People who do not meet the requirements of the Immigration and Refugee Protection Act (the “IRPA“), and most commonly people who are criminally inadmissible to Canada and who are not eligible to apply for rehabilitation, require Temporary Resident Permits (“TRPs“) in order to enter or remain in Canada.
Section 24 of IRPA provides that:
A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
The Immigration, Refugees and Citizenship Canada (“IRCC“) TRP manual provides officers with the following guidance on issuing TRPs:
The TRP is always issued at the discretion of the delegated authority and may be cancelled at any time. The delegated authority will determine whether the need for the:
foreign national to enter or remain in Canada is compelling; and
foreign national’s presence in Canada outweighs any risk to Canadians or Canadian society.
Officers must consider the factors that make the person’s presence in Canada necessary and the intent of the legislation to maintain program integrity and protect public health and safety.
Economic interest to Canada
An urgent need for the foreign national’s presence in Canada should normally relate to economic or employment security of Canadian citizens or permanent residents. Confirm such need with appropriate officials of the national employment service or provincial government. Establish the bona fides of the individual as well as the employer or business proposal and the urgency of the case before making a decision to issue a TRP.
In the absence of compelling need, TRPs should not be issued, even if the inadmissibility and the risks are minor. The following are some examples of when a TRP should not be considered:
- for reasons of administrative convenience; only compelling reasons justifying the presence of a foreign national in Canada should guide the decision-maker
- when other legal or regulatory mechanisms are accessible, such as restoration of status or rehabilitation provisions
- for persons under a removal order without prior consultations with the Case Management Branch and/or CBSA
- when the presence of a foreign national in Canada would contravene to the objectives of the law, particularly those intended to protect the health of Canadians, to protect their security and promote international justice and security.
Requirements for a TRP
As the Federal Court noted in Mousa v. Canada (Citizenship and Immigration), to be issued a TRP, an applicant’s need to enter Canada must typically be compelling and sufficient enough to overcome any health or safety risks to Canadian society. The degree of need is also relative to the type of case. To determine whether favourable consideration is warranted, officers must weigh the need and risk factors in each case and must consider factors which make the person’s presence in Canada necessary, such as family ties. The assessment may involve analyzing the essential purpose of the person’s presence in Canada, the type/class of application and pertinent family compositions, the tangible or intangible benefits which may accrue to the person, and to others as well as other considerations. As well, where a child’s best interests form part of the compelling reasons, the visa officer’s reasons must demonstrate that those interests have been acknowledged.
The Compelling Threshold
The jurisprudence is mixed on whether TRP’s actually require a “compelling” threshold.
It is important to note that the “compelling” threshold standard found in the IRCC manual is not actually required by IRPA, which simply says that officers need to be satisfied that the TRP is “justified in the circumstances.” Hence, in the Federal Court decision Palmero v. Canada (Citizenship and Immigration), Justice Harrington commented “I am concerned that the Guidelines speak of “compelling reasons”, while the Act itself does not. Not only are guidelines not law, but they cannot go beyond the boundaries of the statute itself. In any event, there are compelling reasons in this case.”
In Palmero, the visa officer’s refusal reasons stated:
In setting the decision aside, Justice Harrington wrote:
The decision under review is unreasonable in a number of respects. The officer states that Mr. Palmero has family in the Philippines. That is true; but he is here and they are there because he needs to work to satisfy his obligation to support his family. He is 52 years of age and the only evidence in the record suggests it would be extremely difficult for him to find a job as a nurse in the Philippines.
It was said that he could apply from within Canada for permanent resident status on humanitarian and compassionate grounds. That is true. What the officer does not say is that such an application would not permit him to work, that he would be subject to removal at any time and that even if successful, he would then have to make a fresh application to sponsor his family.
A temporary resident permit with work permit would allow him to work and to reapply for a permanent resident visa. That application would include his wife and son.
It was said that he could apply for a visa from the Philippines. Counsel thought the only feasible application would be one to return to Canada on humanitarian and compassionate grounds. This is a lengthy process.
With respect to the officer’s note that Mr. Palmero had family in the Philippines, he did not state that he had a minor son. According to Mr. Justice Phelan in Ali, above, this was a fatal error “in the circumstances”. I agree.
The decision is helpful for two reasons. First, it shows that while officers have a wide range of discretion in approving TRP applications the decision still has to be reasonable. Second, it is to my knowledge the first judicial pronouncement questioning IRCC’s use of a “compelling” standard for issuing TRPs. In the same way that Kanthasamy struck down the “hardship” threshold for humanitarian & compassionate considerations, it will be interesting if IRCC’s “compelling” standard also becomes a thing of the past.
Fortunately, most officers in my experience exercise their discretion to issue TRPs in a comprehensive manner, and, if they are using a “compelling” standard, do weigh it flexibly against whatever the non-compliance or inadmissibility is.