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 have been following my work over the past two years, international students (and graduates) have become a huge part of my practice. Through my work I have gotten to speak to hundreds of international students about their experiences and their struggles. With my own wife now an international student, I see the challenges on a day-to-day basis.
I wrote this piece for New Canadian Media because I felt the stories of international students were not being told. The last thing any of them would do is contact media and many, before we pursue federal court to fight their refusals, always worry about their record and their future in Canada. They have told me about their episodes of depression, lack of support, few friends, and frankly it’s a devastating story. This has been compounded by media constantly citing international students for a multitude of societal ills. Most of these ills, I humbly submit are the fault of our entire society of which international students are just a subset.
Check out my piece here —http://www.newcanadianmedia.ca/item/40286-listening-to-our-international-students-listening-to-our-international-students
Limited by space, and edited, I left out a lot of things in the final piece for NCM which was well-edited by their Team. I wanted to put the original version below (raw, uncut, with no headings) so you can see some of my thoughts in more fuller form.
Why Canada Needs to Do More to Protect International Students
Over the past year, Canada’s 400,000+ international students, particularly those in major metropolitan cities such as Toronto and Vancouver, have been subject to intense criticism. They have been blamed (directly and indirectly) for being a major contributor to such social ailments as overheated rental markets, unaffordable home ownership, abuse of public services, cheating, and unsafe roads (just to name a few).
A bulk of these criticisms are focused, as understandably Canada is only recovering from her post-census statistical dark period, on what we can label as anecdotal accounts. These accounts come from professors who study and interview as part of their work and anonymous, retired institutional instructors who can now share stories with no need to self-censor. These accounts come from positions of privilege.
There is no reason to doubt the credibility of these individuals and experts or deny that international students, just like all young Canadian students regardless of citizenship, probably in some way contribute to the social challenges we are dealing with. Indeed, by issuing them visas, they become guests at our proverbial dinner party.
However, what bothers me, as the product of an immigrant who came as a Canada international student in the late 80’s and as someone who is now married to an international student, is that this ‘blame narrative’ is just one side of the story. In drawing many of our conclusions, we have not been good listeners of international students. In fact, we generally have silenced their perspectives and ignored their challenges.
To begin, it is easy to forget, with every news story attaching immigration status to the identity of the wrong, that the majority of Canadian international students are bona fide, meaning they are compliant with rules and regulations. In 2014, when it was estimated by the Canadian Bureau of International Education there were around 336,000 students, Citizenship and Immigration Canada (as it then was called) estimated that there were 20,000 students at high-risk of non-compliance. This accounts for only about 6% of all students admitted into Canada. One would never guess this by reading mainstream media accounts.
Next, it is important to sit down and listen to the challenges of international students and share their stories as well. I believe this task is incumbent on my journalist friends to take on, which I hope this piece will stir. In my legal work advising international students on their immigration matters, I have had the opportunity to become trusted advisor and hear these stories. From first hand experience, I can tell you it takes work for them to share with me their stories in their own native language, let alone share with their own family members and counsellors and teachers in their non-native language.
From my work, I have noted the major barriers faced by international students as follows:
First, Canada’s own immigration policies have made it difficult for international students. On the front end, the financial requirements on international students are prohibitive, in many cases. Students generally need to show one year of international tuition (usually four times domestic tuition), funds for room and board, and at least CDN 10,000 additional dollars per applicant (and accompanying family member) just to be approved for study permits. Many of the world’s best, those with the stories of growing up in abject poverty and studying by candlelight, realistically can only study in Canada if they are given a full-ride scholarship to do so. By focusing the attention on what amount to ‘wealthy students,’ the fact that some of these students come with no motivation to study cannot be of no surprise. If we genuinely want better quality students with long-term intentions of becoming Canadian permanent residents and Citizens, Canadian immigration should provide more pathways for these prospective world-class students.
