Category Archives: Canadian International Students and the Law

This blog shares legal developments affecting Canadian international students

Immigration Consequences of a Quarantine Act Conviction for Foreign Nationals

Canada Invoking Emergency Order under the Quarantine Act

Today’s posts looks at an interesting legal question.

Health Minister Patty Hajdu announced this morning an Emergency Order under the Quarantine Act that requires any person entering Canada by air, sea or land to self-isolate for 14 days whether or not they have symptoms of COVID-19.

Here are a few links for background to the announcement

 

Criminal Admissibility 101 under the Immigration and Refugee Protection Act (“IRPA”)

What would happen in a foreign national subject to the lower inadmissibility standard for criminality under s.36(2) of the IRPA which states:

Criminality

(2) A foreign national is inadmissible on grounds of criminality for

  • (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

  • (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

  • (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or

  • (d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

Under the IRPA, per s.36(3)(a) IRPA, an offence that may be prosecuted either summarily or by way of indictment (‘hybrid’) are deemed indictable:

Application

(3) The following provisions govern subsections (1) and (2):

  • (a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;

In short, for a foreign national (visitor, study permit holder, or work permit holder) a hybrid offence conviction would render one inadmissible to Canada.

So what does the Quarantine Act say?

 

Quarantine Act Offence Provisions

There are two Quarantine Act provisions that carry hybrid offences, s. 67 and s. 72.

Section 67 states:

Offence committed intentionally

  •  (1) Every person is guilty of an offence if they cause a risk of imminent death or serious bodily harm to another person while wilfully or recklessly contravening this Act or the regulations.

  • Punishment

    (2) Every person who commits an offence under subsection (1) is liable

    • (a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both; and

    • (b) on summary conviction, to a fine of not more than $300,000 or to imprisonment for a term of not more than six months, or to both.

    Section 72 states:

  • Contravention

     Every person who contravenes subsection 15(2) or section 66 is guilty of an offence and liable

    • (a) on conviction on indictment, to a fine of not more than $500,000 or to imprisonment for a term of not more than three years, or to both; or

    • (b) on summary conviction, to a fine of not more than $200,000 or to imprisonment for a term of not more than six months, or to both.

Referring back to the Quarantine Act we find,  the two provisions: the duty to disclose communicable disease

Duty to provide information

  •  (1) Every traveller shall answer any relevant questions asked by a screening officer or quarantine officer and provide to the officer any information or record in their possession that the officer may reasonably require in the performance of a duty under this Act.

  • Marginal note:Duty to disclose communicable disease

    (2) Any traveller who has reasonable grounds to suspect that they have or might have a communicable disease listed in the schedule or are infested with vectors, or that they have recently been in close proximity to a person who has, or is reasonably likely to have, a communicable disease listed in the schedule or is infested with vectors, shall disclose that fact to a screening officer or quarantine officer.

Obstruction of officer

 No person shall hinder or wilfully obstruct a quarantine officer, a screening officer or an environmental health officer who is carrying out their duties or functions under this Act, or make a false or misleading statement, either orally or in writing, to the officer.

It is important to note that as this morning’s announcement was done by Emergency Order, we are still as the publication of this piece waiting for the publishing of the Order in the Gazette which effects criminal enforcement.

Contravention of unpublished order

(4) No person shall be convicted of an offence consisting of a contravention of the order if, at the time of the alleged contravention, the order had not been published in the Canada Gazette, unless it is proved that, at the time of the alleged contravention, the person had been notified of the order or reasonable steps had been taken to bring the purport of the order to the notice of persons likely to be affected by it.

Case Law

Given we know what the consequences are – the next question to be asked is whether the Quarantine Act has ever been enforced against foreign nationals in a manner that creates criminal inadmissibility.

There are no cases that directly reference prosecutions under the Quarantine Act for any individual, let alone foreign nationals. Most of the references are passing references, and those in the context of refugee cases cite s.100(5) of IRPA, which delays the referral process to the RPD from the officer who receives the refugee claim.

 

How Strictly Will It Be Enforced?

Again, I don’t think the provision was made so much with an emphasis on what the back end of  enforcement will look like,  but rather strong message that ‘self-isolation’ and ‘quarantine’ be treated seriously (and as a legal requirement) by the large numbers of Canadian citizens, permanent residents, and permit holders who are returning to Canada.

This is an unprecedented time and it is important for all individuals to recognize that these measures are life-saving. I would highly suggest Foreign Nationals take extra precaution given the possibility of criminal inadmissibility consequences. Given CBSA Officers will be at the front line of enforcing this, foreign nationals may find themselves not too many steps removed from other immigration-related challenges which can also arise on a parallel basis, something we have seen in the past with customs and other administrative enforcement.

Implied Status Student/Worker in B.C? – B.C. Government Extends Temporary MSP (you need to contact Health Insurance BC)

In a welcome announcement today, temporary MSP has been extended to those with expired student and work permits (i.e. on implied status). This temporary MSP will be effective until July 31, 2020.

See Below:

Q2. What if my temporary permits have expired and I no longer have MSP coverage?

In response to COVID-19, individuals who are currently in B.C., who were previously enrolled in MSP as a deemed resident, and their MSP has expired, may be provided temporary MSP coverage.

Individuals should contact Health Insurance BC to request this temporary coverage.

Health Insurance BC

Toll-free: 1 800 663-7100
Lower Mainland: 604 683-7151

Mailing Address:
Health Insurance BC
PO Box 9035 Stn Prov Gov
Victoria, BC V8W 9E3

This may include individuals who have applied for a new work or study permit but it has yet to arrive.

In these circumstances temporary coverage will be granted until July 31, 2020.

The link for all the changes is here: https://www2.gov.bc.ca/gov/content/health/health-drug-coverage/msp/bc-residents/covid-19-msp-qa

What is very important is that you have to call or mail in (it appears) to engage this coverage. 

So do it quickly and tell your affected friends.

I want to take this time to especially shoutout (there are many important people doing important things during the COVID-19 pandemic so this group often gets missed), the low-wage (and poorly defined by our system as low-skilled) temporary foreign workers who are putting themselves at risk, working jobs we do not work, in order to help a country that often has not reciprocated their help. I hope this whole situation and recognition of who is doing the labour, leads us to consider ways we can provide pathways to permanent residence and citizenship for our ‘essential’ workers.

Assessing Family Ties in the Context of Study Permit Applications – A Few Useful Cases

Hello, VIB blog readers:

It has been too long. I recently came back from meandering streets and towns of Cuba. I had an incredible time and needed the break. I’m back (a little sick from a sunset ocean swim) but motivated. Unfortunately, I have been spending most of my time writing conference papers which has mean less time blogging.

Photo I took in Varadero

Today’s blog will be short, sweet, but important. Increasingly, as the Federal Court has pivoted towards the position that procedural fairness (i.e. a PFL) is needed where there are concerns over the bona fides  of a study permit application, refusals are more likely going to come on concerns the Applicant will not leave Canada at the end of their authorized stay. Even on those grounds, with a lack of travel history being continually re-enforced as, at most a neutral factor (see e.g. Justice Ahmed’s comments in Adom v Canada (Citizenship and Immigration), 2019 FC 26 http://canlii.ca/t/hwx6m at para 15), there are becoming fewer and fewer ways for IRCC to actually substantiate that an individual will not leave Canada at the end of their authorized stay.

One of the common ways Officers wish to do this is by highlighting family ties as a reason for refusal. Argument is that because an individual has family in Canada (either other family members or relatives on permits, as permanent residents, or citizens) that they will not leave Canada. This can also be demonstrated by showing the Applicant is not leaving or leaving limited family members behind in their country of origin/residence.

One way this is often addressed in the context of someone visiting their Canadian spouse (for example) is to put in a dual intention argument.

I have written previously on the need to exercise caution when claiming dual intention, especially when there is not a clear or immediate pathway to permanent residence for international students.

Exercise Caution When Claiming Dual Intent on Study Permit Applications – International Students

I am still debating whether I am of this opinion, as there has been some recent positive case law (see: Bteich v Canada (Citizenship and Immigration), 2019 FC 1230  http://canlii.ca/t/j2kzr). My opinion has shifted in that I do think a case-by-case assessment should take place. I will address this case below.

Addressing Family Ties

In the section that follows I  want to highlight a few strong cases from the Applicant’s side before looking at one case that the Department of Justice may lean on.

In the aforementioned, Bteich v Canada (Citizenship and Immigration), 2019 FC 1230  http://canlii.ca/t/j2kzr, Mr. B, a resident of Lebanon was applying for a study permit. His immediate family (parents) were in Canada on valid work permits and her three sisters were pursuing education in Quebec. He was admitted into the University of Montreal.

One of the major reasons he was denied was that he had strong family ties in Canada and the Officer had concerns that the Applicant would be coming to Canada for reasons other than those stated in his application (at para 10).

In assessing family ties,  Justice Shore highlighted the Applicant’s arguments (which were well made, I might add):

[12] The Applicant submits that it was unreasonable for the Officer to consider the parents’ lawful status in Canada as a negative factor. In support of this submission, the Applicant refers to the Minister’s Operational Instructions and Guidelines (OP-11 Guidelines, at page 13) which suggest a favourable consideration of family members with lawful status and stable employment in Canada.

[13] The Applicant further argues that the Officer made an arbitrary decision based on unintelligible reasons when he failed to justify how the legal presence of the Applicant’s parents in Canada warranted a negative consideration.

[14] The Applicant also submits that the Officer failed to consider that the presence of the parents with valid work permits would likely ensure that the Applicant has sufficient financial support (Girn v Canada (Citizenship and Immigration), 2015 FC 1222 at para 32; Tavakoli Dinani v Canada (Citizenship and Immigration), 2012 FC 1063 at para 27; Demyati, above, at para 11).

[15] In drawing a negative inference from the parents’ status in Canada, the Officer also failed to consider that the Applicant may have a legitimate dual intent, as permitted by the IRPA at subsection 22(2).

Justice Shore highlighted in analysis that the simple tying in of strong family ties to an individual remaining illegally was an unreasonable inference:

(2) The Officer acted without regard to the evidence of the Applicant’s current studies

[33] The IRPA explicitly provides for the possibility of having a dual intent:

22 (2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.

