Docket: IMM-1322-24
Citation: 2025 FC 1359
Ottawa, Ontario, August 8, 2025
PRESENT: The Honourable Mr. Justice Gleeson
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BETWEEN: |
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SINEM CETIN |
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Applicant |
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and |
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The issues raised in this Application are common to those raised in each of the 15 additional Applications identified at Schedule “A”
to this Judgment and Reasons. Pursuant to the March 19, 2025 Order of Associate Chief Justice Martine St-Louis, the Parties have filed a single set of further submissions addressing the common and only issues raised in the 16 Applications. The Applications have been heard together.
[2] A copy of this Judgement and Reasons shall be placed on each of the Court Dockets identified at Schedule “A.”
[3] In response to earthquakes that impacted Türkiye and Syria in February 2023, the Minster of Immigration, Refugees and Citizenship Canda [IRCC] introduced a Temporary Public Policy [TPP] that exempted nationals of Türkiye and Syria from certain requirements of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR] in order to prolong their stay in Canada.
[4] The Applicants were refused work permits under the TPP, the IRCC decision makers [Officers] finding that the Applicants did not meet the requirements of the TPP because they were not physically present in Canada at the time the decision was rendered.
[5] Pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], the Applicants seek judicial review of the refusal decision. The Applicants argue the Officer erred in interpreting the TPP as requiring an applicant to be physically present in Canada both at the time of application and at the time a decision is rendered on the application. The Applicants further argue a breach of fairness, and that the Officers’ decisions were unreasonable.
[6] For the reasons set out below, I am not persuaded that the Officers erred in interpreting the terms of the TPP, that there was a breach of procedural fairness in the processing or determination of the TPP applications, or that the refusal decisions are unreasonable. The Applications are dismissed.
II. Background
A. The TPP
[7] On February 6, 2023, a 7.8 magnitude earthquake struck parts of Türkiye and Syria. The record establishes that the earthquakes caused massive amounts of damage to infrastructure, killed tens of thousands of people, and injured tens of thousands more.
[8] On March 29, 2023, the TPP, adopted pursuant to section 25.2 of the IRPA, came into effect. The TPP supported Canada’s response to the earthquakes by “exempting certain immigration processing fees for nationals of Türkiye and Syria and facilitating access to work and study permits for those who may wish to prolong their stay in Canada before returning due to the earthquake”
(Temporary Public Policy for nationals of Türkiye and Syria affected by the earthquakes of February 6, 2023). The program, initially in effect until September 25, 2023, was renewed by the Minister on September 28, 2023, and ultimately closed on January 3, 2024.
[9] To benefit from the TPP, those seeking a work permit or study permit were required to satisfy the following criteria:
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be a national of Türkiye or Syria in Canada with valid temporary resident status; and
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had applied for:
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an extension of their authorization to remain in Canada as a temporary resident under section 181 of the IRPR, or a temporary resident permit; and
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a work permit under section 200 or 201 of the IRPR or a study permit under section 216 or 217 of the IRPR.
[10] To clarify reported confusion relating to the ability of TPP applicants to return home pending a determination of their TPP application, a licensed immigration consultant [IC] sought clarification on the issue from IRCC, posing the following question:
Will in Canada applicants be able to leave Canada while waiting for that decision on their open work permit applications and then come back to Canada after the approval? (Affidavit of Busra Bilsin at Exhibit “B”).
[11] An IRCC official responded as follows:
As long as an In Canada applicant has valid TR status, then they could leave Canada while waiting for a decision, but they would need to ensure that they have the legal right to re-enter Canada (e.g. hold a valid TRV and that their passport has not expired). Upon arrival at a Canadian port of entry, travellers must satisfy a CBSA border services officer (BSO) that they meet the requirements for entry into Canada. (Affidavit of Busra Bilsin at Exhibit “B”).