Once a student is here, Canada currently has a restrictive requirement that students ‘actively-pursue studies.’ While I believe the initial intentions of the regulatory changes were good, in practice it has hamstrung international students and in an alarming number of cases has even led to the removal of students from Canada. Educational institutions now have two-tiered policies, where international students are subject to what I believe is excessive (and costly) monitoring and reporting requirements with Immigration, Refugees and Citizenship Canada. Depending on the institution, international students have to take certain number of courses and maintain a certain attendance rate, while domestic students do not.
I entirely disagree with this two-tier system. I believe in substantive equality for all students and I think that equal treatment is in line with Canadian values. I often use the example of my own undergraduate studies, where I took an economic history course. Due to my intense course schedule that year I went to three classes all semester – one to get the syllabus, one to hand in the term paper, and one to write the final exam. With my 5% attendance record in the course, if I were an international student, I would likely have been kicked out and possibly expelled or removed from Canada. Students with family emergencies, mental health episodes, or who simply want to explore a different area are left helpless by restrictive and, ultimately, unclear policies.
Finally, once nearing graduation, eligibility to continue in Canada and obtain a post-graduate work permit for which permanent residency in almost all cases depends on, is tied to the individual’s past ‘full-time and continuous’ study. The way these Regulations work make it imperative for the international student to have remain enrolled at all times. Students with financial difficulties, who do poorly and fail classes, or who simply have been to different institutions and in different programs trying to figure out their pathway often face challenges at this stage.
Second, there are major societal barriers against international students. I have worked with many international student advisors who have told me anecdotal stories of students breaking down in their advising sessions as a result of mental health issues. Without family and often adequate knowledge to seek professional help, these students are particularly vulnerable. A common theme from students that have seen me is that they are receiving poor academic support services and have even been subject to discrimination due to their country of origin and their inability to speak English fluently. I think all Canadian institutions need to do more to make their faculty more diverse, and their student services more culturally sensitive and accessible to those dealing with the challenges of being temporary immigrants to Canada.
Finally, and it has to be acknowledged, there there is an underbelly of poor, and in some cases fraudulent, third-party services to international students. Many of these purported advisors are untrained and unqualified educational consultants and agents, many of whom operate abroad without any regulation or in Canada with little care or attention paid by regulating bodies to their practices. They charge exorbitant fees, often keep international students entirely in the dark, and structure their arrangements so students assume and absorb all the risk. International students, especially when in desperate situations and without family or friends to assist them, find themselves trapped in cash schemes. These advisors are paid by the institutions and potential employers to set the students up, without full disclosure to their client, the student. Inevitably, if not now than later on, these students find themselves in situations akin to fraud or misrepresentation, for which there are severe criminal and immigration consequences.
Regardless of the economic questions and the political questions raised by student immigration, we must not forget that these students need to be represented in the decision-making process. We have seen as an example down south, what happens when immigration law is mandated by public opinion, fear, and top-down orders.
If we continue down this path of blaming and not accommodating, I foresee only increased fracturing within our already fragile mosaic.
As I mentioned in a post written in September 2015, the requirement that a study permit holder “actively pursue studies” in Canada while holding their study permit creates major challenges.
When I first wrote my post in 2015, I imagined that exclusion orders issued pursuant to Immigration and Refugee Protections Act s.29(2) + s.41(a) would occur mostly in the context of in-land investigations. I imagined these would be situations where Designated Learning Institutions (“DLIs”) when required to update CIC (now “IRCC”) via the student compliance portal would trigger Canada Border Services Agency (“CBSA”) to investigate. Other than that I thought that international students would otherwise be brought to the attention of CBSA by external means (i.e. police-reporting, working without authorizations, etc.), where studying without authorization would be an add-on to existing concerns.
My understanding now is that with IRCC’s International Student Program (“ISP”) student compliance delivery instructions still pending final publication for sometime later this year, the main trigger of these investigations are actually reports to CBSA or initiated by CBSA themselves.
