Category Archives: Canadian International Students and the Law

This blog shares legal developments affecting Canadian international students

Reflections from the ACCT Conference: Chinese Canadians Need to Organize Around Community Mental Health Resources STAT

Jason Isolini [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)]
This past weekend, I went to Calgary to join over 100 fellow Chinese-Canadians to attend the inaugural “Action! Chinese Canadians Together (ACCT) Leadership Conference.

It was a weekend of deep healing and reflections on identity, progress, and the many barriers that still exist for us as a community. Among the highlights were a youth panel, organized by many of my younger colleagues, to deep dive into the inter-generational challenges that made some of the previous sessions difficult to set through.

Many of the youth (including those well into their 30’s) felt as though their leadership efforts were not yet being recognized and that speakers were speaking down to some of their lived experiences and re-enforcing patriarchal modes of thinking.

Personally, I did observe that older male voices tended to dominate speaker panels and the small group sessions meant for sharing weren’t always accessible to those with quieter voices or more nuanced/conflicting perspectives. The concept of co-existing ‘commonalities’ and ‘differences’ came up several times during the afternoon.

What I also saw  was therapy in session – as tears were shed, especially by many of the younger participants, but in particular when speaking to the challenges of growing up Chinese, growing up mixed race, and the difficulties connecting to both our parents and grandparents generation and mainstream society. Many elders in the room, afterwards, came around to commend the youth and discussed how they too had tears from listening to these perspecties.

I think these type of spaces and conversations are so important, yet more and more mainstream society is asking us to think beyond, colour, race and identity that we don’t lose sight of how crucial these are to our DNA and our understanding of the individual ‘self.’

I would also argue that, to contrary, until we have these conversations with ourselves and between ourselves (and other oppressed communities including the wisdom of Indigenous descendants to this land) we will not be able to simply carry our ‘play the game’ mentality to positions of power and privilege in Canadian society in a manner that does not cause us to re-enforce those oppressive systems on others, and does not tokenize us away from our communities.

The Mental Health Crisis that No One Is Talking About and the Stigmas Within

The most incredible experience I had was in facilitating a session with Olivia Chow on both story-telling and community organizing. I was one of several facilitators and was assigned to a group from Calgary.

I won’t be discussing any names and organizations (as per the community agreement made before starting the panel and in my small group that I enforced).

I will say that during the story-telling session (after I was socratic-method called on stage and bombed a story-telling example), a speaker in my small group opened up to talk about their own challenges with mental health, how they had a personal connection to suicide, and how this issue affect their Chinese-Canadian clients (i.e. the ongoing ‘stigma’). After a group feedback session of coaching, they felt empowered to share this story with the larger group of attendees. It was very powerful and relatable to the individuals there to here them call us to action – and in fact led to a stakeholder in the room connecting with them to offer support.

I can’t remember the exact facts that were shared, but apparently a subset of Asian Canadian (or was it Chinese Canadian youth) are 1.5 times more likely to suffer from mental health related issues. Another stat that came up earlier in the conference was that within a period of I think it was 20-30 years, mental health will become the greatest factor inhibiting our economy. This places our community at the forefront of a risk to our economic and personal well-being.

We had discussed in our small group that we wanted to bring these theme of mental health into the second part of the workshop. The second part of the workshop was discussing the ideas arising from our stories and our own work (largely around Chinatowns) and turning it into some sort of organizing goal.

We came up with an organizing statement, theory of change, ally mapping, and tactic generation process to try and start up a “Chinese-Canadian Mental Health Co-Op” on the premise that these individuals and organizations present wanted to lobby the Alberta Provincial Government for funds prior to their budget this Fall and provide culturally and linguistically-specific funding.

Before even coming up with our organizing statement, a simple intro around the room revealed everyone…. (self-selecting, as they choose to work on this project) had their lives touched by mental health. It ranged from elders who themselves were going through mental health issues from abusive relationships, to mothers unable to work full-time to take care of a child debilitated by mental health, to seniors feeling isolated from community, to youth and international students going through these challenges. As we went around the room, it was clear that for many of us this was the first time we were sharing on this ‘taboo’ and stigmatized topic. The mood was somber yet resolute.

It was clear that there was a lot of work to be done in our short planning session.

First, as Chinese Canadians we realized we needed to organize on this by creating inclusive personal spaces to hold these conversations. We discussed how the encouragement of young adults to pursue careers in social work and counseling would also help deal with the issue of resource shortage. We recognized that most of the available mental health resources online are in the English language, creating a major barrier to those who are unable to find names and that these resource lists are often in big cities and not shared province or Nation-wide. I heard again (as I have heard time and time again from my clients) that school and work counselors and resources are not nearly enough to address these issues.

As we were organizing and planning, it was clear that a plan was do-able but that such a plan appeared to replicate the usual process of (1) lobbying government through petitions; (2) a cultural communications strategy highlighting prominent Chinese-Canadians suffering from mental health issues; (3) surveys and committees struck up to study the issue and highlight the scope of the problem; and (4) events to raise funds and awareness.  To implement these in practice would require a lot of connecting with stakeholders and persons with power, many of whom may not be vocal champions or see the need for resources directed at one particular cultural community.

We ended up setting up our tactics after getting group consensus but not being able to map these out in terms of timelines. We could have used another three hours, which unfortunately weren’t there.

I am sad that the workshop is over but I do hope someone and some ground of people will take the championing of this forward in Calgary and other cities across Canada. Especially given the tragic news of 9-year old Amal (cited by the speaker in their talk as well) I think it is only appropriate that we were beginning the planning process there.

I have tried to, below, summarize some of my thoughts arising from the session:

  • Mainstream mental health organizing efforts, although well-intentioned, are not culturally or linguistically-specific enough to serve the Chinese-Canadian community. Furthermore, there are challenges with inclusivity and especially finding professionals who understand cultural-specific components of these mental health-issue (such as PTSD, migration-created separation anxiety, filial piety, importance of physical home and community, etc.,)
  • When mapping our allies, several allies are neutral (possibly neutral-negative) but both have and do not have power. This lack of understanding of their positions (due to lack of approaching them on this issue) hurts our organizing.
  • Social media can be a powerful way of spreading awareness but also a contributor to mental health issues. This double-edged sword must be kept in mind as we plan;
  • There is a two-step challenge: (1) fighting to get rid of the stigma; (2) finding tailored solutions that do not end up pitting our communities against each other from precious/limited resources. We can’t simply be firefighting the next suicide without addressing other trigger points from a settlement/sociological perspective (such as racism, inclusion, social isolation, etc.)
  • We have a surface level understanding challenges international students are having with anxiety, depression, and other mental health-related issues – and are painfully unaware of the type of challenges our seniors/elders are having with isolation and costs of living. I think this supports the work of organizations such as Yarrow in Vancouver and to facilitate inter-generational conversations that may be therapeutic for both elder and international student youth.

I have been trying to do some work recently and have been open about issues I myself have had (from seasonal depression to life-long anxiety [you wouldn’t have guessed it from my media appearances and work as a litigator]). Speaking about it publicly and openly with others has truly made me realize and appreciate the spectrum we are all on. Similar to the concept we were discussing about shifting allies over by one category rather than expecting a dramatic shift, I think we can also tackle mental health with the same approach of not trying to eliminate these issues entirely but rather facilitate a more supportive environment for those whose lives are negatively affected and/or debilitated by it so they can improve their lives incrementally.

More broadly speaking, as someone who assists many individuals ranging from minor depression and anxiety to severe mental health issues, that our institutions, rules of engagement, and our societal pace can confound problems. I am also very aware that we do not even publicly appreciate a small percentage of the problem that is out there.

I am also very grateful to journalists such as Wanyee Li (The Star) for writing pieces such as this one to bring awareness to the broader community about the efforts taking place in the diaspora to tackle this.

Most journalism these days rarely ever shows  or espouses the dual concepts of ‘vulnerability’ and ‘opportunity’ so to see it from those who write or reflected in the communities they write about is beautiful.

I look forward to seeing how to get involved in this conversation in Vancouver in a culturally and linguistically meaningful way. I do hope that more public resources.For one, I think more “Big Brother/Big Sister” style mentorship programs between old generation and new generation Chinese Canadians, whether it is systematically organized or just done in informal networks.

What are your thoughts? Do you want to share your experiences or discuss? Would you like to collaborate to make this issue a more prominent public health issue and break free from the stigma?

