Palmero v. Canada (Citizenship and Immigration), 2016 FC 1128 : TRP Refusal Overturned Because Officer Failed to Consider the Applicant’s Family Responsibilities and Work Circumstances

Ø  Introduction

The Federal Court reviewed the refusal of a Temporary Resident Permit (TRP) application by a former live-in caregiver who had lost his status after failing to respond to an immigration request that he never received.

The Court overturned the refusal because the officer failed to properly consider the relevant circumstances, including the applicant’s role as the sole financial provider for his wife and minor son and the practical consequences of requiring him to leave Canada.

Ø  Key Principle

A TRP decision under section 24(1) of the IRPA must consider the relevant circumstances of the individual case.

Although TRPs are discretionary, an officer cannot ignore significant circumstances that directly support the request. The decision must meaningfully address the applicant’s reasons for needing to remain in Canada.

Guidelines referring to “compelling reasons” do not replace the statutory test under section 24(1), and administrative guidelines cannot expand the requirements of the legislation.

Ø  Background

The applicant was a Philippine citizen who came to Canada in 2009 under the Live-in Caregiver Program. After completing the required employment, he applied for permanent residence.

His permanent residence application was refused because he failed to respond to a request for further information. The applicant explained that his email account had been hacked and that he never received the request.

He subsequently applied for a TRP and work permit so that he could remain in Canada, work, reapply for permanent residence, and continue supporting his wife and minor son in the Philippines.

The officer refused the TRP, noting that the applicant had family in the Philippines, had not worked since his work permit expired, had limited funds, and could return to the Philippines to apply for a visa.

Ø  Court Findings

The Federal Court found the officer’s decision unreasonable.

The Court noted that the officer relied on the fact that the applicant had family in the Philippines but failed to recognize the significance of that fact. The applicant was in Canada precisely because he needed to work and financially support his wife and minor son.

The officer also suggested that the applicant could make an H&C application from inside Canada. However, the Court noted that such an application would not give him authorization to work and could leave him subject to removal while it was being processed. A TRP accompanied by a work permit could instead allow him to work and pursue another permanent residence application.

The Court was particularly concerned that the officer mentioned the applicant’s family in the Philippines but failed to mention that he had a minor son. Following Ali v. Canada, the Court considered this omission significant in the circumstances.

The Court also noted that the applicant was 52 years old and that the evidence suggested it would be extremely difficult for him to obtain comparable nursing employment in the Philippines.

Because the officer failed to properly assess these relevant circumstances, the decision did not fall within the range of reasonable outcomes.

Ø  Outcome

The Federal Court allowed the application for judicial review, set aside the TRP refusal, and returned the matter to another officer for redetermination.

Case Citation:

Palmero v. Canada (Citizenship and Immigration), 2016 FC 1128 CanLII