[12] It is not disputed that this response was shared with other ICs and their clients. Nor is it disputed that, relying on this IRCC response, many applicants left Canada after submitting their work or study permit applications under the TPP. Many of these individuals, including the Applicants in these proceedings, subsequently received negative decisions on their TPP applications on the grounds that they did not meet the TPP eligibility criteria because they were absent from Canada at the time a decision was to be rendered.
III. The legal framework
[13] Section 25.2 of the IRPA provides the Minister with the authority to exempt persons from requirements of the IRPA and the IRPR, including the payment of fees, where an applicant complies with the conditions set out by the Minister:
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Public policy considerations
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Séjour dans l’intérêt public
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25.2 (1) The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the foreign national complies with any conditions imposed by the Minister and the Minister is of the opinion that it is justified by public policy considerations.
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25.2 (1) Le ministre peut étudier le cas de l’étranger qui est interdit de territoire ou qui ne se conforme pas à la présente loi et lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, si l’étranger remplit toute condition fixée par le ministre et que celui-ci estime que l’intérêt public le justifie.
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Exemption
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Dispense
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(2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).
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(2) Il peut dispenser l’étranger du paiement des frais afférents à l’étude de son cas au titre du paragraphe (1).
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[14] The conditions imposed by the Minister under section 25.2 of the IRPA are not guidelines, they are requirements or conditions that bind a delegated decision maker. As was recently reiterated by Justice Richard Southcott, “an IRCC officer exercising delegated authority [under a TPP] does not have the discretion to depart from such conditions”
(Rohani v Canada (Citizenship and Immigration), 2024 FC 1037 at paras 32-35 [Rohani]). The conditions imposed by the Minister cannot be ignored or waived.
IV. Previous judicial review and settlement
[15] On September 19 and October 11, 2023, two Applications for Leave and for Judicial Review were filed with this Court in the form of proposed class proceedings, which challenged the initial refusal decisions in more than 100 applications due to a failure to meet eligibility requirements. The Parties reached a settlement that resulted in the two proceedings being discontinued on the understanding that IRCC would reassess the applications of those in the proposed class proceedings where eligibility for the TPP was the reason for refusal. The terms of settlement included the requirement that each of the Applicants be provided the opportunity to provide proof of their physical presence in Canada and any additional submissions prior to a final reassessment of the application being undertaken:
[…]
3. IRCC will send these applicants a request letter giving them a 45-day deadline to provide proof of their physical presence in Canada and any other submissions they want reviewed;
4. IRCC will finalize the reassessment of the application within 30 days after the deadline (that is, within 75 days of the request letter), taking into consideration any new evidence if provided in the time required. If no new evidence is provided in the time required, IRCC will finalize the application based on what is on file.
[…]
(Further Affidavit of Budra Bilsin at para 4, Exhibit “B”; Affidavit of Tanisha Effs at para 8, Exhibit “A”)
[16] Each of the Applicants in the matters now before the Court agreed to the terms of settlement (Further Affidavit of Budra Bilsin at Exhibit “B”
).
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Decisions under review
[17] In accordance with the terms of settlement, the Applicants in these matters each received a letter from IRCC requesting proof of physical presence in Canada prior to the reassessment of their respective applications. In each case, the Applicants responded and advised IRCC that, for one reason or another, they remained outside of Canada.
[18] In each instance, the TPP application was again refused on reassessment. The decision letter in IMM-1322-24, which is representative of the decision letters in the remaining matters, states:
Based on your application and accompanying documentation that you have provided, I have carefully considered all information and I am not satisfied that you meet the requirements of the Immigration and Refugee Protection Act and Regulations. Your application as requested is therefore refused.
[X] Based on the information you submitted, I am not satisfied that you are physically in Canada at this time. Therefore, you do not meet the eligibility requirements for a work permit issued under the Temporary special measures in response to the 2023 earthquakes in Türkiye and Syria.