Feel free to email me at willtao06@gmail.com

What Recent IRCC Program Delivery Updates Tell Us About the Direction of International Student Regulations in Canada

Much of Canadian Immigration Law and Regulation around international students in Canada is given life through program delivery instructions that set out the relevant policies. I have explored in recent blogs how posted policies can conflict with the operation of the law under IRPR and IRPA, which often constrain the efficacy of changing law.

I have written blogs about the 7 January 2019 change to assessing the ‘actively-pursuing studies’ requirement and the 14 February 2019 changes to processing instructions for the Post-Graduation Work Permit Program.

Since then there have been several other new program delivery updates that affect international students:

1. Co-op work permit – 7 March 2019 – https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2019-co-op-permit.html 

Co-op work permits previously came with acondition (condition 21) that holders were ‘not authorized to work for any employer other than stated.’

The problem with this previous condition was that it created confusion among employers who did not see their name on the permit and as well created confusion as many co-op programs required multiple employers.

This is a welcome clarification that assists students and their co-op employers alike.

2. Co-op work permit clarification – 1 April 2019 https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2019-co-op-permit.html

In a follow-up clarification, IRCC then posted new instructions on a page titled Work related to a research, educational or training exemption code C31, C32 and C33 (International Mobility Program)

One of the unique elements of this new page is that under a subheading titled Post-secondary co-op – exemption code C32 eligibility, updated instructions are provided to clarify conditions to be entered by the officers in Canada on GCMS when issuing the work permit.

In addition to the requirement of leaving Canada (condition 18), it is interesting that condition 26 – again going to blanket ban on foreign workers engaging in employment in businesses related to the sex trade, such as strip clubs, massage parlours, and escort services” is re-emphasized as a condition. I am working some potential litigation involving individuals who are not employed (i.e. self-employed) in these areas in order to support themselves and their studies financially and would love to speak to anybody subject to enforcement on this basis.

The rest of the focus on these conditions is on designated and non-designated countries (i.e. those countries where you have lived or traveled in the past six-months). The conditions on the work permit will be different depending on both of them, with an additional condition of ‘not authorized to work in agricultural occupations’ (condition 16) added to those individuals from designated countries.

Hidden in a bit in the last point, IRCC also wants to ensure that the duration of the co-op work permit and study permit should be the same. It was in the past not uncommon for students to have a co-op work permit valid for several months after their study permits expired, creating confusion as to whether those permits authorized continuing work in Canada.

3. Post-graduation work permit length for 2 combined programs – 5 April 2019 – https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2019-post-grad-length.html  

While the posted changes affect Quebec vocational programs with a diploma of college studies (DCS) and an attestation of college studies (ACS), it is important to read this particular page carefully as it provides important information about the length of a post-graduate work permit vis-a-vis the program.

There are a few takeaways of note:

[1] The letters written by DLIs become very important especially around the issue of accelerated studies and to clearly lay out that the students completed the program in accelerated. Failure to do so can lead to shorter post-graduate work permits. These issues are resolvable through applications to extend and amend but could create new graduates uncertainties and hardship in the interim.

[2] IRCC has appeared to give a blanket rejection to laddering programs.

Prior to these these clarifications (implemented in February 2019, I believe with the new changes), a common practice was for private colleges who were not PGWP-eligible to partner up with programs that were to sign matriculation agreements. IRCC was previously giving credence to the length of the combined programs these schools. Meaning that a 1-year ineligible program combined with a 1-year eligible program (in which the individual received the equivalent to a 2-year diploma), did in many cases result in a 3-year post-graduate work permit. This door appears to be closed with the clarified instructions.

4. Study permits: Making an Application – 11 April 2019  and 5. Validity periods and acceptance letters for study permit – 16 April 2019 –

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2019-validity-letters-study-permits.html

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2019-study-permit-application.html

There is a lot packed into this update and I think it deserves it own article frankly.

I’ve posted a series of tweets to highlight some points I looked at. I will try and do a deeper analysis later – especially on new interpretation of R. 215 IRPR and studies which opens up a slew of opportunities for applicants in various situations.

I also did a series of tweets previously on this topic, but the validity period information was also amended to clarify that Officers should be entering the study permit expiry date as the date of expiry of the study or the applicant’s passport, whichever occurs first.

Reading this in conjecture with the Study permits: Final decisions page, there seems to be a little confusion as to how to reconcile program completion with validity period.

The appropriate step, from my perspective, is to ensure that the expiry of the study permit should still be 90 days after the end of the program of study. This will ensure that the expiry of that study permit will be consistent with the statutory expiry date under R. 222(1) IRPR. If the study permit is given a shorter expiry date (program of study end date), students will have to file an extension that creates more administrative work for studies they may have already completed. Most students will need to have a valid a study permit to both take advantage of the ability to apply inside Canada (R.215 IRPR) and to work according to R.186(w) IPRR prior to a decision made on their PGWP. The instructions are not currently written in the clearest form for Officers to interpret.

Several institutions, understandably to try and protect their students from running into study permit expiry issues, recommended putting a date that was after the actual completion date in study permit forms – meaning students often received study permits that were 120-180 days after the completion of studies. This should put an end to this practice.

With IRCC now clarifying that study permits expire 90 days after completion of studies but also clarifying that they will need to re-engage in studies within 150 days of completion, we will see an important extension window in those 60 days for students to get back into school if they are not eligible for PGWPs or are refused PGWPs and unable to restore their status. I am clarifying how restorations will work under this new regime and will update that in a future blog!

Takeaways

What you are seeing now is the Government really tinkering with the details (the grey areas) that previously left students and institutions unclear when advising on work and study. In most of these areas, we have seen a shift towards flexibility and giving students and officers more specific instructions, especially on timing.

I do believe that we will continue to see issues with students transitioning between studies and to post-graduate work permits in this interim period – as these timing issues are not always perfect.

I also do predict that there will be a period of time where institutions, and then to their students (through relevant channels such as student presentations, consultants, agents, etc.) will need to disseminate these new rules changes to their students. I would suggest seeking professional help from lawyers and consultants and coming up with a comprehensive strategy for this process.

 

Why the 180-Day Post-Graduate Work Permit Application Period Will Create Problems for IRCC/Applicants

In past pieces I have lauded IRCC’s extension of 180 days for students to apply for post-graduate work permits. From a policy perspective, I believe it gives students more time to find a job and prepare a decent application rather than to have to rush and base such an application off an expiring study permit that may or may not be easy to extend based on an institution.

IRCC’s new rules are that the study permit must have been valid sometime within the past 180 days but do not need to be valid at the time of application. I also wrote about how the lapse of a study permit automatically 90 days after completion of studies may also complicate the policy switch and require some sort of extension regardless.

What I didn’t realize at the time, but only did with some more reading and cross-referencing is that some of the policy likely does not work in theory with respect to the regulatory provisions of the Immigration and Refugee Protection Regulations which hold power of law.

Let’s start with the issue of what a student whose study permit is expiring (either naturally or on the basis of the 90 days) who wants to stay in Canada needs to do and how that affects their post-graduate work permit (“PGWP”) eligibility.

For those who switch to visitors in Canada, that means that their PGWPs should not (technically) be processed inside Canada unless they are accompanying a family member which permits them to make an application after entry under R.199 of IRPR.

Application after entry

 A foreign national may apply for a work permit after entering Canada if they

  • (a) hold a work permit;

  • (b) are working in Canada under the authority of section 186 and are not a business visitor within the meaning of section 187; – They don’t meet this subject to my analysis below on a possible loophole created.

  • (c) hold a study permit; – this is expired

  • (d) hold a temporary resident permit issued under subsection 24(1) of the Act that is valid for at least six months;

  • (e) are a family member of a person described in any of paragraphs (a) to (d); – this depends on family members

  • (f) are in a situation described in section 206 or 207;

  • (g) applied for a work permit before entering Canada and the application was approved in writing but they have not been issued the permit;

  • (h) are applying as a trader or investor, intra-company transferee or professional, as described in Section B, C or D of Annex 1603 of the Agreement, within the meaning of subsection 2(1) of the North American Free Trade Agreement Implementation Act, and their country of citizenship — being a country party to that Agreement — grants to Canadian citizens who submit a similar application within that country treatment equivalent to that accorded by Canada to citizens of that country who submit an application within Canada, including treatment in respect of an authorization for multiple entries based on a single application; or

  • (i) hold a written statement from the Department of Foreign Affairs and International Trade stating that it has no objection to the foreign national working at a foreign mission in Canada.

(emphasis added – comments in underline)

The student whose study permit is expired without a family member to boot has no regulatory authority for their PGWP to be processed in Canada unless they utilize an exemption.

