Setting the Scene: Where We Are At and Where We Are Going
I have been struggling with this post – to capture the experiences of the many prospective clients/international student applicants who have entered our door of late asking about their study permits, more specifically why they have been refused, delayed, or found inadmissible for misrepresentation.
Remedies are both a huge time commitment and often times a big corresponding financial commitment. In thinking about how I could input myself into the process (in a helpful way) I thought about writing a post where I take those experiences of all the international students who come see me to try and remedy their refusals and summarize it into five (likely oversimplified, but deeply important) points. These points are important both for international students to protect themselves (be it emotionally, financially (from those all-too-eager to exploit), or even just to help plan their futures during tumultuous times.
We all know the starting point: Canada has become an increasingly attractive study destination especially compared to other countries. While international tuition is still what I personally believe to be dangerously high, it is comparatively cheaper to study in Canada than many other Five Eyes countries. Our immigration options for international students also provide much more flexibility around work while studies, post-graduate work permits, and work permits for accompanying dependents.
We also know that COVID, as my colleague Lou Janssen Dangzalan uncovered through a recent ATIP request, has had a major detrimental effect on study permit applicants.
This has impacted overall refusal rates:
We can objectively say that COVID or not, it is becoming more difficult to apply for a study permit. https://t.co/LdEKtQQIM9
— Lou Janssen Dangzalan (@ljansdan) March 4, 2021
If we look at the two largest international student generating countries – India and China, we see the impact in terms of the change in approval rates:
Study Permit Approval Rate: India 🇮🇳
2016: 68%
2017: 65%
2018: 66%
2019: 64%
*2020: 43%*up to Nov. 2020
— Lou Janssen Dangzalan (@ljansdan) March 3, 2021
The stark numbers of how many less study permits were issued in 2020 (granted the data is not entirely complete) cannot be ignored:
ATIP Disclosure on Study Permits
(data up to November 2020)
No. of study permits issued since 2016 -> Nov 2020:OVERALL: 859,645
2016: 150,397
2017: 194,293
2018: 218,829
2019: 244,826
*2020: 51,300(up to Nov. 2020)#cdnimm @TheWillTruth @ArenousNGO
— Lou Janssen Dangzalan (@ljansdan) March 3, 2021
For the time being, new restrictive and frankly, confusing, policies such as IRCC’s rule on accompanying dependents of international students (for example discrepancy between: https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-covid19/students.html#family or https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-covid19/students.html#family) along with the new quarantine rules are a signal the Government wants to get through the vaccine phase before admitting too many more international travellers (including international students).
This is my theory about where post-COVID recovery will ultimately go:
Once COVID is under control, gates will open. Is a strong enough system + facilitative pathway to PR in place to deal w/ expected/needed demand?
To look into + to anticipate. Thanks @ljansdan for ATIP info. The #CIMM should be meeting on this issue now to prepare early.#cdnimm https://t.co/DEifm2BwBR
— Will Tao|陶维 (@TheWillTruth) March 3, 2021
With this in mind, we have a timeframe of a few months for most international students to consider carefully their next move. Perhaps, for some, it may even be re-evaluating. I would not throw caution into the wind. Whether you are the paying parent of an international student who insists they ‘got this’ or if you are the international student, wondering what your agent (who is very likely being paid more by your school than by you) doing.
Without further ado, here are the five things I wish international student knew before applying for a study permit in Canada.
Thing 1: Be Very Intentional and Careful About the School/Programs/Immigration Advisors You Choose
Not all schools are treated by Canadian immigration (“IRCC”) the same. There are schools with excellent reputations, many of them being public/higher-level institutions. There are others that have not-so-good reputations – perhaps being smaller private colleges that often take students with lower academic accomplishments. These lists are also not static. Many schools on both sides of the aisle have taken steps and/or hits. Do some research on the reputation of the school.
Be also intentional about where you study. A Visa Officer may have questions already about where you are coming from (see Thing 3 below) and wonder why you are going to a particular Province and that particular school.
As an Applicant you need to be able to make a business case for this: that likely should go beyond the access to permanent residence pathways. As I discussed in this post, dual intention has been utilized as a buzzword but it packs a complex case for meeting the R.216 IRPR requirements to demonstrate you can leave Canada at the end of your authorized stay.
