TEMPORARY RESIDENT PERMITS (S.24 IRPA)

What is the legal test for Temporary Resident Permits (TRPs)?

 

This question was answered in the recent Federal Court decision of Krasniqi v. MCI, 2018 FC 743.

The Court states:

19. Equally, I am not persuaded by the Respondent's contention that applicants must demonstrate "compelling reasons" to be issued a TRP. While much of the Federal Court jurisprudence appears to have applied such a test, I will adopt the view articulated by Justice Harrington in Palmero v. Canada (Minister of Citizenship and Immigration), 2016 FC 1128 (F.C.) at para. 21:

I am concerned that the Guidelines speak of "compelling reasons", while the Act itself does not. Not only are guidelines not law, but they cannot go beyond the boundaries of the statute itself.

20. Federal Court jurisprudence indicates that there is no legal obligation for a decision-maker to consider and apply the guidelines; it is often repeated that the guidelines are not law, not binding, and do not create any legal entitlement in the context of a TRP application: Vaguedano at para. 35; Shabdeen v. Canada (Minister of Citizenship and Immigration), 2014 FC 303 (F.C.) at para. 16. However, this Court has also recognized that a decision-maker must nevertheless consider the relevant circumstances and the reasons advanced by an applicant when assessing eligibility for a TRP: Zlydnev v. Canada (Minister of Citizenship and Immigration), 2015 FC 604 (F.C.) at para 20; Mousa v. Canada (Minister of Citizenship and Immigration), 2016 FC 1358 (F.C.) at para. 9; Ali v. Canada (Minister of Citizenship & Immigration), 2008 FC 784 (F.C.) at para. 12. In my view, this obligation covers any relevant circumstances or reasons, whether or not they are specified in the guidelines.

[…]

27. Moreover, the decision-maker's analysis of Ms. Hashani's situation was wholly insufficient and demonstrated a complete lack of appreciation for her circumstances. Although framed in the language of "compelling reasons" (which I have already described as problematic above), Justice Shore wrote in the oft cited decision of Farhat v. Canada (Minister of Citizenship & Immigration), 2006 FC 1275 (F.C.) at para. 22, "[b]asically, the TRPs allow officers to respond to exceptional circumstances while meeting Canada's social, humanitarian, and economic commitments [emphasis added]." In my view, the case at bar potentially engages all three of those criteria, and I believe that a fulsome analysis of those interests may have yielded a different result.

According to s.24 of the Immigration and Refugee Protection Act:

Temporary resident permit

• 24 (1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.

 

In Krasniqi, the Learned Justice explicitly took issue with the long-standing policy guideline issued by IRCC requiring applicants to demonstrate “compelling reasons” on a Temporary Resident Permit Application whereas the Immigration and Refugee Protection Act (“IRPA”) only refers to a Temporary Resident Permit as being “justified in the circumstances”.  This case is instructive as it requires immigration to conduct a fulsome analysis of all the relevant circumstances and reasons, including social, humanitarian and economic criteria. If you are inadmissible to Canada and applying for a TRP to overcome an inadmissibility, under s.24 of the IRPA, this is a useful case to keep in mind while making your submissions to IRCC.
 

Link to read the full decision in Canlii.org:

https://www.canlii.org/en/ca/fct/doc/2018/2018fc743/2018fc743.html?searchUrlHash=AAAAAQAOYWhtZWQgJiB3ZW5uaWUAAAAAAQ&resultIndex=3