International Students and the Law

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Applying for Study Permit – Does I Matter if I Apply in Canada? – FC Weighs In

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 Р16 (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‚Äôs 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‚Äôs 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‚Äôs observation that the applicant had listed the occupation of her two children as¬†‚Äústudents‚Ä̬†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¬†‚Äúunclear‚Ä̬†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.

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What IRCC email “actively pursuing studies” compliance checks look like

Email Compliance Checks

As you may have seen from IRCC’s revamped study permit instructions website, the process of verifying whether a student is “actively pursuing studies” is finally being taken up by the Department. While some may find concern in this (given the broad nature of R. 220.1¬†IRPR), if it leads to less Port of Entry decisions and more assessment by those who understand the challenges of international students and can grant some of discretion, this can be a positive thing.

I have shared an earlier post – what the letter looks like but I want to provide some more details about what we know and what we don’t know. Hopefully, IRCC will also put up some sort of an information page that sets out the guidelines/thresholds to be met and what (if any) steps a student can take to explain peculiarities or normalize their study status when facing such a request. For one, it is not clear how a student is to address medical breaks, time outside Canada (when they are not subject to the requirement to actively pursue studies), or any other explanation in a manner that can lead to the exercising of positive discretion.

Step 1: Receive Email from IRCC

IRCC.DNISPCompliance-ConformitePEERN.IRCC@cic.gc.ca

  • On this a side note and tip- many international students utilize the email of educational agents, family members, etc. to apply for study permits. For many of them, once you are comfortably in Canada and in school their obligation ceases to exist, but yours still do. I would suggest creating a MyCIC and linking your application to your new MyCIC to ensure that you get communication. Alternatively, you may choose to contact IRCC by IRCC webform to change your contact information. Still, IRCC has been known to send emails to wrong/old addresses. Being proactive will do you well here.

Step 2: Read the Email from IRCC carefully, noting deadlines, format and documents required

Copy of a compliance check

In this sample request, there are two things requested – one proving current enrollment status and a second requesting transcripts from past dates. There is also under the “Please note” section the ability to provide additional explanations.

With a deadline, you want to make sure that if (for whatever reason) documents may not be obtained within the deadline [let’s assume your consultant sent you this email three weeks late and a transcript takes one week to obtain from your former institution], make sure to¬† email and ask for a reasonable¬†extension of time.¬†

Step 3: Review the Letter/Transcripts You Get Carefully

Not all letters and transcripts are self-evident when under review. It is possible the educational institution themselves may not have undergone an immigration audit of their letters, attendance records may be inaccurate/missing, or the transcript may have some issue that you were previously not a party to. Schools also may have very unique semester systems that are not captured in their enrollment letters or transcripts. It is important before you pass it on directly to IRCC that you review it for possible flags that may need explaining.

That being said, IRCC’s technology to catch fraud is increasing, comes with high consequences (a possible 5-year bar from Canada for misrepresentation and/or regulatory offense/charges). I would highly advise against any one seeking to alter anything for the purposes of trying to cover up a record of underwhelming studies. There is sufficient enough grey in the legislation that you may be better off providing an explanation of your ongoing intent and explaining short periods of non-compliance than to cover up or hide it.

Step 4: Provide a Response or Determine if You Need Legal Assistance Providing Said Response

Next comes responding. If there are straight forward documentation which clearly establishes your attendance with no issue, you may be okay sending in just the transcripts. However, in many cases a cover letter or timeline may be beneficial to provide. Your job is to make the Officer’s job easier and as well advocate for your own past studies and ongoing-pursuit of studies. Again, at this stage, there are no clear cut rules as to the standard of proof. It is unclear whether students on academic probation, students who failed, and students who were wait listed or prevented from studies due to registration/health issues will be able to get a hall pass. Hopefully, in time these issues clarify themselves and as well IRCC also clarifies their communication with CBSA on students seeking entry who may have violated the actively pursuing studies requirement. In an ideal world, I would like to see CBSA cease issuing removal orders at the Port of Entry and referring cases to IRCC to pursue, giving students fair and reasonable opportunities to respond to concerns and/or make necessary efforts to change their status, if required and available.

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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] РManson 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 […]

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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 Рspecifically 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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