Restoration

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Dear IRCC: Requesting Uploaded Non-Refundable Plane Tickets for Refused Extension Applications Is Not The Way To Go

I apologize folks. I’m in the middle of a transition (starting my own Firm in February – more details about this later). I’ve also engaged an entire revamp of this blog, which will be releasing as well. I’m supposed to be on hiatus. However, something shared by one of my colleagues has had me spring into action. IRCC: this move is wrong, not procedurally fair, and has disasterous consequences for access to justice.

What am I talking about? Check out the screen shot below.

Dear IRCC:

While it is clear the Government has been pushing to make the restoration process more difficult (trying to limit it to only statuses previously held), it behooves procedural fairness that rather than informing applicants of their statutory option to pursue restoration within 90 days they are telling applicants to leave and provide proof that they are leaving.

There is also no transparency on how to challenge a decision like this. What if an individually legitimately was refused due to missing documentation or a technical issue and has a strong argument for restoration? Do they apply for restoration? What happens if they ignore this request to upload proof. Does CBSA show up before they are able to confirm their restoration has been approved? [The fact we are removing individuals during a pandemic is another bone – but I’ll pick it some other time].

I would argue that this has the most immediate and harmful impacts on those who are unrepresented. As counsel, at least I can seek clarification and know how to navigate restoration to immediately submit an application and perhaps inform IRCC. A self-represented applicant, with no public facing knowledge of the process having provided by IRCC, will not know what to do. I fear that for the international students who I’ve seen this sent to, this can lead to harmful decisions. I’ve been in too many cases where international students were afraid to tell their parents, going so far as trying to leave to a third country to avoid letting their major educational funder parents know.

Importantly, this action breaches procedural fairness. Indeed, I think the Government needs to be enjoined from prematurely requesting something and shielding the fact an alternative remedy is not on available but statutorily provided. This type of action utilizes policy to try and shield the protections provided by law and is inconsistent with the rule of law and due process.

I call on the Government to stop issuing these letters to applicants who receive temporary resident extension refusals and in fact all refusal letters. Go back to informing these individuals that they have the ability to apply for restoration within 90 days. Suspend removals, especially now that there are programs being rolled out to help restore those who have lost status and given them an extended time to do so. This type of letter contracts the generosity through policy that has been provided (see: here).

In the interim, we need transparency:

  1. Who is this being sent to?
  2. Is it just for citizens of certain countries?
  3. Why is it not being limited to cases where individuals are truly out of status without access to restoration?
  4. Where are the public instructions on how to respond to something like this?

Sincerely.

Will

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Restoration Problems – Studies to Begin at a Later Date

I wanted to share a recent response to an inquiry I was provided CIC and why I think it creates unreasonableness – call it reasonableness in the unreasonableness.

Here is the scenario. For whatever reason, your client’s Application for a Post-Graduate Work Permit is refused or never submitted. The client’s study permit has also expired. The 90-day after meeting graduation requirement period in which to apply for a Post-Graduate Work Permit has also lapsed. Restoration is the only option. The restoration date is calculated either 90 days from the expiry of your status (in the event an extension/work permit application was never submitted) or 90 days after you receive a refusal of your application (in the event an extension/work permit application was submitted).

Let us also assume that it is now September. Fall program registration has ended. The program you are interested in starts in the  New Year.

My question was below:

Question:

I have a general question about restoration of student permits for studies to begin at a later date.

Individuals who have their post-graduate work permit (PGWP) applications refused and are no longer eligible for a PGWP due to expired study permits and passage of time have the option to restore their status (in-Canada) as a student on the basis of a student permit extension, which itself is based on a new offer of acceptance.

However if the offer of acceptance is for studies to begin at a later date (i.e. a later semester) is it possible to have a student stay in Canada on a study permit, on deferred enrollment, while not actively pursuing studies for that period of time?

I was unable to find the answer to this on CIC’s available material on study permits and the new study permit rules.

Response:

The determination of whether or not a study permit can be issued for individuals who have applied for a restoration of status with a letter of acceptance for a program expected to commence on a date in the future (e.g. a later semester), rests with the officer assessing the application. It may be determined that a study permit can be issued based on the date the program is expected to commence, or the study permit may be denied because the period of time before the program commences is not considered reasonable. If the study permit is denied the individual must leave Canada and can apply for a study permit at a later date.

The students who have lost their status may also apply for a restoration of status as a visitor. If the restoration of status is approved the individual could remain in Canada, however, they will not be authorized to study, and will still be required to apply for a study permit outside of Canada a later date as per R213.

This is the particular section I have trouble with: “It may be determined that a study permit can be issued based on the date the program is expected to commence, or the study permit may be denied because the period of time before the program commences is not considered reasonable.”

With processing times for a restoration of status frankly “up in the air,” how does one time the restoration application? Without legislative guidance, what does “reasonable mean.” For me, reasonable is three months but for the Officer that may be unreasonable.

It will be interesting to see if there are any refusals from the application of this discretion. Would be fun to challenge this in the Federal Court.

 

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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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