Award-Winning Canadian Immigration and Refugee Law and Commentary Blog
In the past year, one of the areas in which I have received the most inquiries and run the most consultations involves international students who have found themselves facing either criminal charges or dealing with the consequences arising from immigration investigations
For those that wonder why I have been posting less frequently than I used to do, one of the major reasons is that I have been putting significant time into building my immigration appeals practice (currently mostly spousals, residency, misreps, and some criminality).
Following the New Zealand terrorist attack, local elements of hate have started to put out threats. Unsurprisingly, among those targeted appear to be immigration lawyers.
After it was posted, a senior colleague from Toronto and mentor Chantal Desloges shared her thoughts about the worrying nature of this incident. Barbara Jackman, OC and probably the greatest living advocate for refugee constitutional rights, thoughtfully suggested we share these messages with our assistants, many of whom are diverse persons of colour, to ensure their safety. Kyle Hyndman, a local lawyer from Vancouver whom I’ve admired for several years for his leadership and expertise, particularly in the field of LMIAs and work permits, added a further message of inspiration for us to be proud of our work.
By the way, at this point I’ll note that I have rarely ever utilized the CBA Listserv to share my thoughts. Indeed, I can count on one hand the entire number of times I have done so in now almost five years of practice (if you include articling, when I first joined the Listerv) – 3. The first time was on a truly unique fact pattern involving an overturned removal order and the Government’s financial obligations, the second was to ask for assistance on our litigation for the Parent and Grandparent Program. This was my third.
As those who read and follow Vancouver Immigration Blog and my Twitter account will know, I have recently taken a huge interest into examining power, privilege, and race. The truth of the matter is, lawyers of colour struggle in balancing these three and in turn it makes us more susceptible to anxiety, self-loathing, imposter syndrome, trauma, and stress. We become often times the invisible practitioners, behind the scenes working long hours, serving as interpreters and arbiters, sometimes even having to translate. After we serve our clients, who will often scrutinize us more because we are not white and therefore do not appear to look like your typical lawyer, we then have to handle returning to our communities to deal with the consequences (both good and bad). There’s a lot of skin in the game and it is not an easy process.
I wrote this email response to that thread.
Thank you Chantal, Kyle, and Barbara (all three fantastic mentors) for raising this important issue to our attention and your words of courage and inspiration to us.
I also wanted to chime in on behalf of myself and other younger immigration and refugee lawyers of colour. For us, we often face additional barriers – without the platforms of power that can serve to insulate and speak for us, yet at the same time with these issues and challenges so deeply embedded in the communities we serve and live in. We become part of the threatened and as well part of the front line of defence, regardless of our own statuses in Canada, simply by the way we look and who we were born to.
I am grateful for a strong CBA Executive and Coordinator team, one that has allowed me to use Twitter as a platform to share stories of inspiration, put out debate, and highlight some of the activities of our immigrant communities and young lawyers who come from them. I continue to ask you to send me news stories and developments of inspiration so we can be part of this conversation in a positive way. We also have a very diverse executive we should all be proud of and is so unique to the CBA that we should continue to champion.
As a final note, I urge you all to reach out to younger, BIPOC (Black, Indigenous, People Of Colour), LGBTQ2+, and Differently Abled lawyers in your firms and also make sure they are doing alright. Vicarious trauma and stress affects us all in different ways and for many of us with lived experience or direct family that have come from migration and struggle, these client matters and associated threats from the public take on a different meaning.
We should also be looking at ways we can help highlight diverse voices in everything we do as an organization – to make sure young lawyers of different backgrounds know they are supported and that they have a place at the decision-making table, even if this requires some of us to cede our own power and privilege in order to make this happen.
In solidarity and with gratitude,
Will
Part 1: First – A Little Personal History about Pushing Change
In advance, I want to make clear that I am not writing this first section to make it appear as if I had anything to do with the changes announced today. This was done by concerned students, stakeholders, schools, other lawyers, and great IRCC policy people engaged in this issue. I am writing this because I’ve been asked by a number of young mentee law students/pre-law students recently (and other fellow junior lawyers) how I got so engaged with international student issues. Rather than just simply copy and paste the website changes, I thought the process of my interest, advocacy, and how it all plays in – may be of interest to some readers.
