Azucena v. Canada (Citizenship and Immigration), 2023 FC 363 : TRP Refusal Set Aside Where Officer Failed to Assess Compelling Circumstances

The Federal Court reviewed the refusal of Pinqui Morales Azucena’s TRP and related work permit applications. The officer concluded that she had not established unique circumstances or compelling reasons sufficient to overcome her inadmissibility for loss of status. The Court found the TRP refusal unreasonable because the reasons did not meaningfully analyze or weigh the circumstances advanced in support of the application.

Key Principle

Although TRP decisions are highly discretionary and reasons may be brief, an officer must meaningfully engage with the compelling circumstances presented by the applicant. Merely stating that all submissions were considered and that compelling reasons were not established does not demonstrate the required balancing of the applicant’s need to remain in Canada against the circumstances underlying the inadmissibility.

Background

The applicant entered Canada as a visitor in 2019 and mistakenly believed that her multiple-entry visa permitted her to remain until its expiry in April 2022. She later applied for PR through the Home Child Care Provider pathway. Her employer also obtained a positive LMIA, and she submitted applications for a TRP and LMIA-based work permit in February 2022.

Court Findings

• TRP Assessment Required a Balancing Exercise

A TRP allows a person who is inadmissible or otherwise non-compliant to remain in Canada where the circumstances justify relief. Relevant considerations include the reasons for the applicant’s presence, the purpose of the legislation, family circumstances, and benefits to the applicant and others.

• Officer Focused on Available Alternatives

The officer emphasized that the applicant could leave Canada, regularize her status, and pursue a work permit through other available mechanisms. The officer also noted that she had a valid visa and an LMIA and had not demonstrated hardship arising from departure.

• Compelling Circumstances Were Not Meaningfully Analyzed

Despite stating that all submissions were considered, the officer did not explain how the particular reasons advanced by the applicant were weighed. The GCMS notes contained conclusions but no meaningful analysis connecting the evidence to the refusal.

• Reasons Did Not Reveal the Officer’s Thought Process

The Court could not determine why the applicant’s circumstances were insufficient to justify a TRP. The absence of an intelligible weighing exercise meant the decision lacked justification, transparency, and intelligibility.

• Work Permit Refusal Depended on TRP Refusal

Because the applicant required temporary resident status before she could receive the requested work permit, the work permit refusal flowed from the refusal of the TRP application and was also set aside.

Outcome

The Federal Court granted judicial review, set aside the TRP and work permit refusals, and remitted the matter to a different officer for redetermination. No question was certified.

Case Citation:

Azucena v. Canada (Citizenship and Immigration), 2023 FC 363 (CanLII)