Tag Archives: Study Permits

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.

Summer ’18 – Study Permit and International Student Law Federal Court Case Law Summary

Global_Education

By Desmond1234 – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=46866616

As Canadian students ease their way back into studies and as school staff and administrators start thinking about the million responsibilities that come with a new cohort of international students, I thought it would be useful to review Federal Court Case Law over the past few months and uncover a few points.

I will focus on four points.

[1] PGWP regime not unconstitutionally vague, does not trigger s.7, and refusing a graduate from a private institution that was  not eligible under guidelines, not unreasonable. Brown v. Canada (Citizenship and Immigration)  2018 FC 452 [link to decision] – Manson J. presiding.

Jeremiah Eastman (a former DOJ lawyer for over 11 years)  appeared to make a valiant effort attacking the PGWP regime from all sides, but Manson J upheld the reasonableness of the decision and constitutionality of the PGWP regime. It is important to note that IRCC has now proactively addressed the issue at the heart of this matter by adding a list that sets out whether the DLI is PGWP-eligible and/or if certain programs offered are eligible.

[2] In the context of the requirement of  “actively-pursuing studies,” it is often parallel proceedings that will trigger investigation. CBSA Officers found to have broad discretion by Courts.  – Kone v. Canada (Citizenship and Immigration) 2018 FC 845 [link to decision] – Locke J. presiding.

 

Kone is a fascinating decision because it occurs in a context that I have lectured on for several years in my international student presentations. The Actively-Pursuing Studies requirement (which I have written about several times as being problematic) is most problematic when triggered by CBSA. There are many cases of international students who have missed one or two semesters (due to scheduling/health issues) but have not had issues entering new programs or getting student renewals. Kone gets triggered, not by an investigation into his studies initially, but by a related fraud matter where he is arrested.

Once this occurs, the books become open and the actively-pursuing studies allegation was sought after. We have seen this occur in other contexts as well – border entry incidents, criminal charges, arrests, etc.

The individual at that stage is often in a situation where their ability to provide further explanation is compromised. IRCC’s own process (triggered by compliance reporting and their own investigations) is much more fairer and consists of a PFL that often looks like this.

IRCC actively pursuing studies PFL letter

Students can then present a timeline including explanations as to why certain programs were unavailable or registration was delayed.

I also find the decision fascinating because, it does not (it appears) parse out the statutory requirements of what defines a failure to actively-pursue studies. At one point Justice Locke writes about one period of study:

[62]  First, I note that the applicant makes no reference to any authority indicating that his absence from Canada could excuse him.

The very provision of R. 220.1(1) of IRPR requires actively-pursuing studies only when in Canada on a study permit. Indeed, one of IRCC’s pieces of advice on this issue is to depart Canada or seek a visitor record if there is major gap due to issues such as illness or inability to enroll.

Finally, one thing that still needs to be resolved (in my mind) is whether this type of non-compliance can be cured by leaving Canada in the same way as other unauthorized work or study. IRCC’s Enforcement Manual – ENF 2- Chapter 11 states as follows:

Screen Shot 2018-09-09 at 12.14.59 PM

If a student who has not been actively-pursuing studies leaves Canada and returns either as a visitor (awaiting the re-engagement of their studies) or at a time prior to studies commencing, can the Border Officer go back to previous periods of study and render a decision that they were not actively pursuing studies while holding their study permit. It seems like an area where there is still not absolute clarity, and I’ve certainly seen most border officer’s take the later approach. Even IRCC’s PFL letter suggests that this assessment can be made irregardless of the Applicant’s travel history.

It is also worth noting a second case came out this summer El Kamel v. Canada (Public Safety and Emergency Preparedness) 2018 FC 730 [see attached link occured in the context of a student who was advised by his consultant to seek to amend his study permit at the Port of Entry (likely by flagpole) where he was subsequently issued a s.44 report and exclusion order.  The Officer noted the student’s good faith action at the Border, but noted that there were no grounds for review of the decision finding Mr. E-K did not actively pursue studies.

Expect that the actively-pursuing studies issue continues to be pursued as a ground for refusing non-compliant students but in many cases capture students that border the cusp of being also unfortunate, unhealthy, or unsuccessful which the provision can also apply to.