[34] In this case at hand, the Applicant has strong ties in Canada with well-established and legally established members of his family. This Court agrees with the Applicant’s submissions as summarized above at paragraphs 12 to 15: the Officer should not have drawn negative inferences from the Applicant’s family ties in Canada. If anything, the Officer should have considered the financial support the Applicant’s family provides as a positive factor. At the very least, the Officer should have justified his/her reasoning: it is unreasonable to infer that Applicant will remain in the country illegally simply because he has strong family ties in Canada.

As set out in the beginning of the decision, in overview:

[2]  In this case at hand, the Applicant has strong ties in Canada with well-established and legally established members of his family. This Court agrees with the Applicant’s submissions as summarized below at paragraphs 12 to 15: the Officer should not have drawn negative inferences from the Applicant’s family ties in Canada. If anything, the Officer should have considered the financial support the Applicant’s family provides as a positive factor. At the very least, the Officer should have justified his/her reasoning: it is unreasonable to infer that Applicant will remain in the country illegally simply because he has strong family ties in Canada.

Bteich reminds us to actually present and assess the family members in Canada, where they have status and where they are of financial support to the Applicant’s proposed studies. If there is concerns that the Officer will speculate on this tie, it may be worthwhile to highlight Justice Shore’s reasoning.

In Gauthier v. Canada (Citizenship and Immigration), 2019 FC 1211 (CanLII), <http://canlii.ca/t/j2sgg>, Justice Shore again raises a strong argument that family ties are at the heart of individual lives, but that it is not enough to simply consider it a risk of an individual not leaving Canada.  In finding the refusal of a Haitian national applicant with a sister in Canada unreasonable, Justice Shore writes:

[18]  To arrive at his findings, the immigration officer was entitled to consider all of the factors—including family-related factors—that could prompt the applicant to stay or not to stay in Canada at the end of her study permit. Since family lies at the heart of our lives, it is an important element in the determination of place of residence. It was therefore reasonable for the immigration officer to consider the applicant’s family ties as a “pull factor”.

[19]  However, in conducting this analysis, the immigration officer placed an unreasonable emphasis on this personal factor. Admittedly, the evidence on the record shows that her sister is in Canada and is prepared to host her; however, it cannot be concluded that the applicant is necessarily at risk of not leaving Canada at the end of her study permit.

Finally, in Peiro v. Canada (Citizenship and Immigration), 2019 FC 1146 (CanLII), <http://canlii.ca/t/j2fsr>, Justice Manson examined a refusal where the Officer highlighted the Applicant’s brother, an international student in Canada, and determined it created strong family ties in Canada, even though the remainder of the family was Iran.

Justice Manson first sets out the arguments of the Applicant and Respondent (Minister) before assessing his position:

1.  Family Ties

[18]  Based on the record, the Applicant’s only family in Canada is his younger brother, who is currently an international student in Vancouver. The Applicant’s parents remain in Iran.

[19]  The Minister argues that the Applicant is a single adult male with no spouse or dependants in Iran, and the record states that the Applicant was responsible for caring for his brother in Canada. The record is silent on the Applicant’s brother’s permit status, but as he is an international student, his stay in Canada is temporary.

[20]  The Officer’s reasons with respect to family ties provide no reasonable basis for his position. While the officer mentioned family ties, he did not explain how the temporary presence of the Applicant’s brother in Vancouver would outweigh the Applicant’s family ties to Iran, which include his parents and family business which he intends on returning to after his studies.

Again this case suggests that parsing out as well who has status in what country in addition to simply indicating their names is important. I suggest letters of explanation and support where pertinent as well copies of identification (passport bio-data pages, and permits). One thing I have been doing more of is having the family members inside and outside Canada writing with assurances of compliance.

A recent case you will likely see the Minister rely on is the case of Hajiyeva v. Canada (Citizenship and Immigration), 2020 FC 71 (CanLII), <http://canlii.ca/t/j4vm2>

In the case of Ms. Hajiyeva, as is the case with many potential international students, she sought to come to Canada alongside her spouse and children.

Justice Diner writes:

[5]  Ms. Hajiyeva argues that the Officer ignored evidence, and failed to provide adequate reasons relying on Omijie v Canada (Citizenship and Immigration), 2018 FC 878, at para 26 [Omijie]. I find, however, that this case differs from Omijie. First, while the Applicant’s parents and brother would remain in Azerbaijan, her immediate family (husband and children) would join her in Canada; she indicated her husband would obtain a work permit and gain international work experience, and her children would attend school and be exposed to Canadian values. The Officer’s finding regarding her incentives to remain in Canada were reasonable. Here, the finding that her evidence and supporting documentation fell short of demonstrating that she would leave Canada at the end of her study period was open to the Officer.

In cases such as these, there may simply be no way to overcome the pure mathematics of the family members (and their closeness) vis-a-vis the plan and the country of origin. That being said, one might need to be a bit cautious in seemingly explaining the family’s plans to ‘settle’ in Canada (as workers and students) and how that may detract from both the study plan but also create the reasonableness of an intention to immigrate or stay permanently (especially if no dual intention is otherwise claimed).

Post-Script Note

I will be in Montreal from April 2nd to 4th including a panel on April 3rd on study permits.

See: http://cba.org/Immigration-Law-Conference/Agenda/5B

I look forward to seeing you there and dorking out on study permits.

Post-Graduate Restoration Woes Continue – Ntamag and the Nookala R.182 IRPR Conundrum

PC: https://plugin-magazine.com/living/sonica-festival-of-transitory-art/

It has been awhile since I have written on post-graduate work permits and restoration but I feel inclined to do so as a result of a recent decision of the Federal Court in  Ntamag v. Canada (Immigration, Refugees and Citizenship) 2020 FC 40.

 

Ntamag and Chief Justice Gagné’s Decision

The facts are not too relevant in what I am about to assess. In short, Ms. Ntamag did not apply for a post-graduate work permit before her study permit expired on 30 November 2018. She only received confirmation of her completion of studies on 4 December 2018. She waited until 16 February 2019 to request that her status be changed to visitor. That visitor restoration was denied on the basis, among three other factors, that she did not accompany a post-graduate work permit application with the restoration application.

For a little background context (although Associate Chief Justice Gagné’s decision does not highlight this), IRCC put out a program delivery update on 14 February 2019 which extended the eligible period in which an Applicant can apply for a post-graduate work permit from 90 days to 180 days. This change also removed the requirement to actually hold a study permit while making a post-graduate work permit application. Furthermore, the provision was applied so that applications moving forward could benefit from the extended period of time.

What the Applicant was presumably trying to do was to restore their status to visitor in anticipation of later being able to make a post-graduate work permit application while a visitor. We have no information in this case about when the decision was made and whether the Applicant could have presumably restored her status to visitor before first before making another post-graduate work permit application. We do know that it appears the application was deficient of information to assess her restoration to visitor.

Perhaps what is more problematic is that as a consequence of the Applicant arguing for the restoration provisions in R. 182 IRPR having one broad (‘shall’) interpretation [see para 15 of decision] – Associate Chief Justice Gagné returns back to what has become a problematic tenant created by another Federal Court case Nookala v. Canada (Citizenship and Immigration), 2016 FC 1019 (CanLII), which she applies:

[18]  Ms. Ntamag also did not include any proof that she had applied to the PWGPP, nor does her Application mention any intention to do so. Yet, Ms. Ntamag was represented by counsel who was likely familiar with the IMM 5708 process for visa extensions and restoration of status. However, Ms. Ntamag has offered no explanation as to why she failed to include these two pieces of required information. She has also not submitted any evidence that she has applied for a PGWPP since February 2019.

[19]  Given that the application is missing several required elements, and that Ms. Ntamag has not explained these gaps in her materials, I find the Officer’s conclusions reasonable.

[20]  Second, I am also of the view that the officer did not err in his interpretation of section 182 of the Regulations. Subsection 220.1(1), which is referenced in Subsection 182(2), makes it clear that an Officer must not restore the status of temporary resident’s Study Permit if they are not currently enrolled at a designated learning institution or actively pursuing their course or program. As Ms. Ntamag was not in compliance with these conditions at the time of her Application, the Officer’s interpretation of Section 182 and its relevant provisions was reasonable.

[21]  One of the conditions imposed on a PGWPP applicant is that the application be sent before the expiry of the applicant’s Study Permit. As Ms. Ntamag did not meet that condition, she asked to be granted a Visitor permit to be valid until January 1st, 2021.

[22]  However, just as section 182 and the 90-day grace period that it provides do not apply to a former student seeking a PGWPP, they do not apply to a former student seeking to obtain a Visitor Permit. Ms. Ntamag could not simply rely on section 182 to obtain a different Temporary Residence status than the one she had held before she applied (Nookala v Canada (Minister of Citizenship and Immigration), 2016 FC 1019).

 

Analysis

It is unclear if the 14 February 2019 PDU was every put in front of the Court in this case as an argument. Had the Officer ignored this development and the intention created by IRCC to remove the requirement to hold a study permit (and allow the holding of a visitor record) at the time of application, perhaps the reasonableness of the decision would have been put in question.

This decision also re-highlights a fundamental disconnection between the wording of R.182 IRPR and the application in practice that it has taken through policy instruments and other processes.

R. 182 IRPR states as follows:

Restoration of Temporary Resident Status

Restoration

  •  (1) On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act.

What does that ‘restore that status’ ultimately mean?

IRCC has provided up instructions, that as counsel for Nookala highlighted in their post-case submissions [see para 24 of that decision] asks officers to look at restoration not through a backward lens of restoring an individual to the status they held but rather to a status they are able to meet, if they still meet the initial requirements of their stay.

Eligibility requirements for restoration of status

Applicant requirements

The applicant must

  • apply within 90 days of having lost their status;

  • meet the initial requirements for their stay;

  • have not failed to comply with any other condition (e.g., working without being authorized to do so);

  • meet the requirements of the class under which they are currently applying to be restored as a temporary resident.

  • have lost their status because they have failed to comply with any of the following conditions:

    • Paragraph R185(a)The period authorized for their stay.

