Tag Archives: Dual Intention

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.

Dual Intention: FC in Jewell Reinforces That it is More than a Buzzword

Dual Intent

Introduction

As many of you might know, our Firm recently won an important Federal Court case relating to dual intent, a much maligned but rarely addressed legal concept in our Immigration and Refugee Protection Act (“IRPA”).

I want to discuss a few of the principles of the case, but equally important walk through some of the lessons I learned through this case, my first start-to-finish Judicial Review as an Articling Student.

Dual Intention Is Not Dead

Prior to this case, I remember quite clearly several discussions between lawyers on the Canada Bar Association’s Canadian Immigration Email Listserv, asking the question:

Is Dual Intention Dead?

I think Justice O’Reilly, who it is to be noted has allowed judicial review in quite a few of the recent cases he has heard, came out with an emphatic “no” in his recently released decision in Jewell v. Canada (Minister of Public Safety and Emergency Preparedness) 2015 FC 1046. 

To recap, Mr. Jewell was an American-Citizen who had a Canadian-born girlfriend. There were text messages on his phone that were recovered by CBSA Officer through a cellphone search that made the Officer believe Mr. Jewell had established permanent residency in Canada without having obtained permanent resident status purportedly contrary to s.20(1)(a) of IRPA. The Officer and Minister’s Delegate, in their interviews of Mr. Jewell, looked at his pattern of travel over a two week period, and determined that it was consistent with a Canadian permanent resident, commuting to the U.S. for work, resetting his temporary status through his frequent trips. The terminology they used (although not specifically cited in the decision) was that Mr. Jewell was “abusing the privilege of his six-month visitor visa exemption.”

As soon as the case came through the door, something smelled fishy to me. How can any an officer determine over a two week period whether someone had established permanent residence? Why was the physical residence in Canada a trigger point? Aren’t there arguably many temporary residents in Canada (students, workers, visitors alike) who live in Canada and have houses here. We early on isolated, dual intent as the battleground in this case.

From a litigation standpoint, one of the more interesting parts of this case came, after leave was granted, when we learned that a recent dual intent case had been dismissed by the Federal Court in Barua v Canada (Minister of Public Safety and Emergency Preparedness), 2015 FC 172. In Barua, the Federal Court completely dismissed the applicant’s dual intent argument concluding that Mr. Barua had several attempts to establish his dual intent and simply did not not demonstrate that he would leave when required. I remember when preparing our further memorandum that there would be no way Barua would not be cited by DOJ (Minister’s counsel) and made the conscious decision that we would approach and address that case preemptively.

However, an the case carefully I realized there were several factual nuances. Mr. Barua had previously arrived in Canada under false pretenses of having a work permit, but no real job opportunity at the time. He also was counselled several times to apply for permanent residency and ultimately told Officer’s he could not leave and would not leave Canada.

What initially was going to be a dagger blow, turned out to be a blessing in disguise. We were able to clearly draw a line in the sand between the cases DOJ were relying on – all individuals who had long-term patterns, non-compliance, and multiple opportunities to establish their dual intention and Mr. Jewell, who really was not offered even one opportunity to state his dual intention or have his dual intention adequately assessed.

Justice O’Reilly’s decision in our case is a short one. In fact, he managed to summarize in four paragraphs what 20 pages of our Final Memorandum emphasized. I wanted to present those four key paragraphs, as they are quite important to my assessment of the implications of this case:

III.             Was the delegate’s decision unreasonable?

[11]           The Minister submits that the exclusion order was reasonable because Mr Jewella dmitted his intention to reside in Canada permanently. Further, Mr Jewell was behaving as a permanent resident of Canada by commuting from BC to Washington.

[12]           I disagree with the Minister’s position. In my view, the delegate failed to assess Mr. Jewell’s dual intention to be a temporary resident at present, and to become a permanent resident later.

[13]           IRPA provides that foreign nationals may hold the intention to become permanent residents without being precluded from becoming temporary residents if they show they will leave Canada at the end of their authorized period of residence (s 22(2)). If they cannot do so, an exclusion order will be considered reasonable (Barua v Canada (Minister of Public Safety and Emergency Preparedness), 2015 FC 172 at para 22; Sibomana v Canada (Minister of Citizenship and Immigration), 2012 FC 853 at paras 27-28).

[14]           The evidence before the delegate did not show that Mr Jewell intended to become a permanent resident of Canada without abiding by the applicable rules. At best, the evidence was ambiguous. Further, there is no evidence that Mr Jewell would refuse to leave Canada, or that he would fail to observe any other legal requirements.

[15]           Therefore, in my view, the delegate’s decision did not represent a defensible outcome based on the facts and the law. It was unreasonable.

Implications

While arguably that this case is too fact dependent and the reasoning too short to be considered a strong precedent, I think Jewell does bear some weight for future temporary residents trying to come to Canada with an eye to permanent residency.

From having looked at the case law, Jewell is one of the first decisions that really tackles this issues for an individual who does not yet have an application in processing. Prior to Jewell dual intention was commonly considered only available for those who had access to a readily available permanent residence option or more often had a sponsorship application in process and wanted a Temporary Resident Visa to visit in the interim.

With Jewell, I can see more challenges to cases where evidence such as cellphone records or bag searches turn up evidence which suggests lives are being packed in preparation for immigration. The case suggests it is not enough to simply look at private text messages between couples saying “I am moving to Canada” or look at whether an individual is shipping his household furniture to Canada.

Jewell suggests that at the very least a dual intention analysis needs to be carried out by the Officer. I would assume that such a process should be done pursuant to CIC’s explicit instructions on the issue. Importantly, as stated in the instructions:

Officers are reminded to use their own judgment and the flexibility afforded to them by A22(2) when making decisions in cases with a dual intent aspect. CAIPS/FOSS/GCMS notes should clearly demonstrate the officer’s reasoning when assessing a case.

In Mr. Jewell’s case, while there  may have been some assessment of where he lived and what he had been texting to his girlfriend, there was ultimately no assessment of dual intention or if Jewell would leave Canada and abide by the rules and regulations.

Possible Mitigation Strategy

I do not see “dual intention” being a magic incantation that an individual can simply recite at the Port of Entry. An individual who’s travel history clearly demonstrates that they have no intention and/or means to establish legal permanent resident status but are still trying to come in as long-term repeat temporary residents (i.e. through frequent flagpoles) will increase their risk of having their dual intention requests denied.

On this note, obtaining a visitor record may assist in establishing dual intention and facilitating entry (particularly for cross-border couples).