Since IRCC implemented their clarified directive Study Permits: Assessing study permit conditions I had a feeling that new instructions on the PGWP would be coming. A month ago, Immigration Representatives confirmed to me by email that this was the case:
A month later, on Valentine’s Day no less, IRCC placed some little cards into the brown paper bags tied into the back of plastic chairs of international students (sorry – as you can tell I’m getting off topic and nostalgic, as I write) .
As frequent readers of this blog will know, I have been advocating for PGWP changes for several years now, having assisted many clients in various stages of challenges with this program – ranging from eligibility concerns, to initial applications at Inland Offices, VOs, and POEs, to the Federal Court, and reconsideration requests. I gave talks, wrote a lot of articles, had student clients who speoke to media, and advised schools – all because of the uncertainty. At one of my talks I think I described being an international student in Canada as being caught in a rough ocean with a life jacket on and a PR island that often appears too far to swim to.
The past few years began to see a lot of challenges in the area. Refusal rates began to climb and international students, especially from those with non-traditional study programs or for reasons outside of their control had to take leaves in order to complete their studies. While I was successful in restoring several international students who had been refused, either for having their study permits lapse or having paid less than the required fees, the case law during the time (notable FC cases from Raj Sharma and later Ravi Jain), started to close the door on that process.
There was also a huge health toll, one that was lost in the rhetoric of blame placed on international students in mainstream media. I talked a bit about it with journalist, Melanie Green here.
International students, many already dealing with separation anxiety, isolationism, and culture shock, not only pay often times 3 to 4 times the tuition than domestic students, but also face other barriers limiting their ability to work and seek access to crucial settlement services.
From a personal perspective, my own spouse was at the time going through the international student experience as were her colleagues (and I was footing the bill of course!) I saw these issues affect a lot of her friends, especially the financial challenges. Personal experience goes a long way into building a passion for practice.
Looking back, given I was having a conversation about this with IRCC program managers such under three years ago about the need for change – it has indeed been a long time coming. It has been incremental – but now there is a clear list of DLIs on the website, as discussed earlier, the aforementioned actively pursuing studies requirement was clarified, and now this.
I am very proud of IRCC for stepping up for international students. Without further ado, here are the changes.
Part 2: The Changes
IRCC’s changes can be found here and are titled “Program delivery update: Processing Instructions for the Post-Graduation Work Permit Program.”
Wow big changes here! – 6 month period from completion of studies to apply for PGWP and no more requirement to hold a valid SP when applying. Plus others. Will unpack throughout today! #cdnimm #intled https://t.co/uaWF4eRbPb
— Will Tao|陶维 (@TheWillTruth) February 14, 2019
There are two major changes from IRCC and one change that I would also add to the list, around the leave provision.
Change 1: Deadline to Apply Extended from 90 Days to Six Months
There is now a six month period, instead of a 90 day period in which to apply for a Post-Graduate Work Permit. This gives a lot of flexibility for students to further explore after graduation whether they want to continue studying or apply for a post-graduate work permit. It also removes a lot of the uncertainty which arose when a student was told they had completed their studies but did not formally graduate until several months later, creating confusion on the 90 day period starting point. Six months will make that much better.
One of the things I do see arising out of this is change is a lot of schools that were previously thwarted (or had negative fallout) from four-month add on programs now integrating it into their programs. The raison-d’etre is that these programs could assist into entry-to practice and help students secure employment without killing valuable time off their PGWPs. It may also encourage some students to continue studies rather than graduate and apply for PGWPs.