Moving on….

Adding to these challenges is the interplay between R. 186(w) which is the provision that allows a former student to work in Canada while awaiting their post-graduate work permit creates major timing issues.

No permit required

 A foreign national may work in Canada without a work permit

…..

(w) if they are or were the holder of a study permit who has completed their program of study and

  • (i) they met the requirements set out in paragraph (v), and

  • (ii) they applied for a work permit before the expiry of that study permit and a decision has not yet been made in respect of their application; or

(emphasis added in underline and bold)

In short, if I am not mistaken (and correct me if I am wrong) – a student who has let their study permit expire (90 days after completion of studies) and is applying within 180-days after graduation is under IRPR at least, in a situation where they have to make an outside Canada application.

Even more contradictory, they cannot work after they submit their PGWP application because they no longer meet the requirements of 186(w)(ii) as their PGWP application is coming after the expiry of their study permit.

Unless…..

My third point. A loophole emerges where it actually makes logical sense for a student who wants to take advantage of the whole 180-days they have to submit their post-graduate work permit to submit another paper-based application (which may be without merits – such as a Significant Benefits WP or frankly any WP application such as an accompanying spouse of a student) that would then authorize them to work until R. 186(w)(ii) until a decision is  made.

In short, it is my reading that these helpful policy changes (with good intention) will require regulatory amendment (in addition to just policy) and there may be some individuals caught in the middle of this crossfire of law and policy. Hopefully those regulatory amendments will capture that.

I will have to wait for the Gazette for those instructions.

Immigration law is fun isn’t it?

International Students, Criminality, and Immigration Status – a Few Points and Pointers

In the past year, one of the areas in which I have received the most inquiries and run the most consultations involves international students who have found themselves facing either criminal charges or dealing with the consequences arising from immigration investigations following charges/convictions.

By No machine-readable author provided. Klaus with K assumed (based on copyright claims). – No machine-readable source provided. Own work assumed (based on copyright claims)., CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=331725

A Little Background – Crimigration Generally

I would be remiss if I did not point out first that my piece below will cover mainly practice/practical experience and tips that I would take if I were an international student or international adviser giving a talk to students on criminality and it’s possible consequences. I won’t be going into the details of the foundations of immigration consequences of criminality generally as I couldn’t do the topic full justice in one most.

I would strongly recommend reading this paper from my mentor Peter Edelmann, which subject to a few developments in the law around conditional sentence orders being held by the SCC not to be terms of imprisonment in the criminal admissibility context is still very valid today (http://pblsask.ca/imm_consequences_at_sentencing.doc).

Peter’s brilliant memos on criminality have helped a good number of criminal lawyers in their negotiations with Crown and their Court matters. I strongly encourage you reach out to him (peter@edelmann.ca) if you would like more advice on this.

I would also recommend reading the case he argued in front of the Supreme Court of Canada – R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696 – with respect to sentence appeals and informed consent of immigration consequences.

The SCC held that  the accused must be aware of the nature of the allegations made against them, the effect of their plea and the consequences of their plea which include immigration consequences.

International Students – Things to Be Aware Of

Unlike other permanent residents and even temporary residents, there are several factors that make international students unique in the context of criminality and have direct impacts on their larger immigration status issues.

The Role of Studies Before, During, and After the Criminal Process

First, their studies heavily factor in. International students are required to actively-pursue studies and remain enrolled during the duration of their time on a study permit in Canada (R. 220.1 IRPR). The considerations for this are highly subjective, yet gratefully have been clarified recently by IRCC – see my past post on this issue.

From my experiences, individuals who come to the attention of IRCC through criminal charges are highly scrutinized for their past educational efforts (or lack thereof). Indeed, I have come across several Officer’s section 44 reports that flag this for review, even where charges were eventually resolved by way of discharge or a peace bond (i.e. where criminal admissibility cannot be made out).

Students who are having issues with the law should do what they can to stay in school. The criminal proceedings will inevitably have an affect on their ability to attend classes, but communication needs to be established with professors, instructors, and international student advisers to try and accommodate.

Even the conversion to part-time classes for one semester that is not a final semester or a failed class can be enough to trigger attention. These would seem to be very natural consequences of the stress of facing charges in Canada, particularly for many students who have never been in trouble with the law before.

At worst, an exclusion order can be issued for not actively-pursuing studies. At best, an international student’s eligibility for a post-graduate work permit which require full-time study throughout (other than last semester) gets thrown into the deep water.  Also, for international students not engaged as a full-time students when facing charges, it is not advisable to work as doing so may be in violation of your study permit conditions, another violation that could lead to an individual’s exclusion from Canada.

I find many international students are also not aware of some of the possible outs. Exceptions to actively-pursuing studies for family members (common-law partners/spouses) of study permit and work permit holders is not adequately canvassed. In fact, the practice of updating IRCC on changes in family make up during the time after a study permit is approved is not posted anywhere on the IRCC website nor done in practice by anyone, but a select few.

Similarly, applying for a visitor record while holding a study permit can be done in cases of leave yet I would argue that IRCC has not yet made clear how the simultaneous holding of both these permits affects the active-pursuing studies requirement.

Second, applications/efforts to seek re-entry or extend stays in Canada will come under increased scrutiny. I generally recommend individuals who are facing charges in Canada and/or are in the process of fighting those charges to stay in Canada and stay enrolled. Once a flag is placed on a file, the individual can be subject to deeper looks into their immigration histories when seeking re-entry, for example on a day trip to Seattle or a Spring Break trip back home.

What were accepted as mistakes and/or missed by visa offices on past applications can now become open ground for misrepresentation investigations. The breadth in which s.40 of IRPA is applied makes a mistaken question about whether you have been previously arrested or charged, refused an application, or even the organizations you were involved with in the past  is now an open season search effort. In my ideal world, every student who is currently charged with an offense and/or was recently acquitted would seek legal advice and review before filing their subsequent applications, especially if the proximity of time between the two is very short.

Another issue to flag is that communication and contact with IRCC/CBSA becomes even more important post-criminal charges laid. It is not uncommon for CBSA officers to want to interview you in advance of a decision on your criminal matter, as a bit of a check-in and file review. Warrants for arrest, leading to detention have been issued on the basis on failures to update home address properly with relevant authorities.

I am really opposed to the detention of international students for immigration violations, but unfortunately a lot of it spurs from communication issues that are entirely avoidable. It is much more advisable for both Client and the CBSA to have an interview and go through the admissibility process when the Client is not detained.

Putting international students who have never been arrested in their life, into cuffs and with general population can have scarring and traumatic effects. I have had to make more than a few referrals to psychologists on this basis. I think there is much more that can be done to create better and more accessible portals for home address changes, especially when students do not have access to their own MyCIC application accounts (an issue I have addressed many-a-times on this blog).

Pressure to Leave Canada On Own Accord – Either/Or Conundrum

In the inside Canada context, charges are not convictions. Only convictions render an applicant in admissible. Often times I find clients that contact me have not been advised enough of the immigration consequences by their criminal counsel. This is certainly area for continued collaboration between the two legal practices, especially where students and cognitive/mental health vulnerabilities are heightened and the uncertainty can have worse psychological effects. Family overseas often times are entirely kept in the dark, many time purposefully, by international students. Students often borrow money to try and pay for legal fees further creating a whole for themselves.

The other issue I have see is pressure from CBSA who in many cases will try to encourage individuals facing criminal charges to accept a lesser exclusion order and leave Canada. Many times the grounds for this are nefarious, at best, yet remain largely unchallenged administratively.

I personally would love CBSA to take a little more of a hands-off approach and let the Canadian Criminal Justice system play its course before intercepting. However, I can see why it is sometimes deemed beneficial to get a rid of a perceived problem and cost on the system from their perspective. International students are a dime a dozen from the system’s perspective – bad press, media, and lengthy trials – certainly aren’t.

The Value of a Letter to the Court/Crown from Immigration Counsel

One of the lesser known benefits immigration lawyers can provide to criminal counsel is, as discussed earlier, a legal opinion. I mentioned Peter’s opinions are in my biased opinion – the best in the business.

These opinions can set out the immigration consequences of finding an individual guilty. They can be especially crucial for international students where you can tie in the consequences on their inability to study if found inadmissible and their removal order enforceable (R.222(1)(b) IRPR).  In my own practice, I have been able to provide memos that once disclosed by Defense counsel to Crown started the resolution process early. Crown, especially for first time offenders on more minor charges, have been amenable to considering an absolute or conditional discharge, a peace bond, or even a stay – taking into consequences the vulnerability of their student status in Canada.