    • Subparagraphs R185(b)(i) to (iii)The work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including the

      • type of work,
      • employer, and
      • location of work.
    • Paragraph R185(c)The studies that they are permitted to engage in, or are prohibited from engaging in, in Canada, including the

      • type of studies or course,

      • educational institution,

      • location of the studies, and

      • times and periods of the studies.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/restoration-status.html 

When IRCC’s own policies are asking Officers not to be too literal, the Court is still returning to the legal provision and taking a literal interpretation.

As Nookala’s counsel provided, IRCC’s instructions (still up four years later) suggest:

The phrase “initial requirements for their stay” should not be read too literally when it is being applied in the context of a restoration application, and the requirements of section R179 should not be applied rigidly in that regard. The preferred interpretation in this context would be that the person seeking restoration must meet the requirements of the class under which they are currently applying to be restored as a temporary resident. The desired approach to the restoration provision of section R182 is to be facilitative and consistent with the current approach to extension applications of the provision in section R181, since the two provisions are similar in nature and section R181 actually refers specifically to the requirements of section R179.

See: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/restoration-status.html 

Incompatibility with Current Practices

IRCC’s current recommendation on restoring post-graduate work permits is actually the very process Justice Mactavish found problematic in Nookala. As per, this Immreps response below, a transitory restoration to student is now the preferred process:

Last year, while this process was unclear I was successful in restoring someone via a transitory visitor status doing the same thing that the Court in Ntamag found problematic except for the fact I attached a post-graduate work permit application. That cannot be, however, the principled difference – especially if the Applicant has 180 days rather than 90 days from completion of studies and could arguably complete both a restoration to visitor and make a new post-graduate work permit application within the applicable period [subject to R.199 IRPR].

This cases also raises questions about IRCC’s many other programs that operate on a model where restoration to a status not held is a basic tenant. For example, spouses who have lost status but are applying for Inland Sponsorship are able to restore their status to work permit holder. We frequently assist out of status workers who no longer have an employer/arrangement in Canada to restore their status as a visitor while awaiting a new employment opportunity.

It is important to note that while the case law so far has been negative (particularly of late) on the PGWP matter, I would suggest that many cases have not yet seen (and may never see) the light of day. I still believe in some of these cases pursuing either settlement with Department of Justice or reconsideration options might seek remedies better than having the Court need to reconcile two presently irreconcilable provisions.

That being said, if Justice Gagné and the Nookala impossibility of restoring to a transitory status is continued, all of IRCC’s guidance on restoration through a transitory study permit status and the regulatory changes that allow an individual not holding a valid study permit to apply for a PGWP, are rendered irrelevant in the context of restoration.

 

Conclusion

I believe that for the interest of fairness and to reflect practice, restoration should be given a broader interpretation than that meaning one can only restore to a status held. It should be forward looking.

I think IRCC should urgently clarify instructions for Post-Graduate Work Permit restorations (something they should have done years ago) and then hopefully lawmakers can amend the R.182 language to clarify that the restoration of these statuses is a forward (not backward) looking endeavour.

Law Student Legal Advice Program – Assistance for Low-Income Immigration/Refugee/Citizenship Applicants

Many of you may already know or have recently heard that I found a new home for providing legal services and mentorship. I am humbled to join a list of my respected professional mentors such as Tim Bailey (currently at the Law Foundation of BC) and Sarah Marsden (current Clinic Director/Professor at Thompson Rivers University Law) in becoming a part-time Supervising Immigration Lawyer here at the Law Student Legal Advice Program (“LSLAP”), a non-profit legal clinic which operates through UBC’s Allard Law School.

I work alongside incredible practitioners Chris Heslinga (Supervising Civil Lawyer) and Andrew Bonfield (Criminal Law) and am able to come UBC/Allard once a week to meet with students and prepare resources/strategies to assist more low-income and vulnerable clients. I try and stretch the five hours I have where I can 🙂

LSLAP offers summary legal advice and representation for low-income clients in a variety of legal areas (see: https://www.lslap.bc.ca/). There are income thresholds which those that operate phones and run summary advice clinics will screen for.

Specific to immigration, I supervise law student clinicians who are taking on cases ranging from refugee files to temporary residence, permanent residence, enforcement, appeals, and citizenship matters. We don’t currently do judicial reviews but I am working on some resources that may help self-represented litigants in this regard.

The benefit of LSLAP  is that our clinicians can take on cases that other agencies may not be able to. We take on a lot of student matters, assist on temporary work issues, and in particular specialize in some of the roadmapping that help low-income individuals avoid legal problems that could come at high costs. Another area where we do a lot of work is with humanitarian and compassionate grounds applications and those requiring relief on temporary policies. I suspect that with increased emphasis on enforcement, we will also be assisting more individuals with guiding them on restoration.

We also rely heavily on a strong referral network to ensure our clients are matched up with other legal service providers and are aware of their ability to apply for legal aid, or to seek representation in complex refugee matters.

I personally review every immigration matter that goes out the door to make sure the advice is accurate and that we’re providing timely assistance (although with students, we may not be able to step in on emergencies – stays, pending removals, etc!)

Other practitioners may also find some benefit in the manuals LSLAP produces. See the Immigration and Refugee Law Manual here and the Citizenship manual here.

In short, this short blog is to let you all know about this resource for your clients and get in touch with me at immigration.sl@lslap.bc.ca if you would like to refer a client directly. You can also call the switch board at the info below:

​Please call (604) 822-5791 to schedule an appointment.
Please call (604) 684-1628 to set up a Chinese language appointment at our Chinatown clinic.
如果你需要中文服務的話,請撥打(604) 684-1628 將會有人幫您預約時間.

Please note that LSLAP cannot give legal advice over the telephone. Also, please remember to bring a piece of ID. 
Our office hours are Monday to Friday from 10AM – 4PM. We are closed on all public holidays.​

​See you and your clients soon!

The Urgent Need to Create Leave Provisions for Undergraduate International Students

Since January of this year, IRCC has now provided instructions that allow for authorized leave periods of up to 150-days contingent on school approval. The problem now is that institutions have not kept up nor been held to account for not putting in policies that accord with these changes.

I believe they need a ‘call in’ so let me tell you why it is so pertinent right now to institute these changes.

The Current Policy

I have reproduced IRCC’s current policy on “Leave from Studies” below:

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)

As you can tell these policies are short, broad, and open to the interpretation that was meant to be filled by school-specific policies.

Regarding just the instructions, I have recently tweeted some concern about a few important contexts that the instructions could do a much better job of breaking down to allow international students to recognize specific scenarios that they are facing:

However, in the piece I want to tackle the second part of this – that the schools need to authorize the leaves and they are behind on implementing the accommodation that IRCC has provided.

Current School Policies are Problematic – Particularly Considering Immigration Processes

Unfortunately, many institutions have not yet kept up. Their policies currently are either non-existent or restrictive in ways that are not defensible. Many discriminate based on perceived ‘levels’ of education – offering authorized leaves for graduate students in select programs but not undergraduate students. Many of these leave policies do not address mental health issues, the consequences of sexual assault, and other areas where options/knowledge is necessarily needed.

The challenge is that IRCC’s own instructions for students who are not actively pursuing studies and not authorized for leave, they should be changing their status to visitor within a reasonable time of no longer being enrolled or actively-pursuing studies. If the 150-days do not apply, international students really are swimming into uncertainty. Furthermore, their switching to visitor engages an application in which (as I alluded in another recent blog) creates a lot of uncertainty around self-disclosure and possible consequences.

Granting a school authorized 150-day leave has an added benefit of giving the student a gap before they have to make a disclosure. Perhaps in those 5 months, any illness or mental health challenges they are dealing with can have some plan or remedy that can fit within Canada’s medical inadmissibility regime particularly around excessive demand. Perhaps, in some cases switching to another status or even departure from Canada may be the interest of the students but a 150 days creates necessary space for those decisions to be made.

Another major problem, as a recent presentation to a set of institutions revealed is that while any of them claim to have leave provisions a disproportionate number of institutions don’t make those policies publicly accessible or transparent. This is problematic too when Officers are reviewing documentation from applicants which may (or may not) include these policies and are then unable to make informed decisions on granting extensions and post-graduate work permits. In my colleague Lily Le and I’s random survey last summer of 19 post-secondary institutions [all DLIs, all from the same organization, including both reputable universities and colleges] only 2 had any mention of leave with only one with unique information that was not a link to IRCC’s website.

Rise in Compliance Challenges on the Horizon

We know right now there is a major challenge because the number of international students attending #DLIs is not commensurate with the number of student being selected for Express Entry.

Per my colleague Dave Sage, highlighting the 2018 Express Entry End of Year Report:

“Only 29% of all ITAs issued to people in the EE pool were to those who claimed additional points (this means having completed studies in Canada, for one).”

In a recent IRCC talk, Dave Sage highlighted IRCC provided a figure of 1 out of 4, suggesting it is about 25-29%.

Given those percentage challenges, one way to address this bottleneck may be to refuse more students in the middle of their studies or sort out those students who do not have reasonable prospects of completing their studies. I suspect and predict, particularly with exit controls coming in and with more policies now in place, a corresponding increase in enforcement.

I suspect international students to increasingly run into challenges at the border, facing removal orders, and subject to compliance where educational institutions report them or when the information on forms, such as visitor records and student extension forms, triggers them.

Writing Public Policies to Respond

I have heard from a lot of institutions that the challenge comes from bringing together academic staff, international student staff, and administration.

The fear is that writing these types of policies may expose the University to further administrative challenges, start creating situations where students seek leave in overly excessive numbers, and also create possible disputes.

From my perspective, the bigger risk is not in tackling the avoidable challenges students will face but staying silent to them. I do believe students will begin choosing institutions based on the safety nets they can provide and that this is a positive, not negative thing, given the treacherous waters international students often have to navigate. I believe universities and colleges will lose business and open themselves up to risk of challenges to their practices (including perhaps legal) that will cost much more in the long-run then providing clear and transparent accommodation.

Schools that do not already have a team of RCIC, RISIA,  outside counsel, and international students who provide lived experience input should form these teams and start drafting leave provisions immediately.

