The Federal Court reviewed the
refusal of Selvin Sylvester Williams’ applications for humanitarian and
compassionate relief and, alternatively, a Temporary Resident Permit. Mr.
Williams had lived in Canada since age 13, had two Canadian-born children, substantial
family ties and establishment, but was inadmissible for serious criminality
arising from several convictions, including firearms-related offences.
The Court upheld the refusal of
H&C relief, finding that the officer reasonably weighed his criminal
history against his rehabilitation, establishment, family ties, and the best
interests of his children. However, the TRP refusal was unreasonable because
the officer treated Mr. Williams’ desire to remain permanently in Canada as
inconsistent with temporary status and failed to conduct the distinct
forward-looking risk analysis required under section 24(1) of the IRPA.
Key Principle
A foreign national’s intention to
remain permanently in Canada does not, by itself, prevent the issuance of
temporary status or a TRP. Section 22(2) of the IRPA expressly recognizes dual
intent. The relevant question is whether the person would leave Canada if
required at the end of the authorized period. In a TRP application involving
criminal inadmissibility, the officer must separately assess whether the
applicant’s compelling reasons for remaining in Canada outweigh the
forward-looking risk posed by continued presence. An officer cannot simply
import the broader criminality analysis from an H&C decision into the
distinct TRP framework.
Background
Mr. Williams became a Canadian
permanent resident in 2001. His criminal history included assault, breaches of
court orders, escape from lawful custody, unauthorized possession of a
prohibited device, and being an occupant of a vehicle while knowing a firearm
was present. A deportation order was issued in 2017 because of serious
criminality.
He sought H&C relief under
section 25(1) of the IRPA and, alternatively, a TRP under section 24(1). His
evidence emphasized his long residence in Canada, steady employment, family
relationships, two Canadian-born children, hardship in Jamaica, and significant
rehabilitative efforts. His parole and probation evidence was highly positive,
and the officer accepted that he had made substantial changes since his last
convictions.
Court Findings
• H&C Refusal Was
Reasonable
The officer gave considerable
weight to the best interests of Mr. Williams’ children and recognized his
establishment, employment, family ties, and rehabilitation. However, the
officer also considered his repeated criminal offending, including serious firearms-related
conduct, to be a significant negative factor.
The Court held that the officer
was entitled to conclude that the positive evidence did not outweigh the
seriousness and pattern of criminality. The applicant’s challenge effectively
asked the Court to reweigh the relevant factors, which was not the Court’s
role.
• Desire to Remain Permanently
Did Not Defeat TRP Eligibility
The officer refused the TRP
largely because Mr. Williams clearly intended to stay in Canada permanently and
had much stronger ties to Canada than Jamaica.
The Court found this reasoning
unreasonable. Wanting permanent residence does not mean a person would refuse
to leave Canada if temporary authorization expired. Section 22(2) expressly
permits temporary residence despite an intention to become a permanent
resident, provided the person will leave if required. The officer therefore
needed to assess that question independently rather than infer non-compliance
from Mr. Williams’ long-term immigration objective.
• TRP Required a Distinct Risk
Analysis
The Court also found that the
officer could not simply adopt the criminality assessment from the H&C
decision. H&C and TRP relief serve different statutory purposes.
For a TRP, the key analysis was
whether Mr. Williams’ compelling reasons to remain in Canada outweighed the
prospective risk he posed. That assessment had to consider his rehabilitation,
likelihood of further offending, seriousness of the offences, and the temporary
and revocable nature of a TRP. A separate, forward-looking analysis was
therefore required.
Outcome
The Federal Court allowed
judicial review in part. The H&C refusal remained undisturbed, but the TRP
refusal was set aside and remitted to a different decision-maker for
redetermination.
Case
Citation:
Williams v. Canada (Citizenship and Immigration), 2020 FC 8 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
