Tag Archives: actively pursuing studies

Why I disagree with CBSA’s approach actioning s.40 IRPA misrepresentation as s.29(2) IRPA failure to comply for not actively pursuing studies

I have seen a worrying trend of clients show up with the following fact scenario.

“X went to U.S. for a day trip. X is referred to secondary at the Port of Entry (“POE”) after attempting to enter on a study permit. There is a misrepresentation or misrepresented statements uncovered. Canada Border Services Agency (“CBSA”) decides rather than to defer examination or refer to inland for investigation that they will issue a removal order on the spot, seizes the study permit and passport, and asks for a plane ticket showing departure within X days.”

A foreign national (e.g. study permit holder) is required to show that they are not inadmissible in order to gain entry into Canada. The burden is on them as the entry-seeker to prove this. The benefit for CBSA of issuing a specified removal order (on their own volition and through their own determination processes) instead of pursuing misrepresentation (which requires a referral to Immigration Division and a hearing (on the facts) to make such an order). This distinction is found in R.228 and R. 229 of the Immigration and Refugee Protections Regulations (IRPR). I have highlighted in blue the relevant subsections.

DIVISION 2 Specified Removal Order

Subsection 44(2) of the Act — foreign nationals
  •  (1) For the purposes of subsection 44(2) of the Act, and subject to subsections (3) and (4), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be

    • (a) if the foreign national is inadmissible under paragraph 36(1)(a) or (2)(a) of the Act on grounds of serious criminality or criminality, a deportation order;

    • (b) if the foreign national is inadmissible under paragraph 40(1)(c) of the Act on grounds of misrepresentation, a deportation order;

    • (b.1) if the foreign national is inadmissible under subsection 40.1(1) of the Act on grounds of the cessation of refugee protection, a departure order;

    • (c) if the foreign national is inadmissible under section 41 of the Act on grounds of

      • (i) failing to appear for further examination or an admissibility hearing under Part 1 of the Act, an exclusion order,

      • (ii) failing to obtain the authorization of an officer required by subsection 52(1) of the Act, a deportation order,

      • (iii) failing to establish that they hold the visa or other document as required under section 20 of the Act, an exclusion order,

      • (iv) failing to leave Canada by the end of the period authorized for their stay as required by subsection 29(2) of the Act, an exclusion order,

      • (v) failing to comply with subsection 29(2) of the Act as a result of non-compliance with any condition set out in section 184 or subsection 220.1(1), an exclusion order, or

      • (vi) failing to comply with the requirement under subsection 20(1.1) of the Act to not seek to enter or remain in Canada as a temporary resident while being the subject of a declaration made under subsection 22.1(1) of the Act, an exclusion order;

    • (d) subject to paragraph (e), if the foreign national is inadmissible under section 42 of the Act on grounds of an inadmissible family member, the same removal order as was made in respect of the inadmissible family member; and

    • )e) if the foreign national is inadmissible on grounds of an inadmissible family member in accordance with paragraph 42(2)(a) of the Act, a deportation order.

  • Paragraph 45(d) of the Act — applicable removal order
    •  (1) For the purposes of paragraph 45(d) of the Act, the applicable removal order to be made by the Immigration Division against a person is

      • (a) a deportation order, if they are inadmissible under subsection 34(1) of the Act on security grounds;

      • (b) a deportation order, if they are inadmissible under subsection 35(1) of the Act on grounds of violating human or international rights;

      • (c) a deportation order, in the case of a permanent resident inadmissible under subsection 36(1) of the Act on grounds of serious criminality or a foreign national inadmissible under paragraph 36(1)(b) or (c) of the Act on grounds of serious criminality;

      • (d) a deportation order, if they are inadmissible under paragraph 36(2)(b), (c) or (d) of the Act on grounds of criminality;

      • (e) a deportation order, if they are inadmissible under subsection 37(1) of the Act on grounds of organized criminality;

      • (f) an exclusion order, if they are inadmissible under subsection 38(1) of the Act on health grounds, unless subsection (2) or (3) applies;

      • (g) an exclusion order, if they are inadmissible under section 39 of the Act for financial reasons, unless subsection (2) or (3) applies;

      • (h) an exclusion order, if they are inadmissible under paragraph 40(1)(a) or (b) of the Act for misrepresentation, unless subsection (3) applies;

      • (i) a deportation order, if they are inadmissible under paragraph 40(1)(d) of the Act for misrepresentation;

