Federal Court



Question was certified with respect to application for extension of temporary residence permit

Foreign nationals were French citizens in Canada on temporary resident permits which expired July 15, 2014. On June 16, 2014 foreign nationals applied for extension of time however application forms and documents were returned to them because they had failed to make sufficient payment and to provide other required documents. Citizenship and Immigration Canada’s covering letter to foreign nationals indicated that their request could not be dealt with unless they returned copy of letter, together with new complete application in proper form accompanied by correct fee and other required documents. On August 25, 2014, foreign nationals purported to comply, however their application forms were again sent back with same form covering letter indicating that certain information was still missing. On April 21, 2015 foreign nationals resubmitted everything and had yet to receive reply. On July 4, 2015, minister’s delegate signed exclusion order pursuant to s. 44(2) of Immigration and Refugee Protection Act (Can.) on grounds that foreign nationals had violated s. 29(2) of Act by failing to leave Canada at expiry of their temporary resident permits. Foreign nationals applied for judicial review, contending that exclusion order was invalid because they had applied for extension of their permits before they had expired, so that they maintained Canadian status under Regulations until their applications were refused on merits. Application dismissed. Decision of minister’s delegate to issue exclusion order was both reasonable and correct. Application within meaning of s. 183 of Immigration and Refugee Protection Regulations (Can.) must be such that decision maker is able to grant extension, or to reject it, on merits. Officer could not have made positive decision on application form submitted before temporary resident permits expired because applications were incomplete. Therefore, foreign nationals were required to depart Canada under s. 183(1) of Regulations and s. 29 of Act. Question certified: When temporary resident has applied for extension of period authorized for his or her stay, but application is returned to applicant, due to incompleteness, in accordance with s. 12 of Regulations, does applicant benefit from implied status until he or she actually submits complete application and that application is either refused or allowed?.

Stanabady v. Canada (Minister of Citizenship and Immigration) (Dec. 11, 2015, F.C., Sean Harrington J., IMM-2838-15, IMM-2840-15) 262 A.C.W.S. (3d) 194.

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