I am not a criminal lawyer myself and can only provide my ‘afar perspective.’ I tend to find the process more Crown-facing than immigration’s client-facing preparations (maybe if part of it is because we don’t usually have a physical face in immigration to talk to). I would provide some constructive feedback that my crimigration clients, especially those with language barriers, often find themselves a bit in the dark during the initial stages prior to trial. Here a collaborative approach may work and also where the use of interpreters at an additional cost becomes entirely worth the transparency of communication.

A Note on Sexwork

With the cost of tuition for international students rising astronomically and as well with a strong movement of women who are breaking the stigma and taboo of sex work as an illegitimate form of labour, it is not uncommon for international students to engage in this area. I won’t weight into the larger and very Vancouver debate over whether eliminating prostitution, regulating, or deregulating prostitution, is the best path forward but do note that it is very much in the post-Bedford atmosphere here.

Unfortunately, temporary status poses problems in this regard. Section 196.1 places a blanket restriction on foreign national entering into employment agreements with employers who offer sexual services:

Restrictions

 A foreign national must not enter into an employment agreement, or extend the term of an employment agreement, with an employer

  • (a) who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages; 

There is a current silence around self-employment (especially escort work) and occasional sex work and these are the gray areas in which this arguably cruel and unusual law operates. Furthermore, no direct link is made in section to work without a permit while a student which falls under R.186(v) which has no similar sex-work limiting provisions.

For international students, I have seen the actively pursuing studies provision as well as extension refusals targeted at those who engage in this work. The ‘bawdy houses’ are still very much being treated by enforcement officials in the immigration context as human trafficking hubs, somewhat contrary and different

This is an area I am increasingly interested in. Should you have or know of other international students who are struggling with the ways the laws are written and enforced around the ability to perform sex work while on a study permit or even as an international graduate please email me at will@edelmann.ca. I am currently awaiting a few stakeholder directions on where to direct further research in this area.

After Removal…. Coming Back to Canada

Depending on the outcome of the criminal trial, whether one is ultimately found criminally inadmissible and removed, the ability to return to Canada may vary. Rehabilitation may be available, as may deemed rehabilitation after a certain prescribed period has passed.

However, for those students removed on a finding of ‘not actively pursuing studies’ or ‘work without authorization’, the one year mark when the inadmissibility expires is not an automatic green light to return. Previous admissibility findings often lead to increased scrutiny on future temporary.

I would also familiarize myself with the Authorization to Return to Canada (“ARC”) provisions especially for those who are removed on a deportation order for serious criminality or on a five-year exclusion order for misrepresentation. I’ve done a deep dive post here.

Conclusion

In short, it is tough for an international student facing criminal charges. There’s a lot of uncertainty  and a lot of communication issues inherent in the process. Conversations between yourself and your criminal counsel, criminal counsel and immigration counsel, Crown and your criminal counsel, Crown and CBSA, and CBSA and yourself all may occur in this whirlwind of personal uncertainty.

You need good and effective counsel – and thankfully Vancouver has some of the best criminal lawyers in the country. Definitely get on top of things and organize for this process – put your relevant people in touch with each other. Failure to recognize your rights, reliefs, and the interplay of CBSA with the arresting authorities can lead to confusion, and possibly huge immigration consequences for international students.

Feel free to provide to email me if you have any questions arising from this post: will@edelmann.ca

IRCC Makes Positive Changes to the Post-Graduate Work Permit Program – February 2019, But First A Little Personal History About Pushing Change

Part 1: First – A Little Personal History about Pushing Change

In advance, I want to make clear that I am not writing this first section to make it appear as if I had anything to do with the changes announced today. This was done by concerned students, stakeholders, schools, other lawyers, and great IRCC policy people engaged in this issue. I am writing this because I’ve been asked by a number of young mentee law students/pre-law students recently (and other fellow junior lawyers) how I got so engaged with international student issues. Rather than just simply copy and paste the website changes, I thought the process of my interest, advocacy, and how it all plays in – may be of interest to some readers.

Since IRCC implemented their clarified directive Study Permits: Assessing study permit conditions I had a feeling that new instructions on the PGWP would be coming. A month ago, Immigration Representatives confirmed to me by email that this was the case:

Actively pursuing studies

A month later, on Valentine’s Day no less, IRCC placed some little cards into the brown paper bags tied into the back of plastic chairs of international students (sorry – as you can tell I’m getting off topic and nostalgic, as I write) .

As frequent readers of this blog will know, I have been advocating for PGWP changes for several years now, having assisted many clients in various stages of challenges with this program – ranging from eligibility concerns, to initial applications at Inland Offices, VOs, and POEs, to the Federal Court, and reconsideration requests. I gave talks, wrote a lot of articles, had student clients who speoke to media, and advised schools – all because of the uncertainty. At one of my talks I think I described being an international student in Canada as being caught in a rough ocean with a life jacket on and a PR island that often appears too far to swim to.

The past few years began to see a lot of challenges in the area. Refusal rates began to climb and international students, especially from those with non-traditional study programs or for reasons outside of their control had to take leaves in order to complete their studies. While I was successful in restoring several international students who had been refused, either for having their study permits lapse or having paid less than the required fees, the case law during the time (notable FC cases from Raj Sharma and later Ravi Jain), started to close the door on that process.

There was also a huge health toll, one that was lost in the rhetoric of blame placed on international students in mainstream media. I talked a bit about it with journalist, Melanie Green here.

International students, many already dealing with separation anxiety, isolationism, and culture shock, not only pay often times 3 to 4 times the tuition than domestic students, but also face other barriers limiting their ability to work and seek access to crucial settlement services.

From a personal perspective, my own spouse was at the time going through the international student experience as were her colleagues (and I was footing the bill of course!) I saw these issues affect a lot of her friends, especially the financial challenges. Personal experience goes a long way into building a passion for practice.

Looking back, given  I was having a conversation about this with IRCC program managers such under three years ago about the need for change – it has indeed been a long time coming.  It has been incremental – but now there is a clear list of DLIs on the website, as discussed earlier, the aforementioned actively pursuing studies requirement was clarified, and now this.

I am very proud of IRCC for stepping up for international students. Without further ado, here are the changes.

Part 2: The Changes

IRCC’s changes can be found here and are titled “Program delivery update: Processing Instructions for the Post-Graduation Work Permit Program.”

There are two major changes from IRCC and one change that I would also add to the list, around the leave provision.

Change 1: Deadline to Apply Extended from 90 Days to Six Months

There is now a six month period, instead of a 90 day period in which to apply for a Post-Graduate Work Permit. This gives a lot of flexibility for students to further explore after graduation whether they want to continue studying or apply for a post-graduate work permit. It also removes a lot of the uncertainty which arose when a student was told they had completed their studies but did not formally graduate until several months later, creating confusion on the 90 day period starting point. Six months will make that much better.

One of the things I do see arising out of this is change is a lot of schools that were previously thwarted (or had negative fallout) from four-month add on programs now integrating it into their programs. The raison-d’etre is that these programs could assist into entry-to practice and help students secure employment without killing valuable time off their PGWPs. It may also encourage some students to continue studies rather than graduate and apply for PGWPs.

This could create problems though if a student applies at month 4 of 6, makes a mistakes, and becomes ineligible for restoration. Furthermore, I think IRCC and related stakeholders do have a role to play with respect to sussing out that interplay between R.222(1) (a) IRPR which could invalidate the student status of individuals who intend to apply for a PGWP at month 4 or 5 but not continue their studies. These students could lose status unknowingly.

The possible solution? Visitor Record Extensions may need to be employed to bridge between end of student status and prior to a PGWP application.

Change 2: No need to hold a valid study permit while applying for a PGWP

This is a big one – which unfortunately came off the backs of several deserving applicants who were refused. Previously, students whose study permits were going to expire before they were able to apply for PGWP had to extend their status, creating a weird scenario where they had graduated but still had to apply to maintain student status at the institution. This also affected a lot of students who decided to leave Canada right after they graduated and apply abroad, forgetting to extend their study permits.

This was also the main issue in my colleague Ravi Jain’s case of Nookala v. Canada (Citizenship and Immigration), 2016 FC 1019 which unfortunately for awhile closed the door.

Now the language is hold or held a study permit.

This also opens the door for restoration at least within the six month period. This goes again to the importance of applying earlier (rather than later) for a PGWP in most circumstances.

