Mbaye v. Canada (Citizenship and Immigration), 2016 FC 1037 : PGWP Application Did Not Preserve Status Because Applicant Failed to Extend His Temporary Status

Ø  Introduction

The Federal Court reviewed an exclusion order issued against a former international student who remained in Canada after his temporary resident permit expired while his PGWP application was pending.

The Court upheld the exclusion order, finding that simply applying for a PGWP before the expiry of the temporary resident permit did not create implied status because the applicant had not applied to extend his authorized period of stay.

Ø  Key Principle

Applying for a PGWP does not by itself extend temporary resident status.

Implied status under subsection 183(5) of the IRPR applies where a temporary resident has applied to extend the period authorized for their stay before that period expires.

A pending work permit application is not automatically an application to extend temporary resident status.

Ø  Background

The applicant, a citizen of Senegal, came to Canada as a student. His study and work permits expired on April 25, 2015, and he had not applied to extend either one.

He was subsequently issued a 30-day temporary resident permit, valid until June 24, 2015. Two days before that permit expired, he applied for a PGWP but did not apply to extend his temporary resident permit.

He remained in Canada after June 24, 2015. In December 2015, a report was prepared under section 44 of the IRPA, followed by an exclusion order for failing to leave Canada at the end of his authorized stay.

The applicant argued that his pending PGWP application gave him implied temporary resident status until a decision was made on the PGWP application.

Ø  Court Findings

The Federal Court rejected the applicant’s argument.

The Court explained that subsection 183(5) applies when a temporary resident applies to extend the period authorized for their stay and the application remains pending when their status expires. The applicant had not applied to extend his temporary resident permit.

The Court also noted that his study and work permits had already expired in April 2015. His later temporary resident permit did not authorize him to work or study and expired in June 2015.

Because he had not applied to extend any of these forms of status before they expired, he had no implied temporary resident status after June 24, 2015. His pending PGWP application therefore did not prevent the authorities from finding that he had remained in Canada beyond his authorized period.

The Court further found that the applicant was not eligible for a PGWP at the time because he did not have the required temporary resident permit of at least six months. The fact that the PGWP application was not mentioned in the exclusion order did not change the legal basis for the order.

The Court distinguished Sui, where the applicant had actually applied for restoration within the prescribed period and therefore benefited from implied status.

Ø  Outcome

The Federal Court dismissed the application for judicial review and upheld the exclusion order.

Case Citation:

Mbaye v. Canada (Citizenship and Immigration), 2016 FC 1037 CanLII