      • (j) an exclusion order, if they are inadmissible under paragraph 41(a) of the Act for failing to comply with the requirement to appear for examination, unless subsection (2) or (3) applies;

      • (k) a departure order, if they are inadmissible under paragraph 41(b) of the Act;

      • (l) an exclusion order, if they are inadmissible under paragraph 41(a) of the Act for failing to establish that they have come to Canada in order to establish permanent residence, unless subsection (3) applies;

      • (m) an exclusion order, if they are inadmissible under paragraph 41(a) of the Act for failing to establish that they will leave Canada by the end of the period authorized for their stay, unless subsection (2) applies; and

      • (n) an exclusion order, if they are inadmissible under paragraph 41(a) of the Act for any other failure to comply with the Act, unless subsection (2) or (3) applies.

There are also some cases where CBSA officers are pursuing a s.29(2) inadmissibility  in order to do a bit of a favour for the international student – where they may be victimized by the rampant fraud in the international student market right now or made an honest mistake. While this is commendable, I think the inconsistency under law does pose a risk where individuals with less egregious violations are seeing five-year bans on entry.

However, some of the duration and gaps that the actively-pursuing studies requirement (R.220.1 IRPR) has been applied to (such as one month or a winter break as I have seen in a couple cases now).

I have always said this, but I think the penalty for international students not studying (possibly throwing away their PGWP eligibility) should introduce at least a little leniency into the issue with study gaps (which invariably arise during the course of one’s studies – especially where the person may also be studying while awaiting processing on a PR application or with a boyfriend and girlfriend who is a Canadian citizen or PR).I have also seen in more than a few cases now that the exceptions under R.220.1(3) IRPR have not been adequately canvassed in the brief examinations that are leading to these decisions.

I somewhat hesitate to say this (as I know CBSA does allow some individuals to do this in order to avoid the more serious penalty), but they should be pursuing the misrepresentation as is rather than the not actively-pursuing studies violation. Should there be factors down the road that support it, there could also be the pursuing of the s.29(2) IRPA at a later time or the allowing of the individual to withdraw their entry/cancellation of their visa. However, misrepresentation – particular in the student context is too important of a matter that must be pursued.

Furthermore, having border officer’s remove international students without adequate time investigating their personal situations and even contacting the Designated-Learning Institution (“DLI”) or properly setting out the record makes for the possibility of decisions that are not grounded in fact nor law. There are many considerations, from the aforementioned exception clauses, to DLI’s own policies, to even whether the person was in Canada or overseas during the impugned period.

I ultimately think that the assessment processes for “not-actively pursuing studies” is more akin to an s.41(a) IRPA contravention such as work or study without authorization. I appreciate the legislative intention on allowing Officer’s to remove students not actively-pursuing studies but I think right now it has already gone too far and inconsistent with the original parliamentary intention.

The alternative is for the government to introduce a procedural fairness regime, such as the one it had initially contemplated, that requires CBSA to defer examination and/or refer the matter to IRCC for further action. Another possibility is for IRCC to amend (through interpretation and instruction), R. 222 so that this provisions applies to students who have left school (but stayed in Canada) in the middle of their program . Furthermore, individuals with Canadian spouses and common-law partners (not covered under the exceptions under R. 220.1 and R.222) should be covered for consistency.

I said it before and I will say it again – 2018 will be another year where international students will really have to take proactive (not such reactive) efforts to ensure they know the conditions of their study permit and are being smart about traveling outside of Canada during their studies and engaging in activities (such as work) while being a student.

I am hopeful IRCC will publish some clear program delivery instructions so that schools and students will be on the same page, without unscrupulous agents or incompetent and unlicensed advisors incorrectly coaching the student to their removal from Canada.

 

‘Actively Pursuing Studies’ – Possible Port of Entry Issues

As I mentioned in a post written in September 2015, the requirement that a study permit holder “actively pursue studies” in Canada while holding their study permit creates major challenges.

When I first wrote my post in 2015, I imagined that exclusion orders issued pursuant to Immigration and Refugee Protections Act s.29(2) + s.41(a) would occur mostly in the context of in-land investigations. I imagined these would be situations where Designated Learning Institutions (“DLIs”) when required to update CIC (now “IRCC”) via the student compliance portal would trigger Canada Border Services Agency (“CBSA”) to investigate. Other than that I thought that international students would otherwise be brought to the attention of CBSA by external means (i.e. police-reporting, working without authorizations, etc.), where studying without authorization would be an add-on to existing concerns.