I would like a little more clarity around Restoration and think it should be a separate section on the program guidelines.

Change 3: Leave Exception – Discretion to Issue PGWP Where Not Continuous Full-Time Studies

IRCC has added to their instructions information about leave which specifically carve out an exception for those students who took a leave.

The Instruction state:

Leave from studies

If the applicant remained in Canada while a student and took leave from their studies during their program, the officer must determine if the applicant was compliant with the conditions of their study permit, as outlined in Assessing study permit conditions. Officers may request additional documents to complete their assessment. Per paragraph R220.1(1)(b), students must

  • be enrolled at a DLI
  • remain enrolled
  • be actively pursuing their course or program of study

If the officer determines that the student actively pursued studies during their leave, the student may still be eligible for the Post-Graduation Work Permit Program (PGWPP).

If it is determined that the student has not met the conditions of their study permit, they may be banned from applying for a post-graduation work permit for 6 months from the date they stopped their unauthorized study or work, per subparagraph R200(3)(e)(i).

This suggests that in addition to leeway – there could also be individuals banned from applying, depending on the time elapsed before graduation. However, as we know there is also a final semester rule that does provide some comfort to international students who are part-time in their final semester.

IRCC’s Guidelines on Leave provide more insight on how this may apply in practice:

D. Leave from studies

Students may be required or may wish to take leave from their studies while in Canada. For the purpose of assessing if a student is actively pursuing their studies, any leave taken from a program of studies in Canada should not exceed 150 days from the date the leave commenced and must be authorized by their DLI.

A student on leave who begins or resumes their studies within 150 days from the date the leave commenced (that is, the date the leave was granted by the institution) is considered to be actively pursuing studies during their leave. If a student does not resume their studies within 150 days, they should do either of the following:

If they do not change their status or leave Canada, they are considered non-compliant with their study permit conditions.

In cases where a student has taken multiple periods of leave in Canada during their program of study, the officer should consider the student’s reasons for the various periods of leave. If the multiple periods of leave do not appear to support the expectation that the student is making reasonable progress toward the completion of their course or program of study in the time allotted by the course or program of study, the officer may determine that the study permit holder has not fulfilled the condition to actively pursue their course or program of study.

Examples of reasons for leave include but are not limited to the following:

  • medical illness or injury
  • pregnancy
  • family emergency
  • death or serious illness of a family member
  • change in program of study within the same institution, outside a regularly scheduled break
  • dismissals or suspensions (dependent on degree of severity)
  • postponed program start date (see Deferred enrollment for more information)

E. Deferred enrollment

In exceptional circumstances, a student may be required to defer their program’s start date to the next semester. If the student defers their program start date, it should be formally approved by the DLI. In some cases, the deferral is imposed by the DLI.

If the study permit holder is in Canada at the time of deferral, and they wish to remain in Canada, they must begin their studies the following semester or within 150 days from the date the deferred enrollment is confirmed, whichever comes first. Otherwise, they should do either of the following:

Note: In all deferral cases, students should obtain an updated letter of acceptance from the DLI.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/assessing-conditions.html#leave

I still think there are some gaps such as deferred registration (see below) but ultimately it does give Officer’s a level of discretion. My hope is they will continue to rely on the support/guidance of DLIs when making their decisions on whether to grant an exception and issue the PGWP to students who rely on this exception.

Ongoing Challenge – Full-Time Studies Definition

There are a few issues that still remain that I think can be better addressed in new program delivery instructions.

IRCC has now clarified that full-time student status is now for ‘each academic session of the program or programs’ – replacing full-time for the program.

Full-time studies 

  • They have maintained full-time student status in Canada during each academic session of the program or programs of study they have completed and submitted as part of their post-graduation work permit application

I still find this definition problematic – for one because many schools operate on non-traditional calendars and in many cases there is both financial and career incentive to study part-time in the summer rather than full-time during the semester. I think it is not equal practice to have different sets of rules apply to international students and domestic students.

These rules may further tighten that definition. I think it is an area where more advocacy and putting the ball back into the Court of institutions (but holding institutions to higher standards) may be the best solution.

I’m seeing one of the fall outs of these instructions putting more discretion in the hands of Officers as opposed to institutions. This is one point to monitor as we move forward.

Guideline Applicability Start Date – Remedy for Recent PGWP Refusals 

The rules kick in for applications starting today, with applications received before today considered under the old rules.

Eligiblity of Rules

Client who were refused PGWPs and are still within the initial six month period of being eligible to apply under the new guidelines may want to try and submit, if they meet the other requirements.

What Should Schools and DLI’s Do

I have three initial steps for DLIs and institutions to consider how to take into account these new changes.

  1. Do an Audit of Existing Materials – Website, Print, Agents, Advertising

These changes will undoubtedly require a massive overhaul of materials. It is important, as we have seen from litigation in Nova Scotia, Ontario, and Alberta recently for schools to either take best efforts in disseminating correct information or not disseminating any at all. A half-hearted approach is probably the most harmful.

2. Consider Program Changes

Again, with the new 6 month period to apply for PGWPs schools can start getting quite creative and benefit their students with tack-on programs that could help students secure jobs shortly after obtaining PGWPs in a way they couldn’t before. I can see adding on business and experience-based learning type programs to the end of completed programs. Schools may want to look into these

3. Consider Prospective Policy Changes and Advocacy

Change usually begats change. I have heard that some schools were presumptive in trying to tell agents that they were close to getting PGWPs. That hasn’t occurred with these instructions. Yet, there may be a lot of room for schools to advocate both to the Federal and Provincial Governments for programs whose graduates are bringing major benefit to the Canadian economy and social fabric. More programs to facilitate these individuals, in areas such as theological studies, film and television, and the arts should be pursued – ideally through PNP pathways.

I also see a change not too far in the horizon regarding schools (perhaps first secondary and elementary) being limited by a quota system in the number of Letters of Acceptance they are able to submit.  This is apparently the Australian model, something worth studying as the numbers for study permits increase and refusal decisions no longer are able to withstand judicial scrutiny.

Finally, what to do about international student fraud and the lack of any regulation of education consulting. The capital outflows occurring as a result of the current fee-for-seat system and the presence of global recruiters/agents is not tenable. The system will change as soon as the political will, which in B.C. is clearly there, goes along side.

Interesting times for our international student regime!

 

IRCC Clarifies Actively-Pursuing Studies Requirement – January 2019 Update

On 7 January 2019, IRCC updated their study permit program instructions to include  more clarity on the actively pursuing studies requirement. See link here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/assessing-conditions.html#completion-courses

There’s a lot to unpack but here’s a few points worth noting:

Discretion to IRCC – re: Institutional Changes

It is not uncommon for international students to change institutions a number of times during their studies. These instructions clarify that this can be examined by an Officer when determining compliance. The instructions write:

However, to assess if a student who has changed institutions or programs of study a number of times should be considered to be actively pursuing their studies, the officer should consider the student’s reasons for the changes. In cases where multiple program or institutional changes do not appear to support the expectation that the student is making reasonable progress toward the completion of a Canadian credential, the officer may determine that the study permit holder has not fulfilled their study permit condition to actively pursue their course or program of study.

150-Day Deadline for Program Changes, Leave, Deferral, and School Closures

A 150-day deadline has been set in these instructions for individuals seeking to resume studies after previous studies completed, leave, deferral of studies, and school closures.

The instruction in those cases is to change to visitor status/worker status or else leave Canada.

One thing missing in all of this is a formal way to invalidate study permits. Per R.222, the application for a visitor record does not do this (as much is also repeated in section G. Change of Status in the instructions.

Invalidity

  •  (1) A study permit becomes invalid upon the first to occur of the following days:

    • (a) the day that is 90 days after the day on which the permit holder completes their studies,

    • (b) the day on which a removal order made against the permit holder becomes enforceable, or

    • (c) the day on which the permit expires.

  • Marginal note:Exception

    (2) Paragraph (1)(a) does not apply to

    • (a) a person described in any of paragraphs 300(2)(a) to (i); or

    • (b) a family member of a foreign national who resides in Canada and is described in any of paragraphs 215(2)(a) to (i).

  • SOR/2014-14, s. 16.

Evidence of Compliance 

One of my previous concerns with the actively-pursuing studies requirement and the new email

Examples of evidence that officers may request include but are not limited to the following:

  • official document from the institution confirming enrolment status
  • official document from the institution confirming the reason for leave and the date of approval
  • official document from the institution confirming the date the student formally withdrew from an institution or program of study
  • official document from the institution confirming the date the student was suspended or dismissed
  • official document from the institution confirming the date the student ceased studying
  • current and previous transcripts
  • character references (such as a note from a professor)
  • note from a medical practitioner certifying the medical need and length of leave required
  • documentation or letter attesting that the school has ceased operations and is no longer offering courses or programs of study
  • any additional and relevant documents, at the discretion of the officer

Clarifying the Consequences of Non-Compliance

I am glad IRCC has clarified the consequences of non-compliance. The instructions state

Non-compliance with study permit conditions may result in enforcement action; that is, an exclusion order can be issued for non-compliance, per subparagraph R228(1)(c)(v).

Non-compliance with study permit conditions or engaging in unauthorized work or study may also negatively affect future applications that are made under the IRPA and IRPR. For example, a subsequent study permit or work permit may not be issued until a period of 6 months has passed, since the cessation of the unauthorized work or study or failure to comply with a condition, per section R221 and subsection R200(3).

The first step to curbing non-compliance is providing clear knowledge of the consequences of violations.

Clarifying Exemptions

Given the lay challenges of tracing the legislation, it is useful that IRCC has now clearly laid out the exemptions.

In accordance with subsection R220.1(3), the following people are exempt from the study permit conditions under subsection R220.1(1):

  • a person in Canada who has made a refugee claim that has not yet been determined by the Refugee Protection Division as well as that person’s family members
  • a person in Canada on whom refugee protection has been conferred and their family members
  • a person who is a member of the Convention refugees abroad class or a humanitarian protected persons abroad class and their family members
  • a properly accredited diplomat; consular officer; representative or official of a country other than Canada, of the United Nations or any of its agencies or of any intergovernmental organization of which Canada is a member; the members of the suite of such a person; and the family members of such a person
  • a member of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act, including a person who has been designated as a civilian component of that visiting force under paragraph 4(c) of that Act, and their family members
  • a person who holds a study permit and has become temporarily destitute through circumstances beyond their control and beyond the control of any person on whom that person is dependent for the financial support to complete their term of study
  • a person whose study in Canada is under an agreement or arrangement between Canada and another country that provides for reciprocity of student exchange programs
  • a person who works in Canada as an officer of the United States Immigration and Naturalization Service or of United States Customs carrying out pre-inspection duties, as an American member of the International Joint Commission or as a United States grain inspector, and their family members
  • a United States Government official in possession of an official United States passport who is assigned to a temporary posting in Canada and their family members
  • a family member of a foreign national who resides in Canada and is described as any of the following
    • a person who holds a study permit
    • a person who holds a work permit
    • a person who holds a temporary resident permit issued under subsection A24(1) that is valid for at least 6 months
    • a person who is subject to an unenforceable removal order
    • a person who is a member of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act, including a person who has been designated as a civilian component of those armed forces
    • a person who is an officer of a foreign government sent, under an exchange agreement between Canada and one or more countries, to take up duties with a federal or provincial agency
    • a participant in sports activities or events in Canada either as an individual participant or as a member of a foreign-based team or Canadian amateur team
    • an employee of a foreign news company for the purpose of reporting on events in Canada
    • a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group, or provide spiritual counselling

It will be important for IRCC to standardize in their processes a request for a family information form. One common scenario especially in this context is the spouse of a skilled worker (PGWP) or perhaps another student (SP holder) who is unaware of the nature of their relationship (e.g., common-law partnership).

Conclusion

Overall, this is much needed clarity and change I’ve been pushing for. The 150-days seems fair and offers a guidepost for both student and school. I also liked that IRCC put in blue, the importance of updating contact information and creating a MyCIC account to ensure updates are received.

We will see how it all works out in practice and it is my hope that IRCC does not exercise discretion to remove students heavy handedly.

Applying for Study Permit – Does I Matter if I Apply in Canada? – FC Weighs In

One of the questions I’ve always struggled with (and tended to advise much more conservatively on) is the question of whether an individual should apply for a study permit while they are residing in their country of habitual residence/citizenship or whether they should apply for one while they are in Canada as visitors (processed in LA).

The general incentive overseas is made clear by a series of sub-categories such as Study Direct Stream and Post-Secondary with GIC, that have been created to try and encourage applicants to apply to local offices with local standards. Furthermore, the main temporary resident assessment is whether one will leave Canada at the end of their authorized stay – something made more difficult by someone who may have visited and decided they would like to stay for long (remember, there’s no implied status provided by a study permit application assessed in Los Angeles – as it is still considered an initial study permit application, NOT an extension).

I’ve always avoided Los Angeles where possible – the Visa Office there is quite tough on temporary resident applicants especially on the factor of whether they would leave Canada at their end of their authorized stay.

Justice Norris, who has established himself as a progressive voice on the Federal Court bench, has challenged the logic that negative inferences or speculations flowing can be drawn from the fact an Application was made in Canada rather than from abroad.

In Cervjakova v. Canada (Citizenship and Immigration), 2018 FC 1052 (CanLII),  he writes in paragraphs 11 – 16 (emphasis added)

[11]  The GCMS notes record the reasons for the decision as follows:

After considering all information available including principal applicant’s personal circumstances, employment/financial/family situation, significant cost of proposed study, accessibility of similar programs in home country, I am not satisfied principal applicant’s motivation for pursuing studies in Canada is reasonable, primary purpose is to study, and will leave by the end of an authorized stay period.

(In the interests of readability, I have taken the liberty of replacing the abbreviations the officer used in the notes.)

[12]  Having regard to all the circumstances of this case, in my view the officer’s conclusions fail the tests of transparency, intelligibility and justification.  The conclusion that the applicant would not leave Canada at the end of her authorized stay is especially troubling.  A finding that the applicant could not be trusted to comply with Canadian law is a serious matter.  The applicant had done everything she was supposed to.  She obtained a visitor’s visa when she first came to Canada.  She applied for a study permit when she decided to undertake further studies in her field (she had worked in accounting for several years in Latvia).  The only suggestion that she had not complied with Canadian immigration law is found in the officer’s observation that the applicant had listed the occupation of her two children as “students” but there was no record of them having been issued study permits.  The children were ages 4 and 11.  While one might expect them to be in school, there was no evidence that they were when the application was submitted.

[13]  Similarly, the officer notes that it is “unclear” why the applicant did not apply for a study permit before she left Latvia for Canada.  The applicant was not required to do so.  The only requirement was that the application be processed by a visa office outside of Canada.  While the applicant was in Canada when she sent off her application, she was here lawfully.  She was entitled to submit her application when and how she did.  Simply being unclear about why this happened does not reasonably support a finding that the applicant had not conducted herself with bona fides.

[14]  The officer was also not satisfied that the applicant had the financial means to afford the programme and to support herself and her family during an extended stay in Canada.  This conclusion is not reasonably supported by the record, either.  The applicant presented evidence that she had adequate funds to support herself and her family, especially considering that a policy manual states that the applicant’s ability to fund the first year of the proposed course of studies is the primary consideration.  (After that, an applicant need only demonstrate a probability of future sources of funding.)

[15]  The applicant applied for an open work permit for her husband under section 199(e) of the Immigration and Refugee Protection Regulations, SOR/2002-227.  While it was not obvious that her husband would be able to find work in Canada, the evidence of the applicant’s financial circumstances suggested that the viability of her plans did not depend on this happening.  It is true that the applicant’s husband had left a job behind in Latvia.  The applicant’s decision to study in Canada could well entail financial sacrifices for herself and her family but the evidence suggested they could afford to make them.  This is often what is required to improve one’s circumstances in life.  There was no basis to conclude that this was an unreasonable decision on the applicant’s part that raised doubts about her true motivation.

[16]  It may strike one as odd that the applicant and her family would suddenly decide to extend a summer vacation in Canada into a five-year commitment.  But life often takes unexpected turns.  Nothing in the circumstances of this case reasonably supported the conclusion that the applicant had failed to establish that she wanted to stay in Canada to study in her field, that she could afford to do so, and that she would leave when she was supposed to.

Alone the lines of several other recent successful study permit JRs we’ve seen, this decision reaffirms that speculative reasoning should not be employed in refusing applicants. I return to a premise I’ve held for awhile – if we continue to hold the number of study permits in Canada at a level where supply exceeds demand, and where targets are reached earlier, how do we avoid this? The very assessment of a study permit is by nature speculative. Indeed, I’ve yet to meet very many internal students who do not meet the study permit requirements, but for that discretionary – will they return to Canada at the end of their stay. How are we going to balance all this out without a quota system?