It may come to a surprise to some individuals, but CBSA often is not provided instruction on how to interpret IRCC rule/policy changes, but rather, like myself as a practitioner or a client, have to react to them by developing their own positions. These positions, as admitted by CBSA, are not always perfect and often can lead to inconsistent application. That turns into the legal grey area that often gets clients in trouble.
Yesterday, I attended a talk where CBSA program directors talked about the recent Port of Entry issues they have noticed. This talks reconfirmed (my fear) that the ‘actively-pursuing studies’ requirement has been interpreted by CBSA quite broadly and that this requirement has created challenges for international students. I had been hearing similar issues from in the international student community, but this talk reaffirmed them.
Travelling during “Regular School Term”
When a student is ‘actively-pursuing studies’ they are expected to be in class when there is class. Full stop. Inevitably, trips taken during class will happen. Things happen back in the home country, emergency trips to see loved ones, health and financial issues, or even the occasional mid-term getaway. We could all use the occasional break, right?
Well, the challenge is, that without program delivery instructions set by IRCC as to how discretion is to be exercised, there is a huge risk to an individual who leaves Canada during the regularly scheduled school term and tries to gain re-entry into Canada.
As a colleague of mine correctly pointed out, there are also challenges with the way the legislation is being interpreted right now in sense that a plain-letter interpretation of the law suggests that the law does not apply while an individual is abroad with a study permit. However, I now understand that the study permit holder does not need to be in Canada and not studying but arguably can be in their home country and holding a study permit, not studying and still fall into the requirement to actively-pursue studies.
Conditions — study permit holder
220.1 (1) The holder of a study permit in Canada is subject to the following conditions:
- (a) they shall enroll at a designated learning institution and remain enrolled at a designated learning institution until they complete their studies; and
- (b) they shall actively pursue their course or program of study.
CBSA’s recommendation, and one I would fully adopt for students is that they need to bring with them adequate documentation when they leave Canada in the middle of the school term. I would go a step further and suggest that this is true ot just a student’s own school term – which may or may not correlate to when a majority of students are expected to be in school.
One of the examples that CBSA provided of a “possible flag”, was an international student attempting to arrive in Canada mid-way through September. This is of course, premised on the fact that the designated-learning institution operates on a Fall/Winter semester school year. In fact many DLIs go according to different schedules, particularly those that offer continuous courses over summer but provide options for students to take authorized breaks.
Proving your Breaks
Students would be wise to have (among other relevant documentation):
They should also be prepared to answer questions in secondary examination, if referred. Particularly, where a student’s first language is not English, the international student should know how to ask for interpreter and/or answer basic questions about there whereabouts and activities while abroad. Answers provided incorrectly or, worse yet, with misleading intentions may result in further immigration consequences such as misrepresentation.
Students would also be wise to ensure they are compliant with other customs policies. Often times another violation, i.e. failing to declare goods upon entry, will trigger a referral to secondary which will itself trigger a non-compliance with study permit conditions finding.
Consequences of Exclusion
As alluded to earlier, a student, if upon examination is determined not to be a student who is ‘actively pursuing studies’ could be issued an exclusion order on the spot and removed from Canada. Anecdotally, I have heard individuals who have been removed the day of their attempted entry and asked to buy a ticket to board a plane home.
From a procedural fairness perspective, it is my hope that CBSA adopts a policy that will require them to continue the investigation inland. I say this because my understanding of procedural fairness requires that an applicant is provided a meaningful opportunity to respond.
Without a full investigation of the school’s policies, of attendance records, and giving the student a chance to defend themselves in the event a designated learning institution says otherwise, I don’t think the opportunity to respond can be provided. A few hour examination is simply not enough.
Conclusion
Until IRCC comes up with clear policies communicated with CBSA Border Services Officers that apply the law, travelling during school time without a valid reason and valid evidence is in my perspective, playing Russian roulette .
