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Establishment of a Contradiction: Why Accompanying Dependents Stuck With Covid Study Permit Instructions
Immigration, Refugees and Citizenship Canada (“IRCC”) has acted quickly and swiftly to adapt to the changing scene for international students as a result of COVID-19. Through changes to program instructions representing the various phases from exclusion (travel bans) to now the accommodation of the Designated Learning Institution (“DLI”) Readiness plans, it is clear that international students have been a major priority of this Government through the pandemic.
Yet, a counternarrative is also emerging through COVID of both delayed processing and higher refusal rates. Indeed, with just early stats available representing the first quarter of 2020, it appears that refusal rates for study permits have jumped up since the pandemic (40% to 50%). Many students, especially outside Canada, are facing visa office delays waiting for a decision on their study permit applications.
A subset most affected has been those applicants who seek to bring their accompanying dependents, especially spouses and children with them.
Instructions provided by IRCC on this point, in my perspective, might create problems. IRCC writes in their instruction.
If immediate family members want to be with you in Canada
Your immediate family members may be able to come with you to Canada.
If they travel with you
They don’t need a written authorization from IRCC to travel with you. However, they must show that their reasons for travel are non-discretionary (non-optional). For example, they’ll help you get established and support you in Canada.
How Does One Demonstrate Establishment Without Creating Ties (the Definitional Contradiction)?
One of the major challenges with study permit applications generally, in fact – likely the biggest challenge right now, is the very issue of Applicants who want to access the pathway to permanent residence through study permit applications.
Because dual intention is more difficult to establish for international students (particularly those who are overage students or are seeking to start fresh in new areas of work), there is a need to demonstrate a clear intention to be able to leave Canada at the end of one’s authorized stay. This challenge is exacerbated when one is bringing spouses and dependents, particularly from countries where Canada would serve as an economic and situational improvement for the entire family.
Meanwhile, because the Courts have scrutinized Visa Officers trying to make negative bona fide findings without raising credibility as an issue (i.e. sending a procedural fairness letter or holding an interview), the easiest way to refuse an application is on assessing the ‘push’ and ‘pull’ factors with respect to an Applicant’s intentions to leave Canada at the end of their authorized stay.
An Overseas Visa Office does this by demonstrating that there are enough ties to Canada created by the study permit application (‘push factors’) and not addressed by the corresponding ties in their home country (‘pull factors’) to have them return. For an example of this analysis see: Gauthier v. Canada, 2019 FC 1211 – see especially paras 18-23.
This refusal is often captured under s.183(1)(a) of the Immigration and Refugee Protections Regulations which states:
If a dependent spouse argues they will help the principal applicant’s studies in Canada by working in Canada, that goes to the heart of the intention and the bona fides. As discussed, even though Courts have suggested these require some sort of procedural fairness process, Visa Offices still routinely refuse here on merit (intention of study). It can also possibly go to finances and ties, if the Visa Officer begins to have concerns emanating from intended work.
Let’s say the dependent spouse says they can support because they have family ties in Canada – siblings, uncles, aunts, and relatives that can assist. Now this creates the presumption of family ties, which again although assisting in establishment, would clearly pull away from Canada and establish the very family ties in Canada that one usually tries to downplay or explain in an application.
Usually where there are significant family ties in Canada, the best strategy is to demonstrate how the compliance or good standing of that family member (usually through a letter) makes them a check and balance. Yet, where this comes from the family member of an accompanying spouse, this argument becomes much more difficult to establish.
In fact, thinking it through, I can only think of one way to argue that your spouse’s assistance to your establishment could be positive – the presence of a large savings account from and maintained in the country of previous residence to serve as financial support. Still here, it could be argued that the movement of assets and liquidation of funds shows the breaking of ties and the lack of dual intention. (see Pisarevic v. Canada (Citizenship and Immigration), 2019 FC 188 (CanLII) for an example of where this applied).
Last week, I presented at the NCIC 2020 on the emerging topic of Critical Race Theory. I wanted to share such a slice of my presentation for further discussion.
Vital and pertinent observations from Will Tao and Sharry Aiken during the #NCIC2020 panel
Implied Status can be complicated.
During the COVID pandemic, I have heard from both employers and employees that understanding when a worker can or cannot work is confusing, and leads to legal risks.
Why Rain is Right: There is No Principled Reason for Why A Canadian Temporary Resident Should Be Denied the Right to Change Their Legal Gender
Rain Edmond, a third-year political science undergraduate student, recently wrote an op-ed for her university’s Memorial University Gazette that raises an important question about a policy gap disproportionately affecting the intersection
My Value Proposition
My Canadian immigration/refugee legal practice is based on trust, honesty, hard-work, and communication. I don’t work for you. I work with you.
You know your story best, I help frame it and deal with the deeper workings of the system that you may not understand. I hope to educate you as we work together and empower you.
I aim for that moment in every matter, big or small, when a client tells me that I have become like family to them. This is why I do what I do.
I am a social justice advocate and a BIPOC. I stand with brothers and sisters in the LGBTQ2+ and Indigenous communities. I don’t discriminate based on the income-level of my clients – and open my doors to all. I understand the positions of relative privilege I come from and wish to never impose them on you. At the same time, I also come from vulnerability and can relate to your vulnerable experiences.
I am a fierce proponent of diversity and equality. I want to challenge the racist/prejudiced institutions that still underlie our Canadian democracy and still simmer in deep-ceded mistrusts between cultural communities. I want to shatter those barriers for the next generation – our kids.
I come from humble roots, the product of immigrant parents with an immigrant spouse. I know that my birth in this country does not entitle me to anything here. I am a settler on First Nations land. Reconciliation is not something we can stick on our chests but something we need to open our hearts to. It involves acknowledging wrongdoing for the past but an optimistic hope for the future.
I love my job! I get to help people for a living through some of their most difficult and life-altering times. I am grateful for my work and for my every client.