Food for thought. For now, applying through LA (though still not my first choice in most cases) can’t in itself be a deal-breaker.

What IRCC email “actively pursuing studies” compliance checks look like

Email Compliance Checks

As you may have seen from IRCC’s revamped study permit instructions website, the process of verifying whether a student is “actively pursuing studies” is finally being taken up by the Department. While some may find concern in this (given the broad nature of R. 220.1 IRPR), if it leads to less Port of Entry decisions and more assessment by those who understand the challenges of international students and can grant some of discretion, this can be a positive thing.

I have shared an earlier post – what the letter looks like but I want to provide some more details about what we know and what we don’t know. Hopefully, IRCC will also put up some sort of an information page that sets out the guidelines/thresholds to be met and what (if any) steps a student can take to explain peculiarities or normalize their study status when facing such a request. For one, it is not clear how a student is to address medical breaks, time outside Canada (when they are not subject to the requirement to actively pursue studies), or any other explanation in a manner that can lead to the exercising of positive discretion.

Step 1: Receive Email from IRCC

IRCC.DNISPCompliance-ConformitePEERN.IRCC@cic.gc.ca

  • On this a side note and tip- many international students utilize the email of educational agents, family members, etc. to apply for study permits. For many of them, once you are comfortably in Canada and in school their obligation ceases to exist, but yours still do. I would suggest creating a MyCIC and linking your application to your new MyCIC to ensure that you get communication. Alternatively, you may choose to contact IRCC by IRCC webform to change your contact information. Still, IRCC has been known to send emails to wrong/old addresses. Being proactive will do you well here.

Step 2: Read the Email from IRCC carefully, noting deadlines, format and documents required

Copy of a compliance check

In this sample request, there are two things requested – one proving current enrollment status and a second requesting transcripts from past dates. There is also under the “Please note” section the ability to provide additional explanations.

With a deadline, you want to make sure that if (for whatever reason) documents may not be obtained within the deadline [let’s assume your consultant sent you this email three weeks late and a transcript takes one week to obtain from your former institution], make sure to  email and ask for a reasonable extension of time. 

Step 3: Review the Letter/Transcripts You Get Carefully

Not all letters and transcripts are self-evident when under review. It is possible the educational institution themselves may not have undergone an immigration audit of their letters, attendance records may be inaccurate/missing, or the transcript may have some issue that you were previously not a party to. Schools also may have very unique semester systems that are not captured in their enrollment letters or transcripts. It is important before you pass it on directly to IRCC that you review it for possible flags that may need explaining.

That being said, IRCC’s technology to catch fraud is increasing, comes with high consequences (a possible 5-year bar from Canada for misrepresentation and/or regulatory offense/charges). I would highly advise against any one seeking to alter anything for the purposes of trying to cover up a record of underwhelming studies. There is sufficient enough grey in the legislation that you may be better off providing an explanation of your ongoing intent and explaining short periods of non-compliance than to cover up or hide it.

Step 4: Provide a Response or Determine if You Need Legal Assistance Providing Said Response

Next comes responding. If there are straight forward documentation which clearly establishes your attendance with no issue, you may be okay sending in just the transcripts. However, in many cases a cover letter or timeline may be beneficial to provide. Your job is to make the Officer’s job easier and as well advocate for your own past studies and ongoing-pursuit of studies. Again, at this stage, there are no clear cut rules as to the standard of proof. It is unclear whether students on academic probation, students who failed, and students who were wait listed or prevented from studies due to registration/health issues will be able to get a hall pass. Hopefully, in time these issues clarify themselves and as well IRCC also clarifies their communication with CBSA on students seeking entry who may have violated the actively pursuing studies requirement. In an ideal world, I would like to see CBSA cease issuing removal orders at the Port of Entry and referring cases to IRCC to pursue, giving students fair and reasonable opportunities to respond to concerns and/or make necessary efforts to change their status, if required and available.

Summer ’18 – Study Permit and International Student Law Federal Court Case Law Summary

Global_Education

By Desmond1234 – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=46866616

As Canadian students ease their way back into studies and as school staff and administrators start thinking about the million responsibilities that come with a new cohort of international students, I thought it would be useful to review Federal Court Case Law over the past few months and uncover a few points.

I will focus on four points.

[1] PGWP regime not unconstitutionally vague, does not trigger s.7, and refusing a graduate from a private institution that was  not eligible under guidelines, not unreasonable. Brown v. Canada (Citizenship and Immigration)  2018 FC 452 [link to decision] – Manson J. presiding.

Jeremiah Eastman (a former DOJ lawyer for over 11 years)  appeared to make a valiant effort attacking the PGWP regime from all sides, but Manson J upheld the reasonableness of the decision and constitutionality of the PGWP regime. It is important to note that IRCC has now proactively addressed the issue at the heart of this matter by adding a list that sets out whether the DLI is PGWP-eligible and/or if certain programs offered are eligible.

[2] In the context of the requirement of  “actively-pursuing studies,” it is often parallel proceedings that will trigger investigation. CBSA Officers found to have broad discretion by Courts.  – Kone v. Canada (Citizenship and Immigration) 2018 FC 845 [link to decision] – Locke J. presiding.

 

Kone is a fascinating decision because it occurs in a context that I have lectured on for several years in my international student presentations. The Actively-Pursuing Studies requirement (which I have written about several times as being problematic) is most problematic when triggered by CBSA. There are many cases of international students who have missed one or two semesters (due to scheduling/health issues) but have not had issues entering new programs or getting student renewals. Kone gets triggered, not by an investigation into his studies initially, but by a related fraud matter where he is arrested.

Once this occurs, the books become open and the actively-pursuing studies allegation was sought after. We have seen this occur in other contexts as well – border entry incidents, criminal charges, arrests, etc.

The individual at that stage is often in a situation where their ability to provide further explanation is compromised. IRCC’s own process (triggered by compliance reporting and their own investigations) is much more fairer and consists of a PFL that often looks like this.

IRCC actively pursuing studies PFL letter

Students can then present a timeline including explanations as to why certain programs were unavailable or registration was delayed.

I also find the decision fascinating because, it does not (it appears) parse out the statutory requirements of what defines a failure to actively-pursue studies. At one point Justice Locke writes about one period of study:

[62]  First, I note that the applicant makes no reference to any authority indicating that his absence from Canada could excuse him.

The very provision of R. 220.1(1) of IRPR requires actively-pursuing studies only when in Canada on a study permit. Indeed, one of IRCC’s pieces of advice on this issue is to depart Canada or seek a visitor record if there is major gap due to issues such as illness or inability to enroll.

Finally, one thing that still needs to be resolved (in my mind) is whether this type of non-compliance can be cured by leaving Canada in the same way as other unauthorized work or study. IRCC’s Enforcement Manual – ENF 2- Chapter 11 states as follows:

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If a student who has not been actively-pursuing studies leaves Canada and returns either as a visitor (awaiting the re-engagement of their studies) or at a time prior to studies commencing, can the Border Officer go back to previous periods of study and render a decision that they were not actively pursuing studies while holding their study permit. It seems like an area where there is still not absolute clarity, and I’ve certainly seen most border officer’s take the later approach. Even IRCC’s PFL letter suggests that this assessment can be made irregardless of the Applicant’s travel history.

It is also worth noting a second case came out this summer El Kamel v. Canada (Public Safety and Emergency Preparedness) 2018 FC 730 [see attached link occured in the context of a student who was advised by his consultant to seek to amend his study permit at the Port of Entry (likely by flagpole) where he was subsequently issued a s.44 report and exclusion order.  The Officer noted the student’s good faith action at the Border, but noted that there were no grounds for review of the decision finding Mr. E-K did not actively pursue studies.

Expect that the actively-pursuing studies issue continues to be pursued as a ground for refusing non-compliant students but in many cases capture students that border the cusp of being also unfortunate, unhealthy, or unsuccessful which the provision can also apply to.

[3] Study Permit Refusals Should Continue to be JR’d – Raymundo v. Canada (Citizenship and Immigration) 2018 FC 759 [see linked decision] – LeBlanc J. presiding.

As discussed in my last post on the Omijie case [see link here], there has been an increasing judicial scrutiny around study permit refusals. It is understandable. There are now increasing number of study permit applicants, and while Canada has pledged more seats, within a global context it cannot take all applicants. Rates of granted study permits in many countries are still very low (15% or less, and in some cases close to 5%).

