Asciutto v. Canada (Citizenship and Immigration), 2023 FC 883 : Work Permit Decision Quashed Due to Unaddressed Temporary Resident Permit Application

The Federal Court reviewed the refusal of Igor Benedetto Asciutto’s LMIA-exempt work permit application and related TRP request. Although the applicant expressly requested a TRP several times and provided submissions addressing the relevant considerations, neither the refusal decision nor the GCMS notes acknowledged or analyzed that request. The Court granted judicial review because the failure to consider a distinct form of discretionary immigration relief was a determinative reviewable error.

Key Principle

Where an applicant clearly requests consideration for a TRP, an officer must assess that request independently and provide reasons demonstrating that the request was considered. A TRP may be available precisely where a foreign national is inadmissible or otherwise fails to meet statutory requirements, and an officer cannot simply ignore the request because another temporary status application is refused or because the officer reaches a different conclusion on the underlying work permit application.

Background

The applicant came to Canada in 2019 to establish an Italian restaurant, which opened shortly before the COVID-19 pandemic forced it to close. Concerns later arose that he had performed unauthorized work while overseeing restaurant activities. After an initial work permit refusal was returned for reconsideration, he made further submissions seeking both an LMIA-exempt work permit and, alternatively, a TRP.

Court Findings

• Applicant Clearly Requested a TRP

The applicant expressly asked for TRP consideration in submissions made in March and October 2021. One submission devoted approximately four pages to the factors relevant to TRP relief. The Court found this was more than sufficient to trigger the officer’s obligation to consider the request.

• TRP Request Was Entirely Absent From the Decision

Neither the final refusal letter nor the relevant GCMS notes referred to the TRP request. There was therefore no indication that the officer had turned their mind to this separate discretionary remedy, despite the applicant repeatedly asking for it.

• Low Threshold Applies to Making a TRP Request

The Court noted that a highly formalized application is not necessarily required to trigger TRP consideration. Jurisprudence establishes that even a letter may be sufficient where the applicant clearly asks an officer to exercise the statutory discretion to issue a TRP.

• Work Permit Refusal Did Not Eliminate TRP Consideration

The Minister argued that the TRP request was connected to concerns about unauthorized work and therefore did not require separate consideration. The Court rejected this reasoning because the legislation specifically contemplates TRPs for individuals who are inadmissible or otherwise fail to satisfy ordinary immigration requirements.

• Statutory Purpose Supported Independent TRP Assessment

The Court emphasized that the TRP provision exists to permit temporary admission where an applicant otherwise does not meet the requirements of immigration legislation but circumstances justify admission. This statutory purpose undermined the suggestion that refusal of the work permit could automatically dispose of the TRP request.

• Respondent Could Not Supply a Rationale Absent From the Decision

The Minister’s proposed explanation linking the TRP request to the work permit analysis did not appear anywhere in the officer’s reasons and was unsupported by cited authority. The officer’s complete failure to address the TRP request therefore constituted a reviewable error requiring redetermination.

Outcome

The Federal Court granted judicial review and remitted the matter to a different decision-maker for redetermination. Because the failure to consider the TRP request was dispositive, the Court did not address the applicant’s remaining challenges to the work permit refusal. No question was certified.

Case Citation:

Asciutto v. Canada (Citizenship and Immigration), 2023 FC 883 (CanLII)