IRCC Needs to Better Coordinate with Provinces

One of the concerns we have heard is that IRCC has dropped some of these new policies without enough time for Provinces to advise their ministries and also for Schools to consult. Changes such as undergraduate leave take time and take consultations that require balancing financial incentives to do so, the number of stakeholders that this involves, and also to determined whether this is indeed in the school’s best interest.

This will not take months for some schools.

I would suggest in the interim IRCC does provide either an H&C exception for those students who are not covered or authorized by universities/colleges OR instead involving the Province on an assessment for students who are excluded due to institutional rules.

Five Immediate Steps IRCC Could Take to Make Forms/Application Processes More User Friendly

Recently in Sbayti v. Canada (MCI), 2019 FC 1296, Justice Pamel (a recent appointee to the Federal Court earlier this year) had a bit of a field day with IRCC’s forms and processes. In this case, an individual who was in a grey-area situation with respect to a previous departure/possible removal from the United States was unable to properly answer a check box “yes/no” question while providing an explanation.  Justice Pamel allowed the judicial review and found the Officer’s assessment unreasonable.

This case got me thinking – what are some of the ways IRCC can change their forms to make it user friendly? I have five ideas of where to start.

1) A Catch All Box at the End of Forms

The challenge cited by Justice Pamel comes from forms that turn many questions that are of some confusion to an applicant into a binary “Yes” or “No”. The answering of “No” then greys out the box that allows you to provide any explanation.

One of the immediate solutions that I would suggest is to adopt what is currently being used in the IMM 5532 relationship box to ask clients if they have anything else they would like to share. Adding a catch all box could also serve to gather some of the important information to dig into compliance-related data and positive disclosure.

Again, because self-represented clients get a “Client Information” instead of a “Representative Submission” box [which I argue a separate “Cover Letter” section may be appropriate as well], these further explanations can often be missed throughout the application. A catch-all box on  a form would provide that added benefit, although possibly will provide challenges to the ways applications are filtered and triaged.

As you may know many individuals are being found inadmissible for misrepresentation for mistakes that arise out of what are more akin to uncertainties. This has a dual benefit of giving clients  space to express uncertainty but also giving further proof that a second question was reviewed and answered before alleging an individual was not truthful or made a material omission. Counsel will likely continue to utilize submission letters but for self-reps this will be a major added benefit.

2) Clearer Transparency on Information-Sharing

I have recently done a talk and am drafting an introductory article on how privigration (i.e. the meeting of privacy law and immigration law) is one of the most under-studied yet on the up and up areas. Via our interactions with border officers (which now will involve exit controls) and immigration application forms, our information is transferred through ‘personal information banks’ (PIBs)  to different government agencies and could be used for a variety of purposes that may or may not be justifiable under the Privacy Act. Right now this information is disseminated via small barely visible box. The number of different PIBs in which information from a migrant is being shared would astound the lay-person. Indeed, through the Gazette’s and various pieces put out by IRCC and CBSA that a major part of these changes are to increase cross-collaboration to track those who are abusing government social services. It also increases the tracking on refugees and other vulnerable migrants. There needs to be transparency around this and either the forms or accompanying instructions should provide that.

3) Specific Reasons for Refusal in a Separate Box (copy and pasted from GCMS)

One of the major challenges with temporary resident refusals is that the form does not contain full and detailed reasons to allow an individual to, in most times, even begin to address their refusals. Individuals need to file Access to Information requests that can take lengthy periods of time and for those without Canadian contacts or addresses be nearly impossible to submit.

I would suggest that IRCC move to a model other than the bullet point or the check boxes and into one where a small box where the Officer’s reasons can be copy and pasted from GCMS. This would decrease the strain on the ATIP system and allow applicants a clearer window on to how a new application can assist them. The unforeseen consequences of a system where applicants are denied these reasons is not only their lack of knowledge of judicial review and reconsideration as pathways but the continued exploitation at the hands of agents who are able to coax new applications and fees on the basis of ‘a few less check boxes’ to go.

It is not clear, as well, particularly in the context of Canadian refusals that written reasons can be requested. When you also place a 15-day time limit on judicial review and then refuse with no reasons it creates major procedural fairness issues for applicants to know the case to be met.

My solution would be to add a box and copy what is usually in the GCMS notes of the Officer – to put that section forward and let the applicants know. It cannot be up to counsel to advise their clients to know that this can be done, particularly where refusal letters are silent.

4) A Separate Uploading Section for Attachments to IMM Forms;

Online uploading is another notorious challenge. IRCC has made some major improvements (especially through their Express Entry portal) in clarifying where certain things are to be uploaded. One of the ones where I think changes can be made is in either making many of the standard forms drop down for the 10 year Personal History or else create a clear template/upload for the Attachments that we often add.

The consequences of not having this upload/process apparent are two-fold. First, applicants are unaware that failure to disclose relevant work/employment/volunteer history could have major consequences as they interface with permanent residence applications. Second, visa officers have consistently missed when these attachments are added to submission letters. Third-party Visa Application Centres (“VAC”) can through communication mistakes mis-shuffle/accidentally remove these important attachments.

5) Clarifying the Issues that Affect the Most Vulnerable Students and Workers

With workers and vulnerable students, there major concerns that revolve around particularly mental health (for both), attendance/continuous employment (for , and also for workers, whether or not they have “worked without authorization.” The problem with all three of these are that neither the forms or law provide clarity on the best manner of disclosure on the forms. When is a student required to disclose they are not ‘actively pursuing’ studies? This would not be considered “attending school without authorization” by technical definition.

Similarly, if a worker may be uncertain whether or not their employment is unauthorized if those contours are not made readily available how is work without authorization self-declared? The forms should not create a punitive ‘all-or-nothing’ proposition but instead serve to genuinely provide transmission for concerns and possibly corrections.

The same goes with mental health issues. I will do another blog specifically about the interaction with disclosure and admissibility challenges but the nature of the form continues the historical discrimination against those with mental health related challenges. It creates uncertainty.

It is my recommendation that IRCC provides separate instructions for the admissibility. Whether or not this reassures students at the very least it adds some clarity as to what should be disclosed and what possibly does not need to. Especially because these form questions are connected to triaging and possible delays. It would also strengthen the case for misrepresentation and lead to less confusion for students.

 

Understanding the Six-Month Ban on Work Permits and Study Permits

In today’s bit of a fun exercise for people who like to dork out on these things, let’s take a look at the six-month on work permits and study permits – what the Regulations (IRPR) say, what the IRCC website says, and try and make sense of all of this fun stuff. I have tried to interlace [somewhat witty] commentary in between the analysis.

TL;DR – I feel sorry for those who have to work with this on a daily basis.

[1] Work Permits

The relevant Regulation is R200(3)(e)(i-iv) of the Immigration and Refugee Protection Regulations. 

Exceptions

(3) An officer shall not issue a work permit to a foreign national if

 

  • (e) the foreign national has engaged in unauthorized study or work in Canada or has failed to comply with a condition of a previous permit or authorization unless

    • (i) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition,

    • (ii) the study or work was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c);

    • (iii) section 206 applies to them; or

    • (iv) the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act;

We know that the six-month period from the end of the unauthorized work/study and failure to comply with a condition becomes relevant [more on this later]

We also know that there are exceptions for those on ‘No other means of support’ permits  – refugee claims and those those subject to an unenforceable removal order. We also know that there are exceptions for subsection 24(1) of IRPA – Temporary Resident Permit holders.

There seems to be some tension on the face with the mention of a condition in (e), (e)(i), but the use of conditions [plural] in (ii).

Let’s then dive back into subsection (ii) – a section I looked at back in 2016.

I’ve bolded the out clauses and underlined a couple of interesting sub sections.

Specific conditions

 An officer may impose, vary or cancel the following specific conditions on a temporary resident:

  • (a) the period authorized for their stay;

  • (b) the work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including

    • (i) the type of work,

    • (ii) the employer,

    • (iii) the location of the work,

    • (iv) the times and periods of the work, and

    • (v) in the case of a member of a crew, the period within which they must join the means of transportation;

  • (c) the studies that they are permitted to engage in, or are prohibited from engaging in, in Canada, including

    • (i) the type of studies or course,

    • (ii) the educational institution,

    • (iii) the location of the studies, and

    • (iv) the times and periods of the studies;

  • (d) the area within which they are permitted to travel or are prohibited from travelling in Canada; and

  • (e) the times and places at which they must report for

    • (i) medical examination, surveillance or treatment, or

    • (ii) the presentation of evidence of compliance with applicable conditions.

 

(B) The Website

Unauthorized work or study

There are several factors that could be applied under paragraph R200(3)(e). Only 1 of the following factors [R200(3)(e)(i) to (iv)] needs to apply for the officer to refuse the work permit.

We see from the website interpretation that they are going to harp on the fact any violation could constitute a six-month bar.

(i) Unauthorized work or study and 6 months not elapsed

As per subparagraph R200(3)(e)(i), the officer should not issue a work permit if either of the following applies:

  • the foreign national worked or studied in Canada even though they never held a previous work or study permit, nor were they authorized to work [R196]
  • the foreign national worked or studied in Canada under authorization but did not comply with the imposed conditions [R200(3)(e)(ii)]

The officer may issue a work permit as long as 6 months have passed since the foreign national stopped their unauthorized work or study.

…….

(ii) Failed to comply with more than 1 imposed condition

As per subparagraph R200(3)(e)(ii), if the foreign national has failed to comply with a condition of a previous permit or authorization, unless the study or work was unauthorized only because the foreign national did not comply with conditions imposed under paragraph R185(a)subparagraphs R185(b)(i) to (iii) or paragraph R185(c). Paragraphs R185(d) and (e) are not included in these exemptions.

If the foreign national did not comply with only 1 imposed condition, a work permit can be issued as long as they have applied for restoration of their temporary resident status.

However, if the foreign national did not comply withmore than 1 imposed condition, they may not be issued a work permit under paragraph R200(3)(e).

Example

A temporary worker was authorized to work for employer A as a waiter until July 15, 2017, and continued working beyond July 15 without applying for a new work permit.

If the foreign national otherwise meets eligibility and admissibility requirements, they could be issued a new work permit without waiting for 6 months to elapse.

