Afridi v. Canada (Citizenship and Immigration), 2014 FC 193 : Temporary Resident Permit Refusal Upheld Despite Child’s Family Circumstances and Security Concerns

The Federal Court reviewed the refusal of a Temporary Resident Permit (TRP) application for a three-year-old child in Pakistan who was being cared for by his Canadian citizen aunt and uncle.

The Court upheld the refusal because the officer reasonably considered the child’s family circumstances, the absence of a recognized adoption, the security situation in Pakistan and the child’s existing ties to his biological family.

Key Principle

A TRP is a highly discretionary form of relief under section 24 of the IRPA. Ministerial guidelines may assist an officer but do not create a legal entitlement to a TRP or restrict the officer’s discretion.

An officer is not required to conduct a formal best interests of the child analysis in every TRP application. However, where the officer considers the child’s circumstances, family relationships and other relevant factors, the decision may be upheld if it falls within the range of reasonable outcomes.

Background

The applicant was a three-year-old child born in Peshawar, Pakistan. His biological father had died before his birth, and his biological mother was unable to provide for his needs. He had been cared for by his aunt since birth.

The applicant’s aunt and uncle were Canadian citizens and legal custodians of the child. The aunt wished to obtain medical treatment in Canada and sought to bring the child with her.

The family had previously attempted to sponsor the child, but the sponsorship could not proceed because Saskatchewan refused to issue a required “no objection” letter. The province considered the Pakistani guardianship arrangement insufficient to establish an international adoption.

The child’s TRV applications were refused twice. He subsequently applied for a TRP under section 24 of the IRPA.

Court Findings

The Federal Court found that the officer’s reasons, when read together with the GCMS notes, were sufficient to understand why the TRP was refused.

The officer considered the fact that the child’s Canadian custodians intended to live with him permanently in Canada, the absence of a recognized adoption in Pakistan and the suspension of adoptions from Pakistan. The officer was also concerned that issuing a TRP could circumvent Canada’s rules governing international adoptions and the safeguards associated with the Hague Convention.

The Court rejected the argument that the OP 20 Guidelines created an entitlement to a TRP. The guidelines were not binding and could not fetter the officer’s discretion under section 24.

The Court also found that the officer had considered the child’s circumstances and best interests, even though a formal best interests analysis was not mandatory in a TRP application. The officer considered the child’s relationship with his biological mother and siblings, his family ties in Pakistan, the security situation and the potential separation from his Canadian custodians.

Although the Court was sympathetic to the applicant’s circumstances, it found that the officer’s decision was reasonably supported by the evidence and fell within the range of possible outcomes defensible in fact and law.

Outcome

The Federal Court dismissed the application for judicial review and upheld the refusal of the Temporary Resident Permit.

Case Citation:

Afridi v. Canada (Citizenship and Immigration), 2014 FC 193 CanLII