Naeem v. Canada (Citizenship and Immigration), 2016 FC 1073 : PR Refusal Overturned Because Officer Failed to Consider the Applicant’s Request to Defer the Decision

Ø  Introduction

The Federal Court reviewed a permanent residence refusal involving an applicant who was also seeking ministerial relief from inadmissibility.

The Court overturned the refusal because the officer failed to consider the applicant’s written request that his permanent residence application be held in abeyance until the Federal Court decided his judicial review of the ministerial relief refusal.

Ø  Key Principle

Where an officer has discretion to defer a permanent residence application, an applicant who specifically requests a deferral is entitled to have that request considered.

The officer is not necessarily required to delay the application, but must make a decision on the request and provide reasons for exercising the discretion one way or the other.

Ø  Background

The applicant, a Pakistani citizen, had a lengthy immigration history involving inadmissibility under section 34(1)(f) because of his past membership in the APMSO and MQM-A.

He had a permanent residence application and a separate application for ministerial relief from inadmissibility. After the Minister refused the relief application, the applicant sought judicial review and asked the immigration officer to hold his permanent residence application in abeyance until the Federal Court decided the judicial review.

The applicant made this request in writing on November 20, 2015. The officer nevertheless proceeded to refuse his permanent residence application without addressing the request.

Ø  Court Findings

The Federal Court found a breach of procedural fairness.

The Court rejected the applicant’s argument that he had a legitimate expectation that his permanent residence application would automatically be deferred. The previous history and agreement with CIC did not establish such an expectation in sufficiently clear and unqualified terms.

However, the Court found that the officer was required to consider the specific deferral request.

The refusal decision made no mention of the request and provided no explanation for proceeding with the permanent residence application while the ministerial relief judicial review remained pending.

The Court emphasized that the officer had discretion to decide whether to defer the application. The problem was not that the officer refused to defer it, but that the officer failed to exercise that discretion at all. The applicant was entitled to a decision on his request and reasons explaining why it was accepted or rejected.

Because the record did not show that the request had been considered, the Court found that procedural fairness had been denied.

Ø  Outcome

The Federal Court allowed the application for judicial review and returned the matter to a different officer for reconsideration.

Case Citation:

Naeem v. Canada (Citizenship and Immigration), 2016 FC 1073 CanLII