[19] The supporting Global Case Management System notes state:
Client is requesting a RO1 WP under the Temporary special measures in response to the 2023 earthquakes in Türkiye and Syria. Application was re-opened for redetermination and a request letter was sent for updated documents and proof of physical presence in Canada. Client submitted a letter of explanation that states they cannot take a leave of absence from their job in Türkiye at this time. Exit/Entry result show client left Canada 2023/09/22, no re-entry indicated. I am not satisfied that client is physically in Canada at the time of decision, therefore client is not eligible for this type of WP. Application refused.
VI. Preliminary Issue
[20] The Applicants argue the Affidavits of licensed ICs are admissible as new evidence in these matters as an exception to the general rule that the evidentiary record before the Court on judicial review is restricted to that which was before the decision maker. The Applicants submit the evidence highlights the Respondent’s uneven practice in implementing the TPP and supports the Applicants’ fairness and legitimate expectations arguments. The Respondent does not oppose the admissibility of the Applicants’ affidavit evidence.
[21] The majority of the Affidavit evidence filed by the Parties did not form part of the record before the decision makers. However, I am satisfied that this evidence falls within the recognized exceptions to the general rule on judicial review (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 19-20). The evidence both informs the Court of general background circumstances that is of assistance in understanding the issues raised and is also properly relied on to advance the Applicants’ fairness and legitimate expectation arguments. All the evidence filed by the Parties has been considered.
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Issues
[22] Having reviewed the Parties’ positions, I have framed the issues as follows:
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Did the Officers unreasonably conclude that the TPP required the Applicants’ physical presence in Canada at the time of decision?
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Was there a breach of fairness?
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Does a question of general importance arise?
VIII. Standard of Review
[23] The Applicants submit that the decisions are to be reviewed on the correctness standard because the impugned decisions engage questions of interpretation, and alleged breaches of procedural fairness.
[24] With respect to the review of the Officers’ substantive decisions, including the Officers’ interpretation of the TPP, the Supreme Court of Canada has held that the reasonableness standard of review presumptively applies (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 7, 10 [Vavilov]). The presumption will only be rebutted by a clear legislative intent, or where the rule of law requires that the correctness standard apply (Vavilov para 10).
[25] Four types of questions fall into the latter category: 1) constitutional questions; 2) general questions of law of central importance to the legal system as a whole; 3) questions related to the jurisdictional boundaries between two or more administrative bodies and 4) where a statute provides both courts and administrative bodies with concurrent first instance jurisdiction over a legal question (Vavilov para 17; Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association, 2022 SCC 30 at para 28).
[26] The Applicants submit that because the issue raised is one of interpretation the rule of law principle requires a single and correct interpretation of the TPP. As such, it is argued this is a matter that is of central importance to the legal system as a whole to which the correctness standard of review applies.
[27] This argument disregards the teaching of the Supreme Court in Vavilov. To conclude all issues of interpretation are of central importance to the legal system is to ignore that exceptions to the reasonableness standard are limited (Vavilov at paras 69-70). As Vavilov teaches, questions of central importance to the legal system are not simply those matters that might engage a wider public concern or touch on an issue of importance when framed in the abstract (Vavilov at para 61). Instead, they are questions that impact on the administration of justice as a whole.
[28] The interpretation of the TPP is unquestionably of significant importance to the individual Applicants but it does not have “implications beyond the decision[s] at hand”
(Vavilov at para 59). The presumptive standard of reasonableness applies and has been adopted.
[29] With respect to the fairness issues raised, strictly speaking, no standard of review applies. However, where a breach of fairness is alleged, a reviewing court must assess whether the process was fair having considered all the circumstances (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54). The correctness standard best reflects the court’s role in determining the alleged breach of fairness in these matters.