Many of these applications will begin with the starting point that the visa officer will likely refuse the application and assume the applicant will not leave Canada at the end of their stay, unless the applicant can demonstrate otherwise. While this is not how the laws and regulations should directly apply, it is a reality of the over-extended demand on a Canadian study permit.

In Raymundo, a study permit applicant from the Philippines applying for Centennial College’s International Business Program was refused a study permit. He had explained in his application why he intended to return to the Philippines to start a marine transportation business. It appears he had family in Canada who would be providing financial support but Mr. R’s wife and kids would be staying in the Philippines. The Officer found that the proposed studies in Canada were not consistent with a logical study plan and that the Applicant did not demonstrate significant socio-economic ties to the Philippines.

Justice LeBlanc found that the decision was not reasonable, rendering the following lines:

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The Applicant directly addressed his attempts in his personal study plan that he tried to find a similar program, yet the program was still found not to make sense.

The Officer also took major issue with the fact that the Applicant had left his wife and son in the Philippines and that this factor was not mentioned at all in the reasons for refusal.

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These are such common reasons for refusal that I see in many study permit consultations. Even with the Federal Court’s guidance with these cases, I still believe that visa officers will continue to refuse study permit applicants with short, trite, and little explained reasons knowing that 95% of them will either abandon their plans or re-apply to a similar refusal. I think the only way to challenge the system is to bring up these cases to judicial review.

I note a second decision this summer, Demyati v. Canada (Citizenship and Immigration) 2018 FC 701 [see link to decision] where a 18-year old Syrian national with a scholarship was refused a study permit.  Justice Roy seemed very concerned with the lack of transparency and intelligibility in concerns that the individual would not return home because of the country conditions. Justice Roy also appeared pertrubed by the type of requirements IRCC was expecting of a young student with respect to his employment history, etc. This is particularly true as parsed out in the facts presented by Justice Roy.

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One of the key differences in this matter that the officer appeared to also go too far in presuming the Applicant would not “actively pursue studies” in Canada without pointing to any evidence. The speculative nature in which was done was criticized by Justice Roy, ironically in the context of s. 7 of the Charter which is rarely ever in the same context of international students, who have no Charter rights in a context of a study permit application. Yet, his criticism, highlights the very real concerns about arbitrary reasoning that comes with many temporary resident visa refusals.

I expect more and more judicial review of these types of decisions. It may be worth considering whether the Government eventually is better off with a per country quota system (that allows for the ceasing of intakes) as opposed to needing to find reasons to refuse applicants that often times will prima facie meet statutory requirements, pending issues about credibility or misrepresentation.

[4] Students Need to Better Pathway Their Studies –  Masam v. Canada (Citizenship and Immigration) 2018 FC 751 [see link to decision] – Walker J. presiding.

I will not break down this case too much (as it is somewhat related to what occurred in Brown above). Ms. M appeared to, likely on the cases of other students, transition from a DLI, George Brown College, that was on the PGWP list to a non-eligible DLI, Canadian College for Higher Studies (CCHS). Upon completion of that second program, it had already been 90-days + since the completion of studies at a DLI. While the Applicant tried to add to the JR record an affidavit from CCHS attaching proof that other students were successfully, this did not render the assessment unreasonable in the Applicant’s circumstances.

This case makes it even more important that students, especially who are seeking to do add-on programs or transition between institutions are aware of how this may affect their overall eligibility for PGWPs.

 

 

The Need to Show Study Progression and Judicially Reviewing a Study Permit Refusal – A Closer Look Through Omijie FC

In  the recent case of Omijie v. Canada (Citizenship and Immigration) 2018 FC 878 [CanLII link], Mr. Omijie is a 26-year old citizen of Nigeria who sought to study at Alberta’s NAIT for a Bachelors of Business Administration program after he had previously graduated, three years prior, from a Bachelors of Science from a university in Nigeria. Mr. Omijie’s student permit application was rejected, and not for the first time [as will be discussed below].

This case highlights the dilemma faced by many study permit applicants, particularly from countries such as Nigeria, where the last figures we have from January – March 2017 show that the number of successful applicants (371) compared to unsuccessful (2,174) and total applications lodged (2,545) leads to a 14.5% success rate.

371 2,174 2,545 53%

I would assume that rate has worsened since with the volume of students seeking entry into Canada from all over the world.

One of the major issues under scrutiny was the fact that the Applicant was seeking a degree to continue studies in a related area at a related level.

It is also important to put into context that the Applicant’s study permit refusal had already gone back once to the visa office for reconsideration after a decision by Justice Diner. The reason it was sent back by the Federal Court was due to (as we will see also from this decision) a lack of explanation for why the “educational and employment history” was problematic.  As summarized in this decision about the first judicial review:

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Justice Pentney (former Deputy Minister of Justice and Deputy Attorney General of Canada many of those practicing will recognize from filing previous Judicial Reviews) made two very interesting points, set out over three paragraphs of his decision, as to why judicial review should be granted and the matter sent back to the visa office for redetermination.

In paragraph 23, Justice Pentney exams the evidence that was put forth by the Applicant for explaining why he wishes to pursue studies in Canada – specifically a desire to pursue hands-on, practical, and technologically advanced training.  The Visa Officer does not question the evidence provided but finds fault in the cost of relocating to Canada to undertake study at the same financial level.

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This is very common among international students who do often come with Bachelor’s or ther advanced degrees from abroad but wish to gain Canadian specific qualifications which may require them to start at a lower level or pursue diplomas.

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Justice Pentney acknowledges that the Applicant may not have set out the grounds of why there was a logical progression between the two studies clearly but that the Officer’s decision to reject what was presented without adequate explanation was itself unreasonable.

A recent trend of overseas visa office refusals that I have seen (both on the student and TRV side) is that the decisions are generally becoming more and more trite, with less and less reference to evidence provided. While a decision-maker is presumed to have reviewed all evidence, silence with respect to evidence that can corroborate the Applicant’s statements and that directly contradicts the visa officer’s decision, can render a decision unreasonable.

That being said, with judicial review being a costly procedure, and with the possibility that matters such as these can end up in a loop of judicial reviews and refusals, it is pertinent to put the best foot forward in the first application and make it abundantly clear how the Applicant meets the statutory and regulatory requirements of a bona fide student (or visitor as the case may be) that will leave Canada at the end of their stay.  In this matter, reference to policy and to previous refusals (if any) is crucial. Whether it is putting a succinct cover letter or organizing the online submission in a manner where the visa officer  is clear as to where documents are located, these small steps when a visa officer has only a few minutes to review a file and render a decision, goes a long way.

The Omijie decision also highlights another issue (and common point of misunderstanding) for those who pursue judicial review and expect that either the process will allow the judge to grant the study permit or else that once it is returned for reconsideration a student permit will be shortly granted.

As discussed by Justice Pentney, granting the study permit (which was sought b y counsel) is simply not an available remedy.

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S. 18.1(3)  of the Federal Courts Act states:

Powers of Federal Court

(3) On an application for judicial review, the Federal Court may

  • (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

  • (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

In a case of this nature there has been no unlawful failure, refusal, or delay in performing the act of approving a study permit under (a), this is clearly a case of (b) where the setting aside for the re-determination is the only appropriate remedy.

Back at the visa office, it is likely (but not always the case) that the Applicant will be granted the opportunity to provide further documentation. The Applicant will need to re-demonstrate that they still hold an LOA to this program, and likely update (in a matter such as this one) proof of finances, study plan, etc.

With the Federal Court now having clearly indicated that the missing piece appears to be the brevity of the decision and no indication why the Officer found the Applicant’s failure, it would be very likely for a more detailed examination of why the Applicant’s study plan fell short. In the alternative, other areas of the decision could be re-examined (proof of finances, etc.), and possibly even an interview set up to determine the Applicant’s credibility in presenting this plan, in person. The other option is for the Visa Officer to simply stop the litigious process and approve the study permit application. Again, neither option is clearly guaranteed through a process like this.

Too often, unauthorized or underqualified representatives will never advise judicial review and end up having their client go through a slew of repetitive refusals that very much harm the prospective chances of ever getting a temporary resident visa.  If not early on, at a certain point in time, there needs to be an acknowledgment of whether the application deficiency is a factual one (i.e. the facts are bad and can’t be fit to meet the requirements – but can also be “improved” upon) or if there are legal deficiencies that lead a visa officer to be unable to budge on their interpretation of the law. In the later case, judicial review (and the heavy expenses that go with this process) may be the only way to go.

I will be posting other cases of judicial reviews in a second (Summer 2018 in International Student Federal Court Litigation) so you will better see the nuances of how the Federal Court process works.