Based on StatsCan numbers, in 2015/2016, International Students to Canada pay on average $21,932 a year in tuition fees, compared to $6,191 a year paid by their domestic colleagues. I have heard in some circles, the talk of a “1 international student pays for 4 domestic students” a ratio that appears to be close to met based on these recent figures.
In order for an international student to even be determined to be financially sufficient for a study permit they must be able to cover the cost of first year tuition, the cost of housing, personal expenses, and transportation to and from Canada. They must also show that they have some potential plan in place to pay the remainder of the amount.
Accompanying spouses/dependents add additional monetary requirements to this calculation. Furthermore, different visa posts also carry different requirements ranging from being able to show the finances in a bank draft, a letter of financial support, and even prepaying tuition.
As shown by the ATIP results below from a (then Citizenship and Immigration Canada, now Immigration, Refugee and Citizenship Canada or “IRCC”), and likely still in effect – amounts proposed to be earned through work by the applicant or accompanied spouse is not to be taken into account in the calculation.
If we look at just the baseline number as provided by IRCC”s program delivery guides on study permit financial sufficiency we find a very troubling fact.
In order to have sufficient financial resources, the international student student must be able to pay the cost of first year tuition (let’s put it at the average of $21k).
They must also pay the cost of living expenses, which IRCC has tagged at:
This does not, from my understand, include rent – which itself in several cities can add up to about $20,000 to 24,000 a year.
Total, a single student would be expected to have $51k (21 + 10 + 20) in currently available, liquid funds in order to study in Canada for one year.
Whether these requirements are actually strictly enforced at overseas visa offices is a question that must be looked into further. Yet, I question whether requiring $51k from an international student (currently close to the annualized living wage amount ($20.68/hr) for a family of four from Vancouver) is setting an unrealistically high barrier to Canadian education. Is it also in so doing creating unintended policy consequences?
With that amount required, it is both not a surprise that those who can afford to study in cities such as Vancouver must be supported by their parents, who themselves must by extension be financially well-off. While such a link has not yet been drawn, I would argue that international students factor prominently into the discussion of foreign ownership in the city of Vancouver, a link that has been overlooked due to the often complex arrangement in which houses are bought and rented, and statistics gathered and tracked.
I also think that the high financial requirements for study permit holders and the deisre of several international students to come into Canada at all costs (think IRCC’s 7% of high risk students), have led several Designated Learning Institutions to shift their primary focus away from ensuring that international students are “actively-pursuing studies.”
Spots in these institutions are filled by those who can pay and those who can arrange (third-party, unlicensed agencies) rather than by merit. Often times these students either fail their courses or end up being removed/leaving Canada, their pathway to any future marred by their poor grades and lack of a concrete study plan.
All this to say, I think if we make entry into Canada’s international student population more merit-based, more based on a required comprehensive study plan, we can encourage candidates that will be better permanent residents and whom Canada can invest in to gain long-term benefits.
Another barrier right now, is that students are encouraged in their study permit applications to prove they are a “temporary resident” and will “leave at the end of their authorized stay.” Perhaps our model should be switched to requiring students to demonstrate lower finances, but a higher desire to come to Canada for more than just a short-term purpose. Perhaps, we should ask international students to declare up-front whether they intend to stay for a short-term and return to studies in their home country, or if not, plan an educational strategy to become a permanent resident.
I think the Labour Market Impact Assessment “Transition Plan” provides a model that I would like to see implemented for international students. We can do this with corresponding policies that make it easier for international students to eventually become permanent residents, as this government has promised. I can even forsee a student who has followed through their Educational Transition Plan being awarded extra-points when they are applying for Express Entry down the road.
A lot of options, but one barrier remains requiring the student to be wealthy. I never had those finances growing up, and in fact, to generalize, those of my colleagues who were most successful in university came from quite middle-class households, where the family income for a family of four was around 50k. While times of changed, I think if we are more flexible with funding arrangements, we can attract more working class individuals and families who through Canadian education can transition become our future Canadian citizens.
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.
