When do you lose your temporary resident status?
Author/ Adam Hummel
The recent Federal Court decision of Shekhtman v. Minister of Citizenship and Immigration addresses the issue of how much time one has to apply to restore their immigration status in Canada once it is lost. The decision on this case provides some guidance more generally as well about when one can be found to have lost their temporary resident status. Before we get to the decision in this matter however, a bit of background about the restoration process and what your options are.
Restoration Applications - Background
One of the most important things for anyone in Canada on temporary status, whether on a visitor, study or work permit, is to make sure that you always maintain that status. Keeping track of the expiry date of these permits is extremely important, since your options to extend your status is always based on when those permits expire.
Unfortunately, people do fall out of status in Canada, and this happens primarily in two different ways:
- They apply to extend their permits on time, and their applications are denied; or
- They forget/neglect to apply before their permits expire.
No matter how it happens, when you fall out of status in Canada, you find yourself in a predicament which can sometimes be hard to remedy. However, for the purposes of this blog, there is one way that you can get yourself back into status, and that is by filing an application for restoration of your status.
The most important aspect of a restoration application, I would argue, is that it gets submitted on time! Typically, immigration lawyers will tell you that you have 90 days to file a restoration application from the date you lost your temporary status. The question that recently came up with a client of mine however, was: when did he actually lose his temporary status in Canada?
The answer to this question was recently clarified by the Federal Court, and is the subject of this post.
The criteria and rules for filing an application for restoration are found in the Immigration and Refugee Protection Regulations (SOR/2002-227), at Regulation 182, which states:
On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act.
In English, what this provision means is that in many cases (though not all) if you have lost temporary resident status in Canada, then within 90 days of losing that status, you can make an application to restore that status, assuming that you still comply with many of the requirements that were needed at the time when you got the status that you have just lost.
The time to apply for restoration then is when you lost your temporary resident status, and even though this sounds like a fairly straightforward date to determine, it can be a little complicated.
The Shekhtman Case
On September 25, 2015, the Applicant submitted an application to extend his temporary resident status in Canada, as his visitor record was set to expire on September 30, 2015. He did not hear anything about his application for many months, but thanks to the rule on implied status, until a decision was made he remained in status as a visitor in Canada.
Finally, on December 7, 2016, over a year after submitting his application, he received a letter from CIC refusing his extension application. The problem? The date on his letter was July 14, 2016, 146 days before he received the refusal letter.
We spoke with our client who wanted to apply for restoration, but the problem we faced was that based on the date of his letter, the Applicant’s application was refused on July 14, 2016 - this is arguably the date that he lost his temporary status in Canada. However, he only learned of this refusal in December 2016, well past the 90 day deadline to file an application for restoration.
We decided that since this was not our client’s fault - he had no way of knowing that his application was refused in July - we would just file an application for restoration within 90 days of when we received the refusal letter, arguing that it only made sense to have the 90 days start to run from that date, since it was impossible to apply within 90 days of the July date.
We filed the application within 90 days, on March 6, 2017. In December 2017, our restoration application was refused because it was submitted “after the regulated 90 day period.”
When we received this refusal, we submitted an application for leave and judicial review to challenge this decision in the Federal Court. In September 2018, the Honourable Mr. Justice Gascon granted our application for judicial review.
At issue in the judicial review was essentially: on what date does one lose their temporary resident status?
This determination really boiled down to two possible dates of when one can be found to lose their status:
- The date on the refusal letter; or
- The date the decision was received by the Applicant.
