review of immigration officer's rejection of application for humanitarian and compassionate review -- Applicants, citizens of Russia, arrived in Canada in 1991 -- Convention refugee status denied, removal order issued -- Application for humanitarian and compassionate review on basis of son's medical condition -- Evidence of unhappy dealings with Russian health authorities, good management of illness in Canada -- Federal Court Act, s. 18.2 confirming Federal Court's jurisdiction as matter of discretion to be exercised in proper case, to stay removal of applicant for leave and for judicial review under Immigration Act, s. 114(2), where issue raised by application serious, where irreparable harm to applicant if stay not granted, and where balance of convenience favouring grant of stay -- Respondent conceded serious issue raised concerning validity of immigration officer's conclusion based on findings set out in decision in light of evidence -- Applicants urged findings capricious or without regard to evidence, in particular concerning availability of medical and other assistance for appropriate management of child's condition if returned to Russia -- Current management of child's condition beneficial for him, his condition and family -- Disruption of those conditions would be harmful, particularly to child -- No assurance current conditions can be restored if interrupted -- Constituting irreparable harm -- In these circumstances balance of convenience favouring grant of stay -- Application allowed -- Federal Court Act, R.S.C., 1985, c. F-7, s. 18.2 (as enacted by S.C. 1990, c. 8, s. 5) -- Immigration Act, R.S.C., 1985, c. I-2, s. 114(2) (as am. by S.C. 1992, c. 49, s. 102).