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:

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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:

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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.

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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.

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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 […]

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:

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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.

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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.

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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.

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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.