An Application for Restoration is Not a Shield Against a Finding of Non-Compliance

Foreign nationals must maintain status and if status lapses, they have 90 days to file an application for restoration. If such application is filed, CBSA waits for the decision (an approach consistent with Sui v. MCI 2006 FC 1314) –see ENF 5 Writing 44(1) Reports, 9.6 Restoration of Status.

If it’s not filed, even if the applicant is within the 90-day period, CBSA can proceed with enforcement action, finding that the individual is in non-compliance resulting in an exclusion order.

The Court may well be stricter than the CBSA. In Ouedraogo, person concerned was an international student, but let his permit lapse and was within the 90-day restoration period when he was pulled over by the police and CBSA was called in to deal with questions regarding status. Having found that no restoration had been filed, an exclusion order was issued pursuant to the IRPR. Through counsel, he filed for restoration. Removal occurred after a deferral request, and a stay motion based on the underlying judicial review application against the exclusion order. The Court (McVeigh, J.) found that there was discretion albeit “limited to examine whether on an overstay the applicant has applied for restoration or could have been implied to have applied within the 90-day period before he came to the attention of Immigration officials.” [paragraph 24]. The Applicant relied on Yu v. MCI 2005 1213 and argued that those that have lost their status but have applied can’t be said to be non compliant. In Yu, the applicant applied to restore “only one day after it expired and several months prior to the issuance of the exclusion order”. In that case, the Court set aside the exclusion order given the timely restoration application (and the failure to consider same on the part of the decision maker). That wasn’t the case before Justice McVeigh but the Applicant argued that there’s a right to restore throughout “the entire 90 days no matter what the intervening factors” [paragraph 35]. The Applicant went on to argue that failure to leave after expiry couldn’t be the basis of an exclusion order since it would eviscerate the restoration scheme. Ultimately, the Court in Ouedraogo found that:

  1. where there’s no application within the 90-day period there’s nothing in the IRPA or IRPR that stops the CBSA from proceeding with enforcement;
  2. even if an application to restore is in, the Officer should take that fact into consideration but that still doesn’t handcuff the CBSA. On this latter point the Court stated “[T]herefore, even where an application has been made, the simple existence of the application appears to have little effect, aside from the fact that it expands the scope of the delegate’s discretion.” [para 46].

The Manual provides further details as to what an Officer should consider if no application has been filed but there’s still time left on the clock:

…After taking appropriate steps to ensure that a restoration application has not been made, should an officer decide to write an A44(1) report and refer the report to the MD for review, the officer should articulate their reasoning for pursuing enforcement action in the decision, if such action is pursued prior to the expiration of the 90-day eligibility period. In order to adhere to the principles of procedural fairness and natural justice, the officer must consider each case on its own merits and may consider the following:

  • Does the foreign national state that they wish to remain in Canada and for what purpose?
  • Has the foreign national already made arrangements to depart Canada in the immediate future?
  • Is the foreign national evasive about their departure plans or the intent to remain in Canada?
  • Has the foreign national otherwise been in compliance with the terms and conditions of their temporary resident status?
  • If the foreign national does not apply for a restoration of status, is the officer satisfied that the foreign national will appear for future immigration interviews and/or depart Canada voluntarily?

If the officer is satisfied that the foreign national will seek to remedy lapsed status within the 90-day period, then the officer may wish to allow the 90-day application period to lapse before reviewing the case again in consideration of enforcement action.