[3] Study Permit Refusals Should Continue to be JR’d – Raymundo v. Canada (Citizenship and Immigration) 2018 FC 759 [see linked decision] – LeBlanc J. presiding.

As discussed in my last post on the Omijie case [see link here], there has been an increasing judicial scrutiny around study permit refusals. It is understandable. There are now increasing number of study permit applicants, and while Canada has pledged more seats, within a global context it cannot take all applicants. Rates of granted study permits in many countries are still very low (15% or less, and in some cases close to 5%).

Many of these applications will begin with the starting point that the visa officer will likely refuse the application and assume the applicant will not leave Canada at the end of their stay, unless the applicant can demonstrate otherwise. While this is not how the laws and regulations should directly apply, it is a reality of the over-extended demand on a Canadian study permit.

In Raymundo, a study permit applicant from the Philippines applying for Centennial College’s International Business Program was refused a study permit. He had explained in his application why he intended to return to the Philippines to start a marine transportation business. It appears he had family in Canada who would be providing financial support but Mr. R’s wife and kids would be staying in the Philippines. The Officer found that the proposed studies in Canada were not consistent with a logical study plan and that the Applicant did not demonstrate significant socio-economic ties to the Philippines.

Justice LeBlanc found that the decision was not reasonable, rendering the following lines:

Screen Shot 2018-09-09 at 12.36.04 PM

The Applicant directly addressed his attempts in his personal study plan that he tried to find a similar program, yet the program was still found not to make sense.

The Officer also took major issue with the fact that the Applicant had left his wife and son in the Philippines and that this factor was not mentioned at all in the reasons for refusal.

Screen Shot 2018-09-09 at 12.36.12 PM

These are such common reasons for refusal that I see in many study permit consultations. Even with the Federal Court’s guidance with these cases, I still believe that visa officers will continue to refuse study permit applicants with short, trite, and little explained reasons knowing that 95% of them will either abandon their plans or re-apply to a similar refusal. I think the only way to challenge the system is to bring up these cases to judicial review.

I note a second decision this summer, Demyati v. Canada (Citizenship and Immigration) 2018 FC 701 [see link to decision] where a 18-year old Syrian national with a scholarship was refused a study permit.  Justice Roy seemed very concerned with the lack of transparency and intelligibility in concerns that the individual would not return home because of the country conditions. Justice Roy also appeared pertrubed by the type of requirements IRCC was expecting of a young student with respect to his employment history, etc. This is particularly true as parsed out in the facts presented by Justice Roy.

Screen Shot 2018-09-09 at 3.57.52 PM

One of the key differences in this matter that the officer appeared to also go too far in presuming the Applicant would not “actively pursue studies” in Canada without pointing to any evidence. The speculative nature in which was done was criticized by Justice Roy, ironically in the context of s. 7 of the Charter which is rarely ever in the same context of international students, who have no Charter rights in a context of a study permit application. Yet, his criticism, highlights the very real concerns about arbitrary reasoning that comes with many temporary resident visa refusals.

I expect more and more judicial review of these types of decisions. It may be worth considering whether the Government eventually is better off with a per country quota system (that allows for the ceasing of intakes) as opposed to needing to find reasons to refuse applicants that often times will prima facie meet statutory requirements, pending issues about credibility or misrepresentation.

[4] Students Need to Better Pathway Their Studies –  Masam v. Canada (Citizenship and Immigration) 2018 FC 751 [see link to decision] – Walker J. presiding.

I will not break down this case too much (as it is somewhat related to what occurred in Brown above). Ms. M appeared to, likely on the cases of other students, transition from a DLI, George Brown College, that was on the PGWP list to a non-eligible DLI, Canadian College for Higher Studies (CCHS). Upon completion of that second program, it had already been 90-days + since the completion of studies at a DLI. While the Applicant tried to add to the JR record an affidavit from CCHS attaching proof that other students were successfully, this did not render the assessment unreasonable in the Applicant’s circumstances.

This case makes it even more important that students, especially who are seeking to do add-on programs or transition between institutions are aware of how this may affect their overall eligibility for PGWPs.