Among a few frustrating trends, Immigration, Refugees and Citizenship Canada (“IRCC”) continues to refuse temporary resident applications (namely visitor visas and study permits) by single applicants, who are younger, and do not have spouses/dependent children. More often than not these individuals come from countries where there may be a presumption of a primarily (permanent) immigration intention or that dual intention arguments run up against evidence of a country’s instability. More often than not those that are refused on this ground are also women. This refusal reason is very common, for example from the visa office in the Middle East and Africa.
In this piece I’ll look at what Applicants can argue in response, what the Department of Justice (or “DOJ”)’s position is when responding on behalf of their clients, IRCC, and ultimately why this is a very worrisome ground of refusal moving forward.
A Flawed Finding That Often Lacks Legs
The argument that one can be refused simply for being ‘young, single, mobile, and without dependents‘ is not on solid ground based on numerous Federal Court decisions. In Iyiola v. Canada (Citizenship and Immigration), 2020 FC 324, Justice Fuhrer summarizes the case law on this point – particularly how finding a lack of dependents a negative factor, without further analysis, would preclude many students from eligibility.
[20] As noted above, the High Commission’s decision indicates concern that Mr. Iyiola may not leave Canada at the end of his authorized period of stay; Mr. Iyiola bore the onus of satisfying the visa officer in this regard: IRPA s 20(1)(b). Regarding Mr. Iyiola’s family ties in Canada and in Nigeria, he has five other family members in Nigeria, including his parents with whom he lives with, none of which was mentioned in the GCMS notes; given this, it would have been unreasonable without further analysis to presume an older brother in Canada would be a more significant pull factor: Obot v Canada (Citizenship and Immigration), 2012 FC 208 [Obot] at para 20. Accordingly, I find it unintelligible that there was no explanation whatsoever by the High Commission, nor by the visa officer in the GCMS notes, about the family ties in Nigeria and how these were assessed in the context of Mr. Iyiola’s family ties in Canada. Moreover, I agree with Justices Russell and Mosley that an applicant’s lack of a dependent spouse or children, without any further analysis [as in this case], should not be considered a negative factor on a study permit application; otherwise, this would preclude many students from being eligible: Onyeka, above at para 48; Obot, above at para 20.Finally, it is unintelligible in my view to construe a lack documented travel abroad in itself [and without something else, such as a negative travel history] as an indication that an individual will overstay their authorized time in Canada: Onyeka, above at para 48; Ogunfowora, above at para 42.
(emphasis added)
Iyiola
It is also worth revisiting both Onyeka v. Canada (Citizenship and Immigration), 2009 FC 336, and Obot v. Canada (Citizenship and Immigration), 2012 FC 208, both notably cases that also involved Nigerian study permit applicants refused on similar language.
In Onyeka, Justice Russell finds that the Officer in this matter does not tie together how a lack of dependents leads an individual to not leaving Canada at the end of their authorized stay. He writes:
[48] I can see some connection between being single and having no dependents and the issue of whether, under Regulation 216(1)(b), the Applicant will leave Canada at the end of the authorized period. These factors, however, merely place the Applicant in the position of most students applying for study permits. The Applicant has no family connections in Canada; his family is in the U.K. or Nigeria, and he has a highly responsible job in Nigeria. The Officer does give reasons – being single and having no dependents – but these reasons are hardly sufficient to amount to a reasonable exercise of discretion when the other factors are taken into account. There is simply nothing on the facts to suggest that the Applicant is not a bona fide student or that he would stay in Canada illegally at the end of the authorized period. See Ogbonnaya at paragraphs 16-17.
(emphasis added)
Onyeka at para 48.
In Obot v. Canada (Citizenship and Immigration), 2012 FC 208., Justice Mosley as finds not transparent, justifiable, or intelligible how family ties are assessed in the context a 25-year-old single applicant. He writes:
[20] With regards to the applicant’s ties to Nigeria, the officer’s reasons are not transparent, justified and intelligible. The applicant is 25 years old and a student, it is thus normal for him to have “no spouse, children or property” in Nigeria or anywhere else. Furthermore the officer did not consider that all of the applicant’s family lives in Nigeria and did not consider the strength of his ties to his family: Onyeka v Canada (Minister of Citizenship and Immigration), 2009 FC 336 at paras 21-22; Li v Canada (Minister of Citizenship and Immigration), 2008 FC 1284 at para 30; and Zhang v Canada (Minister of Citizenship and Immigration), 2003 FC 1493 at paras 21-22.
(emphasis added)
Obot at para 20.
In the recent decision Singh v Canada (Citizenship and Immigration), 2021 FC 691, the Officer refused the Applicant’s work permit application on the basis that her family ties suggest that she will not leave Canada at the end of her authorized stay, despite the Applicant’s evidence that she has no direct family ties in Canada. While is not a study permit case per se, it is very instructive. Justice Fuhrer (note: same decision maker as in Iyiola) states the following in Singh:
[5] Regarding the first ground of refusal, I find that the absence of any articulated reasons for the Officer’s determination that Mr. Singh would not leave Canada at the end of his stay because of family ties in Canada renders the decision unreasonable for lack of justification: Vavilov, above at para 86. In my view, it is clear on the face of the record, and the Respondent admitted in both written and oral submissions to the Court, that there is no evidence Mr. Singh has any family ties in Canada. To the contrary, