#internationalstudent

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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