If you are a student from a refusal-producing country (i.e. the statistics, which are accessible if you look hard enough, demonstrate most applicants are being refused), I would suggest it becomes more important to demonstrate that your studies are bona fide. If you receive scholarships or are entering a level of education that is considered a major upgrade to your education, these are factors that can assist towards maximizing your chances of success. I use the word chance very specifically.
There are no guarantees anymore in the area of international student immigration law/policy.
Be also very aware an intentional about the systems operating around you.
These systems include your family members (what your parents want for you, siblings, other family in Canada).
They include the Designated Learning Institutions (“DLIs”) which have a mandate to protect their own interests. If they refer you to someone (as institutions do to me) it is very fair to ask them why this individual. Be due diligent. This definitely includes agents who say they can do your immigration work for 100 or 200 dollars without disclosing that they are neither authorized immigration representatives (and therefore ask you to sign your own forms) or that they are making a 1/3rd of your tuition back as their finders/placement fee.
This extends to banks/creditors who might be financing your studies for their various reasons but perhaps willing to bend rules and documentation to assist you. Don’t underestimate immigration’s own access to finding out whether a document provided is genuine or not. Same goes with language tests, that are increasingly under scrutiny for fraud prevention.
If you are applying, as most are, from outside Canada know too that immigration fraud unfortunately does exist and if there are red flags (agents who claim they have connections or apparently bizarre correspondence between them and the visa office) take action. Many applicants can save their own situation by seeking a withdrawal (either with or without new counsel) and/or an opportunity to correct the record before it is discovered. Check and ask to see every document that leaves your hands, including making sure that they are submitted in the form you want them to be submitted.
Be very intentional, careful, alert, and aware to the profit industry that is international education and your own role in the system. The more control and guidance you have over your own situation, the better you will be able to rationalize the outcome and prepare for your experiences in Canada.
Thing 2: Get to Know Your School Registrar and International Student Advisors Really Well
Get to know the school registrar.
Why?
You may need to defer studies depending on processing times and your own ability to obtain documentation. You may need to ask for refunds or for further letters. Make sure you have direct contact with the registrar and do not over rely on an agent or third-party who may not have your best interests in mind.
Get to know the RISIAs and RCICs who often work for the schools.
RISIAs stand for Regulated International Student Immigration Advisors and RCICs are Regulated Canadian Immigration Consultants. These individuals are often employed by Universities and Colleges to assist with international students. A flag for you may be how few resources the school may have for international students. Schools that have more international student support, more resources, tend to be better positioned both in terms of achieving student approvals but also to help once you are here. This is of underestimated importance. When you become an international student, you must navigate leaves, full-time student status, and post-graduate work permit eligibility, events and occurrences that are very crucial to your success and eventual pathway to permanent residence.
Each DLI (and often each departments) has their own policies surrounding how much they can help out, particularly for applicants who are overseas. I tend to find that students who receive scholarships or are attending specialized programs do get specialized treatment. Some DLIs even assign certain staff to focus just on these programs. This may be crucial, especially in light of a first stage refusal that requires reconsideration or a re-application, with school support. Good DLI RISIAs and RCICs have single-handedly been able to make an impact for students, by providing additional letters of support, explanation, or even a referral to a Member of Parliament that can change one’s prospects.
The better the relationship you can build with them and start fostering early on, the better it is. Again, do not rely on your agent or educational consultant, who has a very different end goal and outcome from being that liaison (getting paid off your end enrollment, with payouts depending on the school you attend and their agreement with them).
Thing 3: There Are Constraints on Approving Your Application That Are Outside Your Control and Highly Irrational
I would have made this the first Thing, but I wanted to only give this only to those readers who make it this far.
I have spent a lot of time recently with clients trying to rationalize irrational refusal letters. For example, individuals are wondering how they could be refused of a lack of travel history even though they provided a full passport full of visa stamps (side note: a refusal ground I note several Federal Court decisions have confirmed is at most a neutral factor – which presence in a refusal letter template isn’t). They are wondering how they can be refused for family ties in Canada without a single tie to Canada and applying solo (side note: this one is very hard to square, and case law reflects this). They are wondering why misrepresentation findings were issued over simple mistakes such as failing to disclose a U.S. visa application over a decade ago, rather than giving them an opportunity to correct a clearly innocent mistake (side note: the law doesn’t support this position).
As in all areas of administrative law, but exemplified in the case of immigration, there exists a significant amount of discretion. I personally have not ever seen or represent a client that I could not find some reason to refuse, if I looked hard enough. Put it another way, I can write a refusal for any applicant if I tried hard enough and had a strong grasp of the law and where the gaps lie. Increasingly, with automated decision-makers, this will become a science and applied in an administrative effective way.