IX. Analysis
A. The Officers’ interpretation of the TPP was not unreasonable
[30] The portion of the TPP relevant to these matters sets out the conditions of eligibility as follows:
Conditions (eligibility requirements)
Based on public policy considerations, delegated officers may grant an exemption from the requirements of the Regulations identified below when a foreign national meets at least one of the following conditions:
[…]
2. The foreign national
i. Is a national of Türkiye or Syria in Canada with valid temporary resident status; and
ii. Has applied for
a. an extension of their authorization to remain in Canada as a temporary resident under section 181 of the Regulations, or
b. a temporary resident permit; and
c. Has applied for a work permit under section 200 or 201 of the Regulations.
[…]
[31] The Applicant argues that on a plain reading, the conditions as provided for in the TPP cannot be interpreted as requiring an applicant to have valid temporary status in Canada or to be physically present in Canada at the time of determination. These requirements need only be satisfied at the time of application; had the Minister intended otherwise that requirement would have been clearly set out in the TPP. It is further argued that the Applicants’ loss of temporary resident status upon leaving Canada does not impact the interpretation of the TPP, since the policy is silent as to when the Applicants must be in Canada with temporary resident status. In support of this position, the Applicants rely on the IRCC’s “Guide 5553 – Applying for a work permit inside Canada – extend, change conditions, initial and open work permits – online applications”
[Guide 5553], which specifically provides that a work permit applicant may leave Canada while their application is being processed.
[32] I am unpersuaded.
[33] The conditions imposed by the Minister in the TPP are not to be read and interpreted in isolation but rather within the context of, and in a manner that is consistent with the purpose of the Minister’s policy to exempt certain persons from the requirements of the IRPR (Adeyemi v Canada (Citizenship and Immigration), 2022 FC 1267 at para 9).
[34] In the background section of the TPP, the Minister details the significant impact of the February 2023 earthquakes in Türkiye and Syria and describes the TPP as a response intended to facilitate access to work and study permits “for those who may wish to prolong their stay in Canada before returning due to the earthquakes.”
In turn, the eligibility requirements state that the policy is limited to a foreign national who “is a national of Türkiye and Syria in Canada with valid temporary resident status.”
[Emphasis added.]
[35] On a plain reading, the TPP conditions speak to a current presence in Canada – “is … in Canada”
– and a current status in Canada – “with valid temporary resident status.”
These conditions – presence in Canada with valid temporary resident status – must exist before an officer “may grant an exemption from the requirements of the regulations”
pursuant to the TPP.
[36] This plain meaning interpretation of the conditions is also consistent with the circumstances, context and purpose of the TPP. As I have noted above, the background section of the TPP speaks to its objective of facilitating nationals of Türkiye and Syria in prolonging their stay in Canada. As the Respondent points out, one can reasonably conclude that the objective of extending or continuing an applicant’s stay in Canada becomes moot where the individual has departed Canada prior to a decision being rendered.
[37] In addition, the Officers’ interpretation reflects and is consistent with paragraph 183(4)(a) of the IRPR, which states that:
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183
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183
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[…]
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Authorized period ends
(4) The period authorized for a permanent resident’s stay ends on the earliest of
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Période de séjour : fin
(4) La période de séjour autorisée du résident temporaire prend fin au premier en date des événements suivants :
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(a) the day on which the temporary resident leaves Canada without obtaining prior authorization to re-enter Canada.
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a) le résident temporaire quitte le Canada sans avoir obtenu au préalable l’autorisation d’y rentrer;
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[38] The Applicants argue that the guidelines for in Canada work permits do not require applicants to stay in Canada. While this may be so, the Applicants have failed to establish that Guide 5553 is of any application to applicants seeking an exemption under the TPP. The TPP is a distinct policy in which the Minister imposes the specific conditions and requirements outlined within.
[39] Therefore, I cannot conclude that Guideline 5553 is of assistance in interpreting the conditions of the TPP that an applicant must satisfy, or that it undermines the reasonableness of the Officers’ interpretation.
[40] The Officers’ interpretation of the TPP conditions as requiring a physical presence in Canada at the time the decisions on the Applications were rendered was one that was reasonably available.
[41] An individual outside Canada at the time the Officer is able to consider whether to “grant an exemption”
is neither able to satisfy the condition that they be currently present in Canada nor the condition that they have valid temporary resident status.