However, if the temporary worker was authorized to work for employer A as a waiter until July 15, 2017, and on August 15, 2017, they began working for employer B as a waiter, their work is considered “unauthorized” and they must wait for 6 months to pass since the day the work for employer A stopped before a work permit can be issued.

Source: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/prohibitions.html#unauthorized

My statutory interpretation differs from IRCC’s in that I still see R.200(3)(e)(ii) as standing for any combination of those conditions not being enough to find one subject to the six-month bar. I don’t see how the lack of plurality in the 200(3)(e) language does any more than suggest the violation of 1 condition is enough for the six-month bar. I don’t see any impetus for this 2 or more imposed condition violations create a six-month bar.  That being said, this policy as it is currently written  will mostly capture workers who for example have overstayed plus a second violation. Given the open work permits and study permits involved, it is hard to come up with a scenario that captures international students.

However, it is clear from the language of those two exception sections that there are a lot that are not caught.

Which moves met to my next point of….

[2] Post-Graduate Work Permit

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).

An RCIC colleague sent me this gem of a response from Immreps.

Immreps Response dated 06 March 2019

Response: Examples of conditions that students may violate could be working without authorization (e.g. continue to work after they completed their studies but before applying for a PGWP) or not actively pursuing their studies.

I do think this is right.

Students who work when not authorized – for example between knowledge of completed studies and when they applying for a PGWP appear to be captured under R.185(b)(iv) IRPR [no exception].

However there can certainly be some grey read in on another provision. Does actively pursuing studies fall under s.185(c)(iv) IRPR [exception granted]  or s.185(e)(ii) IRPR [no exception]. In my mind it likely falls under a separate section s..222(1) IRPR but would that create overbroad consequences?

I do have a question about why this is not currently available on IRCC’s website in plain letter wording setting this out. I think all Immreps responses should be accessible publicly and/or immediately incorporated to updated instruction to lessen any confusion.

[3] Study Permit

The six-month study permit bar (or ‘failure to comply with conditions’) is similarly worded and not worth repeating in full but worth looking at in terms of what IRCC’s website has to say.

The Regs:

Failure to comply with conditions

 Despite Division 2, a study permit shall not be issued to a foreign national who has engaged in unauthorized work or study in Canada or who has failed to comply with a condition of a permit unless

  • (a) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition;

  • (b) the work or study was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c); or

  • (c) the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act.

IRCC’s website:

Six-month ban [R221]

The first step in processing an application is to determine the admissibility with regard to section R221.

A FOSS or GCMS check will provide a case history. If the applicant is not described in R221 and there is no inadmissibility then proceed with assessing their documentation.

If the applicant has lost their status while in Canada (see section 47 of the Immigration and Refugee Protection Act for loss of status), determine whether the “six-month ban” on the issuance of a study permit applies.

Side note from the Immigration and Refugee Protection Act. 

Temporary resident

 A foreign national loses temporary resident status

  • (a) at the end of the period for which they are authorized to remain in Canada;

  • (b) on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or

  • (c) on cancellation of their temporary resident permit.

If the applicant has engaged in unauthorized work or study in Canada or has failed to comply with a condition of a permit, officers cannot issue a study permit unless a period of six months has elapsed since the applicant ceased engaging in the unauthorized work or study, or since the applicant failed to comply with a condition that was imposed on them. See section R185 for details on the conditions that may be imposed on a temporary resident.

However, it is to be noted that there is no requirement to wait for the passing of six months prior to the issuance of a study permit if the unauthorized work or study in which the applicant engaged was unauthorized because of non-compliance with any of the following conditions [R221(b)]:

  • period authorized for their stay [R185(a)];
  • type of work permitted to engage in, or prohibited from engaging in, in Canada [R185(b)(i)];
  • the employer for whom they were permitted to work or for whom they were prohibited to work [R185(b)(ii)];
  • the location of the work [R185(b)(iii)];
  • the type of studies or course[R185(c)(i)];
  • the educational institution[R185(c)(ii)];
  • the location of the studies [R185(c)(iii)];
  • the times and periods of the studies [R185(c)(iv)].

Not the easy to miss formatting issue as they did not have a separate heading but put the actual application of the six-month ban as a bullet point (per below).

  • The six-month ban does apply to the issuance of a study permit when the work or study was unauthorized because the applicant did not comply with the following conditions imposed :
  • the times and periods of the work [R185(b)(iv)];
  • in the case of a member of a crew, the period within which they had to join the means of transportation [R185(b)(v)];
  • area within which they were permitted to travel or prohibited from travelling in Canada [R185(d)];
  • times and places at which they must have reported for medical examination, surveillance or treatment, or the presentation of evidence of compliance with applicable conditions related to medical requirements [R185(e)(i) and R185(e)(ii)].

If the “six-month ban” applies on the issuance of a study permit and six months have not elapsed, officers should refuse the application and proceed as follows:

At an overseas visa office

Officers should advise the applicant of the date when the six-month ban ends in order for the applicant to be eligible for a study permit.

If six months have elapsed, or if the applicant has failed to comply with one or more conditions imposed on them, other than the ones leading to a six-month ban, then officers may issue a study permit to the applicant, provided the applicant meets all the requirements for the issuance of a study permit at the time of the application and the applicant is not inadmissible.

At a port of entry

Advise the applicant of the date when the six-month ban is due to end in order for the applicant to be eligible to apply for a study permit.

The applicant may become the subject of a report alleging that they are inadmissible pursuant to section A41.

If six months have elapsed, or if the applicant has failed to comply with one or more conditions imposed on them, other than the ones leading to a six-month ban, then officers may issue a study permit to the applicant, provided the applicant meets all the requirements for the issuance of a study permit at the time of the application.

What will be very interesting to see is how something like the ‘actively pursuing studies’ requirement is assessed with respect to a six-month bar. From my understanding is not cured simply by leaving Canada if re-entry is sought as a student and there were period of the authorized study that occurred during a period the study permit was held in Canada. This raises a question for those individuals who are now ‘activelY-pursuing studies’ (per. R.220.1 IRPR but previously did not). Some further clarification from IRCC will be helpful here.

At an inland office

The lapse of six months would not apply in the case of inland applications because the applicants would first have to get their status restored prior to being issued a study permit.

I understand in circumstances where a study permit holder has stayed beyond their authorized stay and how a student who was not authorized to study and loses status would have to restore themselves to get their status back. However, I am still not convinced we have figured out how this interacts with the ‘actively pursuing studies requirement.’ Someone who is caught still has a valid study permit and would not require restoration but would still need to do a study permit extension if their study permit was approved. Would they be subject to the bar or just refusal/and the possibility of a non-compliance finding? Questions remain. It also seems somewhat inconsistent with the ability to apply the six-month bar to the obtaining of a post-graduate work permit (usually an extension) but not to a study permit extension.

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

Conclusion

I hope you enjoyed this piece. We dove quite deep into the wording of the six-month bar. I expressed some concern over IRCC’s that violation of more than one imposed condition could render the six-month bar active on the basis of their interpretation of ‘a condition.’ I looked at the purported six-month bar for PGWPs and how the non-coverage of ‘actively pursuing studies’ as an exempt category would become increasingly relevant. Finally, I looked at the study permit six-month bar and highlighted how the difference of instruction may be incompatible and again create grey areas around non-enumerated exceptions to the six-month bar.

Exercise Caution When Claiming Dual Intent on Study Permit Applications – International Students

Dual intent is an important and increasing oft-used provision of the Immigration and Refugee Protection Act (“IRPA”) particularly for those applicants who straddle the pathway between temporary and permanent residence. I previously wrote about this concept more than four years ago with respect to a Federal Court case I was involved with called Jewell.

The Law

Section 22(2) of IRPA sets out:

Temporary resident

 (1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b), is not inadmissible and is not the subject of a declaration made under subsection 22.1(1).

Marginal note: Dual intent

(2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.

Is Dual Intention Applicable to Study Permit Applications? Is it Over-relied Upon?

Dual intent seems naturally applicable in the context of a spouse who seeks a visa or temporary entry into Canada while a permanent residence application is in process or a foreign worker seeking to extend a temporary work permit while awaiting an Application for Permanent Residence based on an Express Entry Application or Provincial Nomination Program nomination.

Recently in reviewing study permit applications made by international students, including those prepared by prominent and experienced authorized representatives, I realized that dual intention was being heavily relied on. Indeed, Minister Hussen in several speeches given last year about international students, seemed to suggest that it was no inappropriate for students to enter Canada with an ambition to eventually become permanent residents.

However, in this piece, I want to put a cautionary tale on the application of dual intention when the future intention (permanent residence) is years away and argue that any submissions on study permit applications should focus instead on future immigration compliance and strengthened/remaining ties to the country of citizenship and or permanent residence (if not Canada). I also believe that much of our over-focus on dual intention can also be inadvertently created by our own pathwaying (as representatives) of the permanent residence process.

IRCC’s Program Delivery Instructions on Dual Intention

IRCC has published instructions (as of the date of this post, last modified in March 2019). These instructions are quite detailed and worth a detailed read.

While the instructions set out it is not impermissible to have two intentions (one permanent and one temporary) and that it cannot be a standalone basis for refusal. The section titled ‘Example of a case for refusalsheds important light on the concept, especially in the study permit concept.

The instructions state:

An applicant for a work or study permit who indicates that they have no intention of leaving Canada has demonstrated only a single intent – permanent residence. Their application would be refused, even if the applicant might subsequently qualify for the Canadian experience class (CEC) or the Provincial Nominee Program (PNP). This is because the applicant has shown that they would not respect the terms and conditions of temporary residence, should they not qualify for permanent residence.

Section R179 is balanced by the flexibility of subsection A22(2), which allows the officer to consider an applicant’s intent in relation to the particular circumstances of the application. For example: an applicant for a study permit who may qualify for the CEC in 3 years has a different set of circumstances from that of a provincial nominee whose application is near completion and who applies for a work permit, with the support of the province, due to an urgent need for their services. Please note that all applications should be assessed on their individual merits.

(emphasis added)

The very examples provided by IRCC about when refusing an applicant may be appropriate focus on the international study permit applicant who is not eligible for permanent residency at the time of their application.  Furthermore, these instructions seem to suggest intent (where absent) can be imputed.