Where there are targets and caps, and applicants from countries Canada may be diplomatically less familiar with or historically eager to limit (often times Global South, African, Central Asian, Middle Eastern, countries) the consequence is a majority of the case – refusal. This is the starting point, that is worked backwards from. The toolbox of visa officers is made up of pro forma (standard template) wording that they may or may not justify with additional words in refusal letters.
Furthermore, inadequate reasons are not themselves a reason for a decision to be found as unreasonable, and more and more Courts are willing to read in constraints (such as the policies, rules, Government discretion) over the process. They do not need to write essays and in fact, the less they write/the less it can lead to applicants disagreeing and/or challenging the decisions. A delayed Access to Information and Privacy (ATIP) process unfortunately facilitates a lack of remedy-seeking.
What all the above jargon means for international students is that refusal reasons will come even where you may in fact meet the legal test in my eyes or the eyes of some other authorized representative applying just the facts to the law. I tell some clients now that Canada’s international student regime has become itself like an Ivy League school in the United States. You could have the best grades and best story to tell, but the reality is there will need to be the 50-60% refused (subject to any policy shifts resulting from COVID). These 50-60% will not be coming from France (where the approval rates are in the higher 90s) or UK or the United States – where many citizens amass travel between Five Eyes countries in the past with little to no problem. They will be coming from Africa, Central Asia, the Middle East, and South America. What occurs domestically and what happens with the global movement of displaced persons is so relevant to temporary residence in Canada, an understudied area of Canadian immigration law.
To summarize: the system is built off being able to refuse entry to individuals with little to no effort.
This is not too say that these should not be challenged (Thing 4) but I find those who try to take a rational lens of understanding what happened need to understand that much of the process is not rational. If you are a mature student overseas having a well-thought out mid-life inspiration to come to Canada, and you either do not have citizenship in your country of residence and/or your country is refused with a 80% refusal rate, reality is the prospects are bleak. Even in my role, knowing the law and how it applies, I can only prepare us for the likelihood of having to go to Federal Court or re-apply knowing it will take a few tries before we get in the door (if we are able to at all).
Thing 4: Applying Again and Again Isn’t Always the Best Solution – Sometimes You Need to Escalate
One of the things that I often get are emails from prospective clients asking for quotes for re-applications for study permits. They have been told or possibly believe that a new application is their only solution. Many are many applications in already, having been refused several times. As a quick side note, I would be weary of any professional quoting you before they see your documentation in full (which itself will likely be subject to consultation or hourly/review fees).
There is a lack of understanding on the common remedies for refusal:
Reconsideration requests are highly misunderstood as just an email asking them to redecide the case. There is an art to reconsideration requests (and some science) that needs to be carefully considered when doing this and preserving a future application, if you are not successful. Subject to a data request where I am trying to figure out which visa offices are more open to reconsideration requests, my current position is that they are not simply a ‘plea for a different decision’ process.
Even temporary resident permits, which are a problematic regime as I outline here, play a crucial role in supporting certain applicants that may have issues with statelessness or the inability to meet certain requirements of the IRPA or IRPR.
More importantly, judicial reviews have been underutilized by international student as a remedy option.
What are the benefits of judicial review?
Rather than re-applying and giving the Visa Office another opportunity to bolster their decision, filing a judicial review (asking for a writ of certiorari) engages counsel (lawyers) for the visa officer who will need to input themselves in the process. For me, this is leverage that I need and want. These lawyers are often fair, intelligent, and understand the case law. If there has been a clear mistake or oversight made by the visa office, they will many times, step into the process and seek a consent, resolving the process earlier. Based on the international student cases that are making it all the way to final decision (i.e. obtain leave and a hearing), it appears that many non-complex cases are being decided early in the process.
Is it costly? (Compared to what?)
There is another misunderstanding that costs of this process are always prohibitive. Let’s be clear, the legal fees for judicial review are not cheap. Yet, I would throw up red flags for any process that markets as a ‘do it yourself’ judicial review or is recommended as some sort of ghost self-rep process. While there are some excellent initiatives around self-represented judicial reviews and other ways the process is being made more accessible, it still is a forum for very technical legal arguments on the standard of review and administrative law. It is the one forum that if I were outside of the process looking it, I would absolutely hire someone for (if I could).