[42] The conditions of the TPP not being satisfied in combination with the delegated decision maker’s lack of discretion to depart from the conditions imposed by the Minister required that the Officers refuse the applications (Rohani at paras 32-35).
[43] The Officers’ interpretation of the TPP and the resulting refusal decisions are reasonable.
B. No breach of procedural fairness
[44] Relying on Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 at para 26 (SCC) and on Tafreshi v Canada (Citizenship and Immigration), 2022 FC 1089 at para 12, the Applicants submit that the Respondent breached their legitimate expectations by:
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Interpreting the TPP in a manner that required a physical presence in Canada at the time a decision was rendered, contrary to Guide 5553;
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Inconsistently and/or unevenly interpretating the TPP thereby granting the applications of many individual applicants outside Canada; and
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Relying solely on Canada Border Services Agency [CBSA] entry/exit information to identify those Applicants not in Canada, contrary to statements in the Regulatory Impact Analysis Statement for the Exit Information Regulations, SOR/2019-214 to the effect that the information should never be used as the sole basis for regulatory action.
[45] As I have noted above, the Applicants’ reliance on Guide 5553 is of little assistance where the applications in issue have been made pursuant to the TPP. The original confusion highlighted in this case was the result of a response provided by IRCC to an IC, it did not flow from Guide 5553.
[46] I accept that the IRCC response may have created confusion and caused individual applicants to legitimately expect that the TPP did not require their presence in Canada at the time a decision was rendered on their application. However, any unfairness that resulted was addressed by way of the settlement agreement in the proposed class applications, which provided for the reassessment decisions now in issue.
[47] The settlement agreement clearly notified the Applicants that the Respondent viewed physical presence in Canada at the time of determination as a condition of the TPP and established a process that allowed the Applicants to prove their physical presence in Canada prior to any reassessment being undertaken. Each of the Applicants in these matters were aware of the settlement terms and agreed to them.
[48] The de novo reassessment cured any breach of fairness that tainted the original determination of the applications in issue (McBride v Canada (National Defence), 2012 FCA 181 at paras 41-45; Singh v. Canada (Attorney General), 2024 FC 51 at para 44).
[49] The Applicants’ argument that the Respondent’s letters providing an opportunity to prove physical presence in Canada imposed a new condition under the TPP is similarly not persuasive. The requirement for a physical presence in Canada was reasonably determined to be a condition of the TPP. Neither the settlement agreement nor the request letters issued in accordance with that agreement imposed this condition as a new requirement under the TPP.
[50] With respect to the argument that unfairness arises from the uneven or inconsistent interpretation of the TPP, I accept that there is some evidence in the record demonstrating that in certain cases applicants outside of Canada received positive decisions. However, that evidence falls well short of establishing systemic inconsistency that might in turn cause me to conclude the process was unfair based on a breach of an applicants’ legitimate expectations
[51] The Applicants rely on the affidavit evidence of a number of ICs or their employees who report on their experiences in representing TPP applicants within their respective practices. The affiants identify a very limited number of specific cases where they report individual applicants outside Canada receiving positive decisions prior to and following acceptance of the terms of settlement in the proposed class applications. Within the limited number of cases that are identified, the affiants provide little, if any, context to assist in the assessment of whether those decisions reflect a conscious choice by the decision maker to not require an in Canada presence or whether they instead reflect a decision where the Officer was of the view, even if in error, that the in Canada requirements of the TPP were satisfied.
[52] For example, the Further Affidavit of Ayse Kilinc refers to “hav[ing] handled tens of work permit applications under [the TPP].”
The affiant then states that “most […] were granted,”
and that “[o]nly a small number of our applicants received a negative decision under [the TPP] because they were no longer in Canada.”
