Osmani v. Canada (Citizenship and Immigration), 2019 FC 872 : TRP Refusal Set Aside Where Officer Relied on Pending PRRA and Work Permit Without Assessing the Applicant’s Compelling Circumstances

The Federal Court reviewed the refusal of a Temporary Resident Permit application made by a foreign national who had been found inadmissible for misrepresentation.

The officer concluded that a TRP was unnecessary because the applicant had a pending Pre-Removal Risk Assessment and was eligible for an open work permit. The Court found this approach unreasonable because it failed to meaningfully assess the compelling personal, family, and economic circumstances advanced in support of the TRP request.

Key Principle

A TRP application requires an individualized assessment of whether the applicant’s compelling need to enter or remain in Canada outweighs the risks associated with their inadmissibility.

An officer cannot refuse a TRP merely because another temporary immigration process, such as a PRRA or work permit, allows the applicant to remain in Canada for the time being.

Different immigration remedies serve different purposes, and the availability of one does not remove the obligation to properly decide another on its merits.

Background

The applicant, a Pakistani citizen, had previously lived and worked in the UAE. He had been arrested there after a cheque issued in connection with his employer’s investors was returned for insufficient funds.

When later applying to come to Canada with his family, the applicant did not disclose the prior arrest and detention, relying in part on a UAE police clearance indicating that he had no criminal record.

He was subsequently found inadmissible for misrepresentation and became subject to an exclusion order.

After CBSA initiated removal proceedings, the applicant filed a PRRA and separately applied for a TRP. His TRP submissions emphasized preserving his family unit in Canada, supporting his wife and children emotionally and financially, and continuing to contribute to his Canadian employer.

Court Findings

The officer’s reasons stated essentially that there were insufficient compelling grounds for a TRP because the applicant had an open PRRA and could obtain an open work permit.

The Court found that this failed to engage with the actual TRP request.

IRCC policy required consideration of matters such as the applicant’s immigration history, credibility, family composition, economic contribution, benefits to others, and whether the need to remain in Canada outweighed any risk to Canadian society.

The Court held that there was no meaningful analysis of the applicant’s stated compelling circumstances, including family unity, support for his wife and children, and his economic contribution.

The pending PRRA could not be treated as determinative. A PRRA primarily assesses risk upon removal, while a TRP serves the distinct purpose of responding to exceptional humanitarian, social, and economic circumstances despite inadmissibility.

The Court stated that although an officer may consider the existence of a PRRA, it cannot be used to avoid assessing the merits of the TRP application where other material circumstances have been advanced.

The Court also rejected the suggestion that the applicant could simply pursue other remedies such as judicial review, an H&C application, a deferral request, or a second TRP application. The proper course was for the officer to decide the existing TRP application on its merits.

Outcome

The Federal Court allowed the application for judicial review, set aside the TRP refusal, and remitted the matter to a different decision-maker for redetermination.

Case Citation:

Osmani v. Canada (Citizenship and Immigration), 2019 FC 872 CanLII