However, like many processes in immigration, judicial review is not just one straight line path. If, for example, a judicial review is filed because an applicant does not know the reasons for refusal and the current Access to Information Request process is severely delayed as we discussed earlier, an Applicant may reasonably abandon this process to instead file a new application.
As the GCMS notes are read into the standard form refusals, it is very possible that the notes highlight a gap that simply was not addressed and central to the refusal. This may support a new application. It is similarly very possibly (and increasingly so) that a judge denies leave because they do not see an arguable case. It might just be that the facts cannot be changed to fit the law, and the reason was fair and reasonable (even if disagreeable). It could also be possible that the matter is resolved early or perhaps later, at the hearing itself when a Federal Court judge renders a decision.
It is also possible to re-apply at the same time or request reconsideration.
The costs of the process, with these different outcomes possible, shouldn’t all be the same. If it comes down to filing a JR and re-applying, it is very possible that these two costs could come down to around a similar amount. Consider this also within a process where you are paying a DLI 4 x 5 times regular tuition and an agent is taking 1/3rd of it, what portion a potential pathway-saving remedy should cost.
What is the Process?
Again, from the student side it is about resource gathering to prepare yourself for the process. I will have further blogs up that will speak to judicial reviews of international student decisions shortly (working on one for this upcoming week). However, what is most important is to get your hands on a copy of your entire file, whether or not you saved it yourself or you passed this on to a third-party to take on.
Make sure to try and file an ATIP request for GCMS notes and a full copy of your application as soon as possible (see: https://atip-aiprp.apps.gc.ca/atip/welcome.do).
Do not miss filing deadlines for the process (60 days from receipt of decision made outside Canada, and 15 days from receipt of decision made inside Canada). Hold those who receive decisions for you to pass them on to you as soon as possible.
For me, the most important thing is to review these and consider whether re-applying, requesting reconsideration, or judicial review would be most appropriate (or a combination) and I need enough time to review the file and the history to make the best recommendation. Don’t understand the importance of that first consultation. I know it is tempting to focus on price and result, but I would throw red flags up if someone is quoting success rates without reviewing documents (unless they are citing to evidence from the Federal Court on these rates).
Thing 5: Carefully Consider Alternatives (Both in Canada and Outside) and Think Long-Term About Canada
If you really want to be in Canada in the near future, you cannot rush the process and end up finding yourself inadmissible or here and making a refugee claim out of desperation or poor advice. These things happen more than meets the eye (or even public attention).
There are often a few things that many applicants forget to do. First, is to canvas the options. Where permanent residence may be the end goal, perhaps there is a better way to get there. There are numerous LMIA exemptions that are often underexplored. There are Provinces (although less and less) that do not require Canadian work experience or could possibly nominate you with a little support from an Employer. The reality is not all immigration stories work out (or are even possible) on the basis of studies in Canada alone. Others work out, but first with studies at an interim country – helping to bolster the argument for temporary residence in Canada.
There is so much importance (and value) in immigration planning around alternative options for getting here. This will also allow you to study more affordably once you are a permanent resident. Unfortunately, and this is especially true outside Canada, international studies offers the advisor/agent themselves the best personal benefits and these will often be recommended as a first and only option.
It is also not a rush. Think about this at every corner – starting from submitting a complete and accurate application to responses to procedural fairness letters to timing a re-application. I’m recommending almost everyone to wait for the window when the Government indicates that international students are being welcomed back with open arms.
Catch me on Mark Holthe’s “Immigration Nation” this Thursday (2pm PST, 3PM MST)
I am grateful that my friend, colleague, and President of CBA’s National Immigration Section Mark Holthe extended an invite for me to come on to his show to chat more about about this topic. I encourage you to come watch. We always have great conversations (per our last two episodes).
Join Mark Holthe and Will Tao for the new episode of the Immigration Nation on Canadian Immigration Institute YouTube Channel at 3 PM MST, Thursday, March 11 pic.twitter.com/a8CsACFVhh
— Holthe Immigration Law (@HoltheLaw) March 5, 2021
I will end this long-post here, but I do encourage you to share this with your network. I think we can do a much better job of opening up transparency and building trust (both in our various professions and as a country). International students need support in ways that our system is only in the beginning of coming up with.
I encourage those with thoughts on this piece or need assistance on their own situation to email me at info@heronlaw.ca so we can keep this conversation going.
In Gratitude.