This affiant does not disclose whether any applicants outside Canada were in fact successful. Nor does the affiant indicate whether any decision granting an application where an applicant was outside Canada indicates the Officer was in fact aware that this was so and rendered a positive decision, nonetheless. Finally, the affiant includes no objective supporting documentation.
[53] Similarly, the Further Affidavit of Burcu Akyol states “[m]any of our clients … [who] travelled outside Canada received a positive decision. Surprisingly, a minority of our clients were denied work permit [
sic] on the grounds that they were no longer in Canada when the decision was delivered.”
Again, this evidence does not establish that the affiant’s clients “who traveled”
outside Canada were in fact absent from the country at the time a positive decision was rendered or that the decision maker had knowledge of an applicant’s absence. In addition, the affiant speaks only in the general terms of “many of our clients”
travelling outside Canada.
[54] The frailties and utility of evidence provided by authorized representatives and based on their practice experience have been identified and commented upon by this Court in other contexts (Savunthararasa v Canada (Citizenship and Immigration), 2014 FC 1074 at para 28). Those frailties, including the absence of substantiating documentary evidence to support the largely anecdotal information presented, are reflected in the Affidavit evidence adduced and relied upon by the Applicants.
[55] Although the evidence suggests a small number of applications under the TPP were granted to applicants outside Canada, the evidence fails to demonstrate those decisions were made knowing the applicant was outside Canada. At best, the evidence demonstrates that certain decision makers may have erred and/or misapprehended the circumstances in rendering positive decisions in favour of applicants outside Canada.
[56] A legitimate expectation must be based on a clear, unambiguous, and unqualified representation to the applicant made by a government official acting within the scope of their authority and consistent with the official’s statutory duty to the effect that a certain process will be followed or that a certain result will be reached (Baker at para 26, Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras 94-95 [Agraira]). However, the doctrine of legitimate expectation cannot give rise to substantive rights (Agraira, at para 97).
[57] Decisions rendered in error, including those based on a misapprehension of the facts falls well short of the threshold of clear, unambiguous, and unqualified conduct that is required to establish a legitimate expectation.
[58] With respect to the Applicants’ assertion that the Respondent relied exclusively or solely on CBSA entry/exit information to identify those Applicants not in Canada, this assertion too is speculative; there is no evidentiary basis to support the assertion in the record. I also note that in each of the Applications before me, the Applicants, pursuant to the settlement agreement reached in the proposed class applications, provided responses to the Respondent where they have independently confirmed they are not physically present in Canada – the decision-makers did not rely exclusively or solely on CBSA entry/exit information in reassessing of the applications.
[59] In summary, any breach of legitimate expectations arising from the IRCC response to the IC request has been remedied in the reassessment process. The Applicants have failed to establish a factual basis upon which to advance the argument of a breach of legitimate expectations arising from either alleged inconsistent decision making or the Respondent having solely relied on entry/exit information to determine whether an Applicant was physically present in Canada.
X. Certified Question
[60] The Applicants have proposed the following question for certification:
“Is it open to the decision-maker to introduce new eligibility requirements for temporary or permanent residence applications through a request letter or procedural fairness letter when the policy itself is silent or unclear on a specific eligibility requirement?
This question should be considered in light of the uneven practice adopted by different decision-makers with regard to a specific eligibility requirement. Considering that under TS2023 most decision-makers do not require applicants to be physically in Canada at the time of decision, was it permissible to the Officer in the present case to impose on the Applicant the physical presence in Canada at the time of decision as an eligibility requirement?”
[61] I have concluded that new eligibility requirements under the TPP were not introduced in the reassessment process. The requirements simply re-stated the conditions contained in and imposed by the TPP.
[62] The question proposed therefore does not raise an issue that is dispositive of the Application, and, on that basis, it will not be certified (Canada (Minister of Citizenship and Immigration) v Zazai, 2004 FCA 89 at para 12).
XI. Conclusion
[63] The Applications are dismissed. No question is certified.
[64] The Applicants have sought costs, but I need not address the issue as the Applicants have not succeeded.
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