Arias et al. v. Canada (Minister of Citizenship and Immigration), (1994) 89 F.T.R. 183 (TD)

• Judge: Nadon, J.
• Court: Federal Court (Canada)
• Case Date: September 30, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 89 F.T.R. 183 (TD)

Arias v. Can. (M.C.I.) (1994), 89 F.T.R. 183 (TD)

MLB headnote and full text

Rosa Isela Valenzuela Arias and Eberlin Cordon (A Minor) (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3685-94; IMM-3706-94)

Indexed As: Arias et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court of Canada

Trial Division

Nadon, J.

December 15, 1994.

Summary:

An inquiry before the Immigration and Refugee Board was set to determine whether Arias (a claimant under the Refugee Backlog Regulations) was a member of an inadmissible class. Arias sought leave to commence applications for judicial review in the nature of prohibition against the continuation of the inquiry and of an immigration officer's decision. Meanwhile, Arias moved, in both proceedings, to stay the inquiry until her leave applications were heard, and if leave was granted, until decisions were rendered in respect of the applications for judicial review.

The Federal Court of Canada, Trial Division, dismissed the motions.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - An immigration officer concluded that an alien was unable to support herself (Immigration Act, s. 19(1)(b)) - An inquiry was set to determine whether she was a member of an inadmissible class under s. 27 of the Immigration Act - The alien sought leave to apply for judicial review of the officer's decision, asserting that pursuant to the Minister's representation, she had a legitimate expectation that she would be issued a Minister's permit - The Federal Court of Canada, Trial Division, refused to stay the inquiry pending the determination of the application, stating that even if the Minister made the alleged representations, the doctrine of legitimate expectations could not create substantive rights.

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer - [See Administrative Law - Topic 2267 ].

Aliens - Topic 1743

Exclusion and expulsion - Immigration - Exclusion - Persons unable or unwilling to support themselves - [See Aliens - Topic 5662 ].

Aliens - Topic 1743

Exclusion and expulsion - Immigration - Exclusion - Persons unable or unwilling to support themselves - An immigration officer concluded that there were reasonable grounds to believe that an alien was unable or unwilling to support herself and her dependents - An inquiry before the Immigration and Refugee Board was set to determine whether the alien was a member of an inadmissible class - The alien sought leave to commence applications for judicial review in the nature of prohibition against the continuation of the inquiry and judicial review of an immigration officer's decision - Meanwhile, the alien moved, in both proceedings, to stay the inquiry - The Federal Court of Canada, Trial Division, refused to stay the inquiry pending the determination of the applications, where the applications did not raise a serious issue and there was no irreparable harm that would result if a stay was denied.

Aliens - Topic 1844

Exclusion and expulsion - Immigration and Refugee Board - Jurisdiction - Arias applied for permanent residence - An inquiry before the Immigration and Refugee Board was set to determine whether Arias was a member of an inadmissible class under s. 27 of the Immigration Act - Arias sought leave to apply for judicial review in the nature of prohibition against the continuation of the inquiry, asserting that the Board lacked jurisdiction - The Federal Court of Canada, Trial Division, refused to stay the inquiry pending the determination of the application - The Board had jurisdiction under s. 80.1(1) which Arias could not preempt by seeking a writ of prohibition - See paragraphs 11 to 19.

Aliens - Topic 4065

Practice - Judicial review - Stay of proceedings - [See second Aliens - Topic 1743 ].

Civil Rights - Topic 921

Discrimination - Marital status - General - [See Civil Rights - Topic 5662 ].

Civil Rights - Topic 960.1

Discrimination - Mental or physical disability - General - [See Civil Rights - Topic 5662 ].

Civil Rights - Topic 1001

Discrimination - Immigration - General - [See Civil Rights - Topic 5662 ].

Civil Rights - Topic 5662

Equality and protection of the law - Immigration - An immigration officer concluded that an alien was unable to support herself (Immigration Act, s. 19(1)(b)) - An inquiry was set to determine whether she was a member of an inadmissible class - She sought leave to apply for judicial review of the officer's decision, asserting that she had been refused landing pursuant to s. 19(1)(b) which contravened s. 15 of the Charter - The Federal Court of Canada, Trial Division, refused to stay the inquiry pending the application, where the alien was not prevented from applying for landing - See paragraphs 28 to 35 - The court rejected the assertion that s. 19(1)(b) discriminated on the enumerated ground of gender and the analogous grounds of marital status - The court stated that income was not analogous to physical disability - See paragraphs 36 to 46.

Cases Noticed:

Toth v. Minister of Employment and Immigration (1988), 86 N.R. 302; 6 Imm. L.R.(2d) 123 (F.C.A.), appld. [para. 10].

James v. Minister of Employment and Immigration (1991), 45 F.T.R. 139; 15 Imm. L.R.(2d) 184 (T.D.), consd. [para. 16].

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, consd. [para. 26].

Reference Re Canada Assistance Plan Act - see Reference Re Constitutional Question Act (B.C.).

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R.(4th) 385, appld. [para. 29].

Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.), refd to. [para. 34].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; [1989] 2 W.W.R. 289; 56 D.L.R.(4th) 1; 34 B.C.L.R.(2d) 273; 36 C.R.R. 193; 25 C.C.E.L. 255, consd. [para. 38].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 12 [para. 16]; sect. 15 [para. 20]; sect. 15(1), sect. 15(2) [para. 37].

Constitution Act, 1982, sect. 52 [para. 16].

Immigration Act, R.S.C. 1985, c. I-2, sect. 9(1) [para. 32]; sect. 19(1)(b) [paras. 13, 40]; sect. 19(2)(d), sect. 20(1) [para. 4]; sect. 27 [para. 11]; sect. 27(2)(a), sect. 27(3)(a), sect. 27(3)(b) [para. 12]; sect. 27(6)(b) [para. 12]; sect. 32(2.1)(b) [para. 51]; sect. 80.1(1) [para. 14]; sect. 82.1 [para. 1]; sect. 114(2) [para. 5].

Immigration Act Regulations (Can.), Immigration Regulations, SOR/78-172, para. 14(1)(a) [para. 4].

Immigration Act Regulations (Can.), Refugee Claimant's Designated Class Regulations, SOR/90-40, sect. 3(2)(g) [para. 49].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1992), pp. 1167, 1168 [para. 38]; 1171 [para. 39].

Counsel:

Michael Crane, for the applicants;

Leigh Taylor and Charles Johnston, for the respondent.

Solicitors of Record:

Michael Crane, Toronto, Ontario, for the applicants;

George Thomson, Deputy Attorney General of Canada, for the respondent.

These motions were heard on September 30, 1994, at Toronto, Ontario, before Nadon, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on December 15, 1994.