El Rahy v. Canada (Citizenship and Immigration), 2018 FC 1058 : Court Finds TRP Refusal Unreasonable Where Officer Relied on Findings Contradicted by Applicant’s Study and Status Evidence

Ghadie El Rahy sought judicial review of the refusal of her temporary resident permit application under subsection 24(1) of the IRPA. She had lived in Canada on study permits since 2006 but had been without status since March 2015. The Federal Court confirmed that TRPs are exceptional and require compelling circumstances, but found the refusal unreasonable because findings concerning her studies and alleged inaction were contradicted by, or failed to engage with, the evidence.

Key Principle

A temporary resident permit is a highly discretionary and exceptional remedy intended to soften the harsh consequences of strict application of the IRPA where compelling circumstances justify allowing an inadmissible or non-compliant foreign national to enter or remain in Canada. However, even under this demanding test, an officer must accurately assess material evidence and adequately explain conclusions that significantly influence the exercise of discretion.

Background

El Rahy, a Lebanese citizen, had lived in Canada since 2006, except for a brief return to Lebanon in 2010. Her last valid study permit expired on March 31, 2015.

In July 2017, she applied for a TRP to regularize her status. She explained difficulties completing her studies, including her brother’s illness and delays allegedly connected to her immigration consultant. She also relied on her economic and community contributions. She and her brother operated two restaurants in Sherbrooke, she intended to open a third, paid taxes, employed immigrants and volunteered with Syrian refugees.

The officer refused the TRP, finding no compelling reasons overcoming her inadmissibility. The officer stated that she had never pursued the studies for which she entered Canada and characterized her lack of status as resulting from her own inaction.

Court Findings

• Compelling Circumstances Test Was Legally Appropriate

The Court rejected El Rahy’s argument that requiring exceptional or compelling circumstances imposed an unlawful burden. Section 24 creates an exceptional regime, and Federal Court jurisprudence recognizes that a TRP requires more than a wish or desire to remain in Canada. The officer therefore did not apply the wrong legal test merely by referring to compelling circumstances.

• Finding That Applicant Never Studied Contradicted the Record

The Court found that one premise of the refusal was factually inaccurate. Although El Rahy’s studies had not proceeded as originally planned, the evidence showed that she completed six courses at Bishop’s University in winter 2013 and five courses in winter 2014. The officer’s statement that she had never studied was therefore contradicted by the evidence.

• Officer Failed to Address Evidence Concerning Efforts to Maintain Status

The record also showed that El Rahy took steps with Quebec and federal authorities until at least 2016 concerning her immigration status. She explained that her consultant’s lack of diligence contributed to her falling out of status. The Court held that this evidence could not reasonably support a broad finding of inaction without the officer addressing it and explaining why it was given no weight. Because these considerations likely influenced the refusal, the reasons lacked adequate intelligibility.

Outcome

The Federal Court granted judicial review, set aside the TRP refusal and referred the matter to another officer for a new determination. No question was certified.

Case Citation:

El Rahy v. Canada (Citizenship and Immigration), 2018 FC 1058 (CanLII)