study permit refusal

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Dear IRCC: Requesting Uploaded Non-Refundable Plane Tickets for Refused Extension Applications Is Not The Way To Go

I apologize folks. I’m in the middle of a transition (starting my own Firm in February – more details about this later). I’ve also engaged an entire revamp of this blog, which will be releasing as well. I’m supposed to be on hiatus. However, something shared by one of my colleagues has had me spring into action. IRCC: this move is wrong, not procedurally fair, and has disasterous consequences for access to justice.

What am I talking about? Check out the screen shot below.

Dear IRCC:

While it is clear the Government has been pushing to make the restoration process more difficult (trying to limit it to only statuses previously held), it behooves procedural fairness that rather than informing applicants of their statutory option to pursue restoration within 90 days they are telling applicants to leave and provide proof that they are leaving.

There is also no transparency on how to challenge a decision like this. What if an individually legitimately was refused due to missing documentation or a technical issue and has a strong argument for restoration? Do they apply for restoration? What happens if they ignore this request to upload proof. Does CBSA show up before they are able to confirm their restoration has been approved? [The fact we are removing individuals during a pandemic is another bone – but I’ll pick it some other time].

I would argue that this has the most immediate and harmful impacts on those who are unrepresented. As counsel, at least I can seek clarification and know how to navigate restoration to immediately submit an application and perhaps inform IRCC. A self-represented applicant, with no public facing knowledge of the process having provided by IRCC, will not know what to do. I fear that for the international students who I’ve seen this sent to, this can lead to harmful decisions. I’ve been in too many cases where international students were afraid to tell their parents, going so far as trying to leave to a third country to avoid letting their major educational funder parents know.

Importantly, this action breaches procedural fairness. Indeed, I think the Government needs to be enjoined from prematurely requesting something and shielding the fact an alternative remedy is not on available but statutorily provided. This type of action utilizes policy to try and shield the protections provided by law and is inconsistent with the rule of law and due process.

I call on the Government to stop issuing these letters to applicants who receive temporary resident extension refusals and in fact all refusal letters. Go back to informing these individuals that they have the ability to apply for restoration within 90 days. Suspend removals, especially now that there are programs being rolled out to help restore those who have lost status and given them an extended time to do so. This type of letter contracts the generosity through policy that has been provided (see: here).

In the interim, we need transparency:

  1. Who is this being sent to?
  2. Is it just for citizens of certain countries?
  3. Why is it not being limited to cases where individuals are truly out of status without access to restoration?
  4. Where are the public instructions on how to respond to something like this?

Sincerely.

Will

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

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

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

371 2,174 2,545 53%

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

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

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

Screen Shot 2018-09-09 at 10.04.58 AM

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

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

Screen Shot 2018-09-08 at 11.23.34 PM

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

Screen Shot 2018-09-08 at 11.22.59 PM

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

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

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

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

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

Screen Shot 2018-09-09 at 10.05.11 AM

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

Powers of Federal Court

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

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

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

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

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

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

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

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

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Will Tao is an Award-Winning Canadian Immigration and Refugee Lawyer, Writer, and Policy Advisor based in Vancouver. Vancouver Immigration Blog is a public legal resource and social commentary.

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