Therefore, even if the facts are presented in a balanced way – for example, half the family is in Canada vs. half the family is in the country of citizenship, or with the fact there may be a job opportunity available back home after graduation – there appears to be the needs for clear and explicit language that the Applicant will both be compliant with the terms and conditions of their temporary stay and can and will leave Canada at the end of their authorized stay. I have always interpreted leaving at the end of authorized stay as meaning as required under IRPA (i.e. if an extension is refused) rather than necessarily at the end of one’s study permit. A successful Post-Graduate Work Permit (PGWP) application, for example, would extend one’s authorized stay in Canada.

What Does Case Law Tells Us?

1) What you state and what you do must be aligned for dual intention to properly apply

In Pisarevic v. Canada (Citizenship and Immigration), 2019 FC 188 (CanLII), the Applicant, a lawyer who was applying for a Canadian paralegal program, was unsuccessful in judicially reviewing the refusal of his study permit application.

Arguably (although Madam Justice Simpson found otherwise), even the Applicant’s personal statement in this application sounded very much like a single intent statement:

Madam Justice Simpson writes at para 5:

[5] The Letter included the following statements which, in my view, express dual intent.

  • I have every intention of staying in Canada permanently but only, and I can’t stress this enough, if the Canadian authorities allow me to stay.
  • I have no intention of leaving Canada after graduating but only and for as long as Canada allows me to stay. I plan to do my best to finish school, work hard while I’m in school to maintain myself, apply for the PGWP, find a good job in the legal field and during that time to find a legal way to stay in Canada.

In the refusal the Officer wrote (paragraph 8 of the Decision):

Applicant is 37yrs old, graduate law program in 2010 and has many yrs of experience as lawyer. He now applies to do paralegal training. I note that applicant has four attempts to express entry. While the study program chosen is in same field as applicant’s previous studies and work, it is a step back – not coherent with career development. Given the applicant’s interest in immigration, the study program is meant only to secure entry to CDA and not obtain better employment/promotion in home country. In view of past applications history, study program chosen, I am not satisfied that dual intent exists. I am not satisfied that applicant is interested in returning in country of residence and will have incentives to leave CDA at end of authorized period of stay.

(emphasis added)

Madam Justice Simpson in rendering a bench decision and dismissing the Applicant’s judicial review, highlighted in the record the fact that the Applicant’s proof of finances to support his studies were from the winding down of his legal practice, which itself created a reasonable basis for the Officer to find that there was not an intention to return that could support a dual intention finding.

She writes:

[14]  I am entitled to review the record to make sense of the Officer’s Decision. In my view, although it is not referred to in the reasons, the fact that the Applicant proposed to finance his studies by selling his law office was reasonably treated by the Officer as a powerful determining factor. It gives the impression, in the absence of an explanation to the contrary, that he is winding down his practice and has no professional reason to return to Bosnia and Herzegovina.

(emphasis added)

Ultimately, not only in this case did the Applicant fail to adequately state out a clear temporary intention but the evidence provided suggested as well that the intention was primarily permanent. In the context of an international student, without a clear pathway or application in process – ultimately this represents a high risk approach to the application.

2) Dual intent requires a clear written statement of dual intent

One of the leading cases in this area of the law is Loveridge v. Canada (Citizenship and Immigration), 2011 FC 694 (CanLII) a 2011 decision that highlights my earlier observations that many study permit applications (and specifically letters of intent that I have reviewed) are entirely unclear, and possibly contradictory on the intent of the applicant. Indeed, for many students coming to Canada, the future may be uncertain but a reasonable pathway and understanding does have to be provided.

In Loveridge, the Applicant from the United Kingdom wrote a letter that led to a finding that the Applicant did not have dual intention.

Madam Justice Bédard writes in her decision:

[14]           The applicant contends that it was unreasonable for the officer, in light of the evidence that was presented, to infer on her part an intention to remain permanently in Canada. She insists that her motivation letter indicated, at a minimum, a willingness to return to the UK if required and that, as such, it was unreasonable for the officer to find that she had not established that she would leave Canada if she were required to do so. She argues that, in fact, her motivation letter clearly expressed her dual intent: she would stay in Canada if she had the opportunity to stay but would go back to the UK if required. She contends that she did not need to have a firm intent to go back to her country of origin in order to have a dual intent within the meaning of section 22 of the IRPA.

[15]           The applicant insists that she was credible and that she did not hold back any information in her application. She argues that there was no contradiction in her motivation letter but, on the contrary, that the letter clarified her intentions. She further argues that the officer made an error when concluding that the bank statements did not identify the owner of the accounts since the name NLoveridge appeared on the statements. She further points to the fact that her family and friends are located in the UK as demonstrating her strong ties to that country and her motivation to return there. The applicant also submits that no negative inference should be made from the fact that she and her husband were unemployed and that she did not have ownership of property in the UK. She contends that those circumstances could be viewed as reasons for wanting to migrate to another country, but that they do not support the contention that the applicant would refuse to leave Canada if required to do so.

[16]           The respondent, on the other hand, argues that the applicant’s motivation letter was vague, contradictory, and could not properly be interpreted as supporting a singular intention of returning to the UK. The respondent submits that the applicant had the burden of convincing the officer that she would leave Canada by the end of the period authorized for her stay and that she failed to discharge that burden.

[17]           I agree with the respondent that the applicant’s motivation letter is contradictory and unclear. In the first portion of her letter, the applicant indicates that her intention is to remain permanently in Canada. She speaks of “starting a new life in Canada” and states that she “will be happier in a country where there are more job opportunities”. If her sole intention was to stay in Canada only long enough to complete her studies, as is argued by the applicant, then the additional job opportunities available in Canada would be of no relevance. In the latter portion of the applicant’s letter, however, she indicates that “when” she returns to the UK she will be able to use the education received in Canada as a competitive advantage in her job search.

[18]           The motivation letter, thus, indicates both an intention to stay in Canada as well as an intention to leave Canada and return to the UK. This is different from indicating a “dual intent” within the meaning of subsection 22(2) of the IRPA, because that type of a “dual intent” is actually an intention to remain permanently in Canada, coupled with an intention to abide by immigration laws as required – i.e. a willingness to leave Canada if required to do so. The two intentions involved under subsection 22(2) are complementary, not contradictory.

[19]           Given that the intentions expressed in the applicant’s motivation letter appear to be contradictory, it cannot be said that the officer acted unreasonably in finding that the letter provided little support for the proposition that the applicant would leave Canada by the end of the period authorized for her stay.

[20]           Indeed, the burden was with the applicant to demonstrate that she would leave Canada at the end of her study period. As indicated by Justice Russel Zinn in Wang, above, at para 14, “The Officer is required to assess the evidence presented and weigh that evidence to determine whether it establishes on the balance of probabilities that the applicant will leave Canada at the conclusion of [the] study permit.” 

(emphasis added)

In this case, the Applicant did not interplay her two intentions properly in her letter. It was not a situation where she presented her ability to return primarily. Her letter gave the appear of having two separate intentions (a Plan A and a Plan B) rather than a Plan that considered both. Again, here is where authorized representatives can add value and applicants should think carefully before writing intentions into their study plans.

3) Officers still struggle with dual intention arguments

In Mahida v. Canada (Citizenship and Immigration), 2019 FC 423 (CanLII) , the Applicant’s study permit was refused. Among other mistakes (including the Officer’s failure to properly assess the online MBA she took and a letter from the University), it is clear that the Officer failed to understand dual intent by the following assertion (found at para 30 of the decision):

PA has failed to adequately demonstrate that proposed course of studies is logical or beneficial to their education or professional advancement as she states that she would like to live in Canada yet also intends to work in real estate in India.

Mr. Justice Russell in allowing the judicial review writes:

[31] There is nothing inherently illogical about the Applicant wanting to eventually live in Canada (a goal that she may or may not achieve at some point in the future) and her intent to work in real estate in India until that goal is achieved, and indefinitely if that goal is not achieved.

[32] Consequently, I simply fail to see how this supports the Officer’s conclusion that the Applicant may not leave Canada at the end of her period of authorized stay.

[33] Other reasons are given in the Decision for a negative conclusion but, as the Officer makes clear, he is weighing the incentive to remain in Canada against the Applicant’s ties to India. The errors I have mentioned are extremely material to this weighing process and hence render it unreasonable. The matter must be returned for reconsideration by a different officer.

(emphasis added)

While I think Mr. Justice Russell’s decision is right that the Officer failed to assess dual intention, I am a little confused still by para 33. It seems to be, by IRCC’s guidance, that the very exercise of dual intention is to examine whether the ties to the home country are strong, where there may be an incentives to remain beyond one’s authorized stay, and ultimately whether the Applicant’s stated (or unstated intentions) are credible.

The website states:

In assessing the applicant’s intentions, the individual circumstances of the temporary residence applicant must be examined; refusals of non-bona fide temporary residents may only withstand legal challenge when the refusal is based on the information related to the specific application before an officer.

In assessing an application for temporary residence, an officer should consider, among other factors, the following:

  • the length of time that the client will be spending in Canada
  • means of support
  • obligations and ties to the home country
  • the purpose and the context of the stay
  • the credibility of documents and information submitted
  • past compliance with requirements of the IRPA and the Immigration and Refugee Protection Regulations (IRPR) that are applicable to temporary residents (visitors, students and workers), as well as information available in biographic and biometric information sharing

Assessing an application where there are dual intent implications is no different from assessing any other temporary residence application. Each applicant receives the benefit of a procedurally fair, individual assessment. The applicant must, in turn, satisfy the officer that they meet all the requirements of the IRPA and the IRPR relating to temporary residence, before any temporary residence application is approved.

If an officer has concerns or doubts about the applicant’s intentions, the applicant must be made aware of these concerns and given an opportunity to respond to them. If an application for temporary residence is not approved, the officer will provide the client with a letter explaining why the application has been refused.