In this case, the Judge provided a long and methodical assessment of the case and the evidence, and concluded that it makes no sense for someone to lose their temporary resident status in Canada without actually knowing of this loss. He wrote the following in his decision:
 In sum, the only reasonable interpretation of paragraph 183(5)(a) of the Regulations is that a decision cannot be considered “made” until it is communicated in one way or another to the temporary resident. It is CIC’s responsibility to inform the temporary resident of the fact that his or her request for exclusion has been refused. Arguably, a decision under paragraph 183(5)(a) could be considered to be communicated in several different ways. It could be when the refusal letter is sent by CIC to the temporary resident, assuming that the Canadian immigration authorities have the required evidence to prove it on a balance of probabilities. It could also be when the temporary resident is deemed to have received the refusal letter, or when he or she actually receives it. In the absence of regulations specifying the moment on which a decision is deemed to have been made under subsection 183(5) of the Regulations (as opposed, for example, to what is set out in section 182.1), the determination of the date on which a decision has actually been communicated under that provision will depend on the evidence available in each situation.
 In the case of Mr. Shekhtman, I do not have to decide whether that date is the day on which the Refusal Decision was sent, received, or deemed received. Here, for the above reasons, there is no evidence allowing to reasonably determine that the Refusal Decision has been sent by the Canadian immigration authorities on either July 14, 2016 or November 30, 2016. There is only evidence of the Refusal Decision having been received by Mr. Shekhtman. The evidence on the record about a date on which the Refusal Decision was communicated to Mr. Shekhtman is December 7, 2016, when Mr. Shekhtman received it. This means that Mr. Shekhtman’s restoration application was not filed late.
What is important in the above is that Justice Gascon determined that a decision can only be made, and one can only be found to have lost their temporary resident status in Canada, on the date that the decision revoking that status is “communicated in one way or another to the temporary resident.” In this case, Mr. Shekhtman was determined to have lost his status on the date he received the letter - December 7, 2016 - which means that he had 90 days from that date to file his restoration application. It was filed in time (phew!)
Importance of this case
This case is important and relevant because it provides clarity and support to this idea that a decision can only be considered to be “made” when that decision is adequately communicated to the applicant. The applicant does not necessarily need to know the reasons for the decision, but the moment an applicant is made aware that their application has, for example, been refused, then they ought to know that they will have to take steps to restore their status, and the 90 day period starts to tick.
This is important because there are many places in the immigration legislation, including the Immigration and Refugee Protection Act (IRPA) and the Regulations, where one finds language about when a “decision is made.” The Shekhtman decision ought to be taken into account now when such considerations are made, since applicants have remedies that flow from each and every decision made by an immigration officer, and often those remedies are time-limited. If you miss a deadline, you may be deprived of your chance to stay in Canada, and so the more clarity there is on this subject, the more accessible those remedies are to individuals seeking to remain in Canada with valid status.
For immigration law practitioners, this case demonstrates that you must cautious when approaching deadlines on behalf of your clients, and make sure that you know when letters are received, when decisions are communicated to your clients, and the content of those letters and/or decisions. Though 90 days seems like a long time, with the time it takes to receive Access to Information (ATIP) Requests or the full reasons for a decision, those three months sometimes go by much too quickly.
Of course, every file is unique and depends on its specific facts. For this reason, it helps to work with a lawyer who can assist you with all types of applications and who has familiarity with the relevant case law and how it fits into the Canadian immigration regime.
If you have an application that has been refused, and are considering making an application for restoration, make sure that you immediately contact a lawyer at Mamann, Sandaluk & Kingwell LLP who will be happy to meet with you and inform on what your next steps should be.
This blog is not intended to serve as comprehensive treatment of the topic, nor is it intended to be legal advice. Since every case is fact specific, nothing replaces retaining an experienced and qualified lawyer who can help guide your actions and give you good legal advice.
1 Shekhtman v. Minister of Citizenship and Immigration, 2018 FC 964
2 With the rule on implied status, it means that if you have applied to extend, for example, your visitor or study permit, then you remain in implied status until a decision is made on your extension application. If your extension application is refused, your implied status in Canada ends on the date that refusal decision is made. If your extension application is approved, then your status ends on the date of the expiry of the new permit. The basis for this is found in R183(5) of the Regulations.