My understanding now is that with IRCC’s International Student Program (“ISP”) student compliance delivery instructions still pending final publication for sometime later this year, the main trigger of these investigations are actually reports to CBSA or initiated by CBSA themselves.

It may come to a surprise to some individuals, but CBSA often is not provided instruction on how to interpret IRCC rule/policy changes, but rather, like myself as a practitioner or a client, have to react to them by developing their own positions. These positions, as admitted by CBSA,  are not always perfect and often can lead to inconsistent application. That turns into the legal grey area that often gets clients in trouble.

Yesterday, I attended a talk where CBSA program directors talked about the recent Port of Entry issues they have noticed. This talks reconfirmed (my fear) that the ‘actively-pursuing studies’ requirement has been interpreted by CBSA quite broadly and that this requirement has created challenges for international students.  I had been hearing similar issues from in the international student community, but this talk reaffirmed them.

Travelling during “Regular School Term”

When a student is ‘actively-pursuing studies’ they are expected to be in class when there is class. Full stop.  Inevitably, trips taken during class will happen. Things happen back in the home country, emergency trips to see loved ones, health and financial issues, or even the occasional mid-term getaway.  We could all use the occasional break, right?

Well, the challenge is, that without program delivery instructions set by IRCC as to how discretion is to be exercised, there is a huge risk to an individual who leaves Canada during the regularly scheduled school term and tries to gain re-entry into Canada.

As a colleague of mine correctly pointed out, there are also challenges with the way the legislation is being interpreted right now in sense that a plain-letter interpretation of the law suggests that the law does not apply while an individual is abroad with a study permit. However, I now understand that the study permit holder does not need to be in Canada and not studying but arguably can be in their home country and holding a study permit, not studying and still fall into the requirement to actively-pursue studies.

Conditions — study permit holder

220.1 (1) The holder of a study permit in Canada is subject to the following conditions:

  • (a) they shall enroll at a designated learning institution and remain enrolled at a designated learning institution until they complete their studies; and
  • (b) they shall actively pursue their course or program of study.

CBSA’s recommendation, and one I would fully adopt for students is that they need to bring with them adequate documentation when they leave Canada in the middle of the school term. I would go a step further and suggest that this is true ot just a student’s own school term – which may or may not correlate to when a majority of students are expected to be in school.

One of the examples that CBSA provided of a “possible flag”, was an international student attempting to arrive in Canada mid-way through September. This is of course, premised on the fact that the designated-learning institution operates on a Fall/Winter semester school year. In fact many DLIs go according to different schedules, particularly those that offer continuous courses over summer but provide options for students to take authorized breaks.

Proving your Breaks

Students would be wise to have (among other relevant documentation):

  • a school calendar;
  • school policies relating to educational breaks/gaps;
  • a letter of permission from the school authorizing the late return/trip abroad; amd
  • proof that the student performed the activity/task that they were authorized to miss school for.

They should also be prepared to answer questions in secondary examination, if referred. Particularly, where a student’s first language is not English, the international student should know how to ask for interpreter and/or answer basic questions about there whereabouts and activities while abroad. Answers provided incorrectly or, worse yet, with misleading intentions may result in further immigration consequences such as misrepresentation.

Students would also be wise to ensure they are compliant with other customs policies. Often times another violation, i.e. failing to declare goods upon entry, will trigger a referral to secondary which will itself trigger a non-compliance with study permit conditions finding.

Consequences of Exclusion

As alluded to earlier, a student, if upon examination is determined not to be a student who is ‘actively pursuing studies’ could be issued an exclusion order on the spot and removed from Canada. Anecdotally, I have heard individuals who have been removed the day of their attempted entry and asked to buy a ticket to board a plane home.

From a procedural fairness perspective, it is my hope that CBSA adopts a policy that will require them to continue the investigation inland. I say this because my understanding of procedural fairness requires that an applicant is provided a meaningful opportunity to respond.

Without a full investigation of the school’s policies, of attendance records, and giving the student a chance to defend themselves in the event a designated learning institution says otherwise, I don’t think the opportunity to respond can be provided. A few hour examination is simply not enough.

Conclusion

Until IRCC comes up with clear policies communicated with CBSA Border Services Officers that apply the law,  travelling during school time without a valid reason and valid evidence is in my perspective, playing Russian roulette .