To me, I think it is all about the last paragraph of IRCC’s guidance that the ‘applicant must be made aware of concerns and doubts’ and the Officer must give the Applicant an opportunity to respond. This runs directly counter to some of the speculative decisions we see that extend beyond the evidence provided. Ultimately, this creates the whole dilemma between sufficiency of evidence and credibility which will be a topic of a future blog.

However, on this point,  it is worth highlighting Mr. Justice Campbell’s decision in Yaqoob v. Canada (Citizenship and Immigration), 2015 FC 1370 (CanLII). Very similar to many study permit refusals a trite, short summary was provided to a very detailed application which included very extension dual intention submissions that set out the pathway to PR. Here, Mr. Justice Campbell read between the lines that there must have been some credibility concern for which an opportunity to respond was denied. He also awarded costs to the Applicant. I read this decision as a bit of an outlier (where the dual intention submission was entirely ignored it appears). That being said, it would set a good precedent if more decisions would turn the way of Yaqoob. This would force IRCC either to refuse by properly addressing evidence or else cap the number of applicants if that is ultimately the concern, rather than arbitrarily refuse with pro forma refusal reasons and letters.

Nevertheless, this misunderstanding and confusion may be further reason to not create or counsel a ‘dual intention’ where none may currently exist. For example, many international students only learn about permanent residence options through counsel or advisors and do indeed wish to come to study and then decide their plans after. Presenting this single intention does not in any way hurt an international student’s study permit application. Of course, there may be other factors that do require addressing dual intention head on.

4) Dual intent not as effective as a back-end argument on judicial review. Courts still struggle with applying this concept in reviewing decisions.

In several cases I reviewed, it appeared that dual intention was not raised on the initial application but later argued on judicial review as a failed consideration by the Officer.

In these cases, it appears the Courts effectively sidestepped the question by stating that the Applicant’s failed to discharge their burden and/or the Officer took into account reasonable factors.

In Ali v. Canada (Immigration, Refugees and Citizenship), 2018 FC 702 (CanLII),  Madam Justice Strickland acknowledged the submission but stated that ultimately, the Applicant had to first demonstrate that he or she would leave Canada at the end of their authorized stay and that this was not demonstrated.

She writes:

[23] As to the written submissions of the parties as to dual intent, as stated by Justice Gascon in Solopova (at para 30) this Court has confirmed that a person may have the dual intent of immigrating and of abiding by the immigration law respecting temporary entry (Kachmazov v Canada (Citizenship and Immigration), 2009 FC 53 (CanLII) at para 15). The two intentions are complementary, not contradictory (Loveridge v Canada (Citizenship and Immigration), 2011 FC 694 (CanLII) at para 18 (“Loveridge”)). However, the burden lies on the applicant to first demonstrate that he or she will leave at the end of their study period (Loveridge at para 20, Wang v Canada (Citizenship and Immigration), 2009 FC 619 (CanLII) at para 14). In Solopova, as here, this threshold requirement has not been met.

Similarly in Cayanga v. Canada (Citizenship and Immigration), 2017 FC 1046 (CanLII), Mr. Justice Boswell did not delve into the Applicant’s argument that the officer failed to consider dual intention and that all temporary resident visas are premised on the idea that individuals may come to Canada to improve their economic situation (para 9). Nor, was the Respondent’s response that dual intention is permitted but reasonably found not to exist in this matter. Mr. Justice Boswell focused his reasons on the fact that evidence utilized was not extrinsic and that there was nothing unreasonable about the factors considered and applied deference to the officer’s decision.

Mr. Justice Boswell writes:

[13]           It is not unreasonable for a visa officer, as the Officer did in this case, to consider the availability of similar programs offered elsewhere at a lower cost; this is “simply one factor to be considered by a visa officer in assessing an applicant’s motives for applying for a study permit (see Zuo at para 23). Similarly, it is not unreasonable for a visa officer, as the Officer did in this case, to consider other factors such as the Applicant’s family ties in Canada and his country of residence, the purpose of his visit, his employment prospects in the Philippines, and his travel history.

(emphasis added)

5) Cases may be outdated to a time prior to detailed IRCC instructions.

There have been cases where dual intention was argued successfully in the context of international students and study permit applications.  However, I would warn these decisions as possibly being outdated or possibly not even re-occurring on the facts due to other mechanisms available to IRCC.

In Hernandez Bonilla v. Canada (Minister of Citizenship and Immigration), 2007 FC 20 (CanLII), Mr. Justice O’Keefe found that the Applicant (who affirmed through her guardian’s affidavit that she would return to Colombia once her studies were completed) was owed the opportunity to respond to the Officer’s concerns that her formative years would be spent in Canada and that she could not reintegrate into Colombia society and therefore would be unable to leave Canada. Mr. Justice O’Keefe found that this was a generalization that did not take into account the Applicant’s specific facts. Still, again, this decision had the Applicant confirming the intent to return in writing. While dual intention was framed successfully by the Applicant, it was procedural fairness rather than a failure to consider dual intention that won the day.

In Dang v. Canada (Minister of Citizenship and Immigration), 2007 FC 15 (CanLII), another 2007 case, Mr. Justice Kelen found an Officer’s assessment of a study permit extension patently unreasonable – in that it ignored dual intention. The Applicant, Ms. Dang, had a spousal sponsorship refused on bona fides and after an interview focused on that permanent residence application, the Officer refused the study permit extension – citing among other things, a lack of progress in learning English as proof she intended to remain in Canada. Mr. Justice Kelen found that inference patently unreasonable – yet in today’s day in age, with actively pursuing studies requirements and clearer guidelines, arguably an officer would be able to find other grounds to refuse. Dual intention did come handy and I do believe was properly applied in this case.

In light of new instructions and contexts, I am not sure that Madam Justice Heneghan’s decision in Moghaddam v. Canada (Minister of Citizenship and Immigration), 2004 FC 680 (CanLII), would be decided the same way especially now that it is clear dual intention requires looking at the totality of the applications situation including ongoing permanent residence applications. In Moghaddam, Madam Justice Heneghan found that the permanent residence application was not in front of the Officer and therefore was considered extraneous considerations.

Conclusion: Be Cautious Applying Dual Intent to Study Permit Applications

Ultimately, my review of the IRCC instructions and case law suggests that dual intention may not be the most effective argument when an applicant is not yet in the process or position of applying for permanent residency, as most international students would be. Emphasis should instead be placed on future compliance knowledge, individual knowledge of processes, and strong intentions and ability to effect a return at the end of the authorized stay. It is still my position that overemphasizing permanent residence does more harm than good and instead more creative ways to tie those ties to Canada (such as family, past immigration history, of courses) to a future career pathway or the possibility of employment in the country of origin should be explored. Those details should also be clearly stated, in a non-contradictory way.

While dual intention may have some back-end use in judicial review applications, it is also clear that these are usually secondary factors to underlying unreasonable assessments of evidence conducted by reviewing Officers. Proper caution should also be applied when reviewing case law to differentiate recent cases (which have or will have reference to a more robust instruction guide provided by IRCC) as opposed to those from a decade back where dual intention may have been a lesser understood concept. Still, dual intention (where there is not a permanent residence application pending) is a tricky word and evidence play that should ultimately be used very carefully by representatives and applicants alike.

R v. Singh 2019 ABPC 37: The Case DLI’s Should Make Mandatory Reading For Students/Recruiters

R v. Singh 2019 ABPC 37 is an Alberta Provincial Court decision involving an international student Mr. Surinder Singh who appeared at the port of entry in Calgary with a study permit approval letter to pursue a Masters of Chemical Engineering program at the University of Waterloo for which a letter of acceptance was purportedly issued. The problem – the letter was fake. He was not admitted to the University of Waterloo.

Also, the impugned study permit application suggested Mr. Singh had a Bachelors of Engineering from Panjab University and that he was currently a Processing Engineer working at Jagdambay Manufacturing Company. In actuality, he had only completed grade 12 and was working at McDonalds at the time of the application – as he later testified.

Analysis

This case is fascinating for several reasons.

First, it highlights the type of fraudulent schemes that are growing all to common around international study permits. While it is India in this context, the similar pattern of coaching from unlicensed consultants and local liaisons occurs throughout different communities around the world and in Canada. It highlights challenges with no oversight with the letter of acceptance process and how hard it is to detect fraudulent documents in today’s day and age. You see an established process unfold by which Mr. Singh enters Canada and then is coached on how to continue his stay here under different grounds (schools) than those by which he entered. It is also notable that this event took place in 2014 – with the trial and conviction happening some 4.5 years after the events in question took place and almost 3 years after the initial CBSA investigation began. These type of cases and situation simmer for years before being subject to public knowledge

Second, Mr. Singh’s situation represents a step up in terms of prosecuting the actual international student for criminal misrepresentation as opposed to the usual process of simply finding them inadmissible and giving them a five-year bar. No doubt, somewhere down the line, there would have been some consideration as to whether to simply pursue this as an inadmissibility matter but instead significant legal and departmental resources were placed in this case.

The Finding of the Consultancy Agency and the Network Involved

Many of us find it preposterous that individuals would engage with unauthorized practitioners but this case highlights how powerful word of mouth can be. Mr. Singh’s brother heard a friend from an adjoining village had he had recently landed in Canada as a successful immigrant. Mr. Singh and his mother went to the village where they understood the boy’s family lived, went to a shop owner – who then directed them to the family who directed them to the consultant Vicky  (paras 14-17 of the Decision). Again, this sounds very centuries ago in description but is the reality of small town life and demonstrates the desire by which some individuals often wish to leave their current situations.

The initial payment in this case was equivalent to 500,000 Rupees (CDN $10,000) which would be an incredulous amount to charge for any individual permit but again, considered so normal in the context of this case. So was the 25 lakh total price and the addition CDN $40,000 he owed after approval.

The other thing that is very common is the extended informal network of Canadian/international contacts that benefit and participate from these types of operations. The Consultant Vicky sends Mr. Singh to a “Gurjant” guy in Toronto (a purported friend) who ends up advising on education strategy (para 82 of the Decision). Vicky’s mother also assisted in the operation from India (para 51-53 of the Decision).

Judicial Knowledge of Immigration Processes Increasing

In the past where I have looked at non-immigration decisions at various courts and tribunals, I have often noticed language that makes it clear the Court was slightly uncomfortable with the immigration context. In this case, it appears that particularly Crown’s framing of the situation was done very effectively.