One prediction – if I may so boldly state it is that more schools will tack on four month post-graduate programs given now the 6 month window. PGWP application timing becomes an interesting art in those circumstances. #cdnimm #intled
— Will Tao|陶维 (@TheWillTruth) February 14, 2019
This could create problems though if a student applies at month 4 of 6, makes a mistakes, and becomes ineligible for restoration. Furthermore, I think IRCC and related stakeholders do have a role to play with respect to sussing out that interplay between R.222(1) (a) IRPR which could invalidate the student status of individuals who intend to apply for a PGWP at month 4 or 5 but not continue their studies. These students could lose status unknowingly.
To note – @CitImmCanada & advisors will need to spread awareness – tho students now have longer (6 mo) to apply for PGWPs – 90 days after completion of studies their SPs still statutorily lapse per R. 222(1)(a) IRPR. Could presumably now restore to #PGWP but may be tough. #cdnimm pic.twitter.com/rieEcUx3JX
— Will Tao|陶维 (@TheWillTruth) February 14, 2019
Change 2: No need to hold a valid study permit while applying for a PGWP
This is a big one – which unfortunately came off the backs of several deserving applicants who were refused. Previously, students whose study permits were going to expire before they were able to apply for PGWP had to extend their status, creating a weird scenario where they had graduated but still had to apply to maintain student status at the institution. This also affected a lot of students who decided to leave Canada right after they graduated and apply abroad, forgetting to extend their study permits.
This was also the main issue in my colleague Ravi Jain’s case of Nookala v. Canada (Citizenship and Immigration), 2016 FC 1019 which unfortunately for awhile closed the door.
Now the language is hold or held a study permit.
This also opens the door for restoration at least within the six month period. This goes again to the importance of applying earlier (rather than later) for a PGWP in most circumstances.
I would like a little more clarity around Restoration and think it should be a separate section on the program guidelines.
Change 3: Leave Exception – Discretion to Issue PGWP Where Not Continuous Full-Time Studies
IRCC has added to their instructions information about leave which specifically carve out an exception for those students who took a leave.
The Instruction state:
Leave from studies
If the applicant remained in Canada while a student and took leave from their studies during their program, the officer must determine if the applicant was compliant with the conditions of their study permit, as outlined in Assessing study permit conditions. Officers may request additional documents to complete their assessment. Per paragraph R220.1(1)(b), students must
- be enrolled at a DLI
- remain enrolled
- be actively pursuing their course or program of study
If the officer determines that the student actively pursued studies during their leave, the student may still be eligible for the Post-Graduation Work Permit Program (PGWPP).
If it is determined that the student has not met the conditions of their study permit, they may be banned from applying for a post-graduation work permit for 6 months from the date they stopped their unauthorized study or work, per subparagraph R200(3)(e)(i).
This suggests that in addition to leeway – there could also be individuals banned from applying, depending on the time elapsed before graduation. However, as we know there is also a final semester rule that does provide some comfort to international students who are part-time in their final semester.
IRCC’s Guidelines on Leave provide more insight on how this may apply in practice:
D. Leave from studies
Students may be required or may wish to take leave from their studies while in Canada. For the purpose of assessing if a student is actively pursuing their studies, any leave taken from a program of studies in Canada should not exceed 150 days from the date the leave commenced and must be authorized by their DLI.
A student on leave who begins or resumes their studies within 150 days from the date the leave commenced (that is, the date the leave was granted by the institution) is considered to be actively pursuing studies during their leave. If a student does not resume their studies within 150 days, they should do either of the following:
- change their status (that is, change to visitor status or worker status)
- leave Canada
If they do […]
My name is Will Tao and I am a Barrister and Solicitor practicing exclusively in the field of Canadian Immigration and Refugee Law. I work for a full-service Canadian immigration and refugee law firm called Heron Law Offices based in Burnaby, B.C.
he/his/him
Acknowledges that he lives and works on the traditional, unceded territories of the Coast Salish peoples – sḵwx̱wú7mesh (Squamish), sel̓íl̓witulh (Tsleil-Waututh), and xʷməθkʷəy̓əm (Musqueam) nations.
This site reflects my personal opinions and views only and should not be relied on and should be verified prior to any professional use. Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be outdated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
