Silva v. Canada ( Minister of Citizenship and Immigration )
IMM-3769-93
Simpson J.
16/6/95
8 pp.
Judicial review of immigration officer's decision insufficient humanitarian and compassionate (h & c) grounds for permanent residence- Applicant's h & c application approved in principle by way of letter on basis of marriage to Canadian citizen -- Applicant's husband informing ministry of marriage failure and withdrawal of his sponsorship of applicant (notification) -- Despite notification, Minister authorized waiver of Act, s. 9(1) and Regulations, s. 8(1) requirements (Minister's exemption) -- During interview preceding "shuffle" process to execute outstanding removal order against appellant, marriage failure arising and consequently exemption denied -- Sivacilar v. Minister of Employment and Immigration (1984), 57 N.R. 57 (F.C.A.) decision holding applicant becoming person with right to come into and remain in Canada upon issuance of order in council (OIC) providing all statutory requirements fulfilled -- OIC procedure replaced by Minister's exemption; both requiring satisfaction of all statutory requirements -- Respondent contending Minister's exemption effective only at point of landing and granting no rights preceding landing -- Words "should" and "should be facilitated", upon which Sivacilar decision turning, remaining unchanged in Regulations, s. 2(1), and changes in wording of operating manual cannot be used to avoid effect of Sivacilar decision -- However, Sivacilar not applying on facts of case as execution of outstanding removal order condition precedent to landing -- Removal order matter of substance, and cannot be viewed as simple process issue even where proposed execution undertaken with applicant's co-operation -- Minister's exemption not conferring upon applicant right to come into or remain in Canada -- Immigration Act, R.S.C., 1985, c. I-2, s. 9(1) (as am. by S.C. 1992, c. 49, s. 4) -- Immigration Regulations, 1978, SOR/78-172, ss. 2(1), 8(1).