Crown put together this summary that looks like it was directly transposed (and or paraphrased) into the decision at para 7 of the decision:

[7]               The following is an outline of the student visa and study permit process.  I am indebted to the Crown for providing this summary in her written submissions.  I accept it as accurate based on the testimony I have heard and accepted and my review of the relevant legislation.  I have attached as an Appendix to these Reasons, all relevant sections of the Immigration and Refugee Protection Act, SC 2001, c 27 and the Immigration and Refugee Protection Regulations, SOR/2002-227

•        A foreign national from India who wishes to study in Canada must first obtain both a student visa and a study permit.

•        The foreign national must successfully apply for the study permit before entering Canada and studying in Canada.

•        The foreign national must also apply for the visa, or any other document required, before entering Canada.

•        By law, a study permit will not be issued to a foreign national unless they have written documentation from the educational institution at which they intend to study that states they have been accepted there.

•        A study permit will not be issued to a foreign national unless they demonstrate they have sufficient financial resources for the proposed study period.

•        Canadian visa officers review applications for study permits from foreign nationals.  If an officer is satisfied an applicant meets the criteria for a study permit, the officer may issue a student visa to the foreign national, which is placed in the foreign national’s passport before they come to Canada.

•        Once the foreign national has received their student visa outside Canada, they may present themselves at the Canadian border.  At the border, the foreign national makes an application to enter Canada and to obtain their study permit.  In other words, the student visa is issued outside Canada and the study permits is issued at the Canadian border.

•        Every person seeking to enter Canada must appear for an examination to determine whether that person has a right to enter Canada, or is or may become authorized to enter Canada.

•        When a foreign national presents himself or herself at the border seeking a study permit, the Canada Border Services Agency officer must satisfy themselves that the foreign national meets all the criteria for the student class (the criteria that would originally have been assessed to determine that a student visa could be issued to the foreign national).

•        Every foreign national entering Canada must establish that they hold the visa or other document required under the legislation and will leave Canada by the end of the period authorized for their stay.

•        Foreign nationals are inadmissible to Canada for misrepresenting or withholding material facts relating to relevant matters that induce or could induce an error in the administration of the Act.  [Footnotes omitted]

Even though we dealing with very particular regimes within immigration, it appears that knowledge around immigration is becoming more widespread. It is important that defense counsel similarly work closely with immigration lawyers when working on cases with an immigration component to ensure they match the resources Crown can often bring with their access to intergovernmental resources and knowledge.

Common Areas of Consultant Fraud

In this decision you get the ‘Rolls Royce’ of ways consultants advise their clients on study permit applications:

  1. Non-disclosure of representative – In this case, in the study permit questionnaire [page 5 – of the document which at the time may (or may not) have looked like this] was declared N/A. It is common for unauthorized consultants to ‘ghost’ a file in that they assist and prepare it without their name or address ever showing up on the file.
  2. Misleading address – A Canadian address was indicated for Calgary on the fraudulent letter of acceptance;
  3. Creating fraudulent documents/letter of acceptance – The fraudulent acceptance letter contained a student number that did not follow standards. We have seen similar issues with fraudulent photos and copy and paste graduation certificates;
  4. Lack of procedural transparency/expertise –  Mr. Singh wanted a work permit and indicated that he believed he would have trouble with the IELTS. He never knew he was going to the University of Waterloo (para 62)
  5. Submitting fraudulent documents to IRCC -Mr. Singh submitted a fraudulent IELTS exams and fraudulent bank statement;
  6. False promises – Even after the consultant Vicky indicated Mr. Singh was ineligible for a work permit, she recommended a study route to learn English (“ESL”) and then ‘get work permit’ (para 59). He then mentioned that ESL was part of the pathway to permanent residence and citizenship (para 60).
  7. Advising  on questionable travel plans – Mr. Singh was advised to fly to Calgary first (where the mailing address was purportedly indicated to be Calgary) to meet with Vicky.
  8. Getting rid of evidence – Vicky asked Mr. Singh for his password to his email account and started deleting emails.
  9. Undisclosed fee splits to third parties – while not directly stated, it is reasonable to assume that Gurjant was a benefactor – either through Vicky’s direct fee payment and/or through the schools he recommended Mr. Singh to attend;
  10. Asking a client to sign without reading – paragraph 92 is an all too common scenario and thread through common refusals.

Flag on File – Tracking Down Subject of Investigation

Many of us have seen IRCC’s efforts to track entries and exits. In this case, at paras 35-36, we see how this can work in practice in the summary of CBSA investigator Jolene Northfield. Having had difficult tracking Mr. Singh in July 2016, he came to CBSA’s attention 2017 thanks to a flag at the Windsor border. Mr. Singh’s Calgary address was obtained and supported the arrest warrant.

Wilful Blindness

Before I go into wilful blindness, there are a few things worth pointing to in the preceding section of the decision titled “credibility.

Judge Skene impugns Mr. Singh’s credibility with a couple lines including  the following:

[139]      I accept that Singh did not fully read his Application, including his supporting documentation, for a student visa and a study permit, although it would have been hard to miss the statements in English directly above each of his signatures.  I find this was an intentional act on his part.  He had no intention of reading it. 

[141]      He signed under the statement “I declare that I have answered all questions in this application fully and truthfully.”  Did he read that declaration?  I am uncertain.  As stated, it is hard to miss.  If he did, he made a material misrepresentation on his Application.  If he did not read what he was signing, in this part of his Application, or any of the other signature lines, that act and those acts were intentional – a deliberate choice.  

I cannot walk into the shoes of the defense counsel in this case in terms of whether they should have pursued a different strategy – one involving preparing Mr. Singh in order to have him understand the mistakes he made and how he had been led into making these various mistakes. It is clear that the lack of sympathy the judge had towards Mr. Singh’s position of blaming the consultant and blaming the visa office for processing his visa did not win over sympathy or create reasonable doubt.

I do feel sympathetic for the manner in which Mr. Singh assumed the ghost consultants who represented him knew what they were doing were licensed. The process of figuring out is licensed is not easy, word of mouth referrals often accepted without background checks, and representatives (including the ghost consultants here) do not often do a good job of telling clients what it is they are actually signing and/or to review carefully materials before signing. Students, especially those eager to leave their situations for Canada at a younger age, have the tendency to be impatient.

For me this is a classic case of s.40 IRPA misrepresentation but to convict him also of the criminal provision s.128 IRPA seems heavy handed.

That being said, the wilful blindness sections of the decision from paragraphs 147 – 161 are an important read. It highlights the vulnerability students face but that those factors of vulnerability (lack of knowledge, dissociation, willingness to follow instructions) can be the very foundation of fraud and contribute to their own roles of perpetrators. Clients (and for students, especially their families) should be asking many questions along the way of those who purport to help them and pose difficult questions. Obeying or Acquiescing to instructions without any active efforts to challenge or clarify those instructions can lead to a judge impugning motives, intent, and wilful blindness. There is also a major benefit to documenting questions to your representatives or to those assisting you by email to clearly demonstrate your actions through your own paper trail.

Exposing a Major Policy Gap – Ease By Which Study Permits Allow Students to Change Institutions

In paragraph 106 of the decision, a major policy gap in Canada’s international study permit is exposed and pointed to by Mr. Singh to the Court. In his testimony Mr. Singh states:

“Vicky consultant told me you are coming here on study permit, you can go anywhere to study.”

Currently, there are no rules, regulations, or policy directives which limit or dissuade students from switching universities. In fact, many schools (especially privates) have continued to operate under a seat sale process where the offering of more letters of acceptance increases the chance of converting an enrollment. Indeed, one of the reason more letters of acceptance need to be issued is with the understanding that students are likely obtaining other letters of acceptance which they may (or may not) accept.

On the flipside, many students are being coached (as it appears Mr. Singh was here) that once you obtain one letter of acceptance a student is free to ‘change their institutions.’ In other cases, after a student enters Canada on a study permit they have been advised that they are able to switch to a work permit quite easily. While they attend classes, a consultant is busy securing them a labour market impact assessment. Not only is this application difficult (for someone who has limited work experience and is still a student), but the positions that the work is organized for almost never actually assists a student in obtaining permanent residence. Most are low-skilled food service/hospitality positions that have the actual effect of culling any academic progress the student may have wanted (or ultimately needed) to pursue.

IRCC needs to step in by creating some sort of compliance process before a student is automatically allowed to switch programs. While I understand the flexibility of issuing study permits that are not tied directly to a college or university, I do believe there needs to be more than an administrative ‘update’ to IRCC after the change and that changing primary institutions (with exceptions for cases where students cannot register because a program is full, for example, or unable to offer their required courses) should be an exceptional circumstance. Furthermore, I am a big proponent of centralizing Letters of Acceptance for international students so that they have some sort of unique identifier and cannot be simply recreated and copied.

There may be some benefit to looking into the Australia model on this particular point and their rules around this.

Anti-Fraud Initiatives

IRCC has since the decision was rendered in February 2019, introduced a new campaign in India to try and curb the use of unregulated consultants.

Unfortunately, heartbreaking stories of immigration fraud too numerous to document in one short blog post. The takeaway from Singh is that there’s not too much stopping the pursuit of the students for whom fraudulent study permit applications may be submitted for as a manner of future deterrence.

Take Away

Schools – private, public, PGWP eligible or not – need to take a hard and deep look at their practices in engaging agents. Regardless of who they have a contract with (could be someone like Gurjant), students are contacting friends and family for word of mouth advice. The process isn’t always clear and that is where schools (and their advisors) ultimately have an important role to play providing basic straight forward instructions so that student have somewhere other than their neighbourhood agent to get advice from.

I think IRCC can also take major steps to make their website much more intuitive and use click down menus to better organize the content. I have been reviewing website content in light of a talk and as someone who spends way too much time on the internet and searching for information, IRCC’s website is not among the best organized. Again, Australia has a lot to offer us in this regards.

I will be presenting this case (along with several other immigration-related cases on the 30th at a session I am facilitating called Taking Stock of International Student Regulations in Canada on July 30th and August 20th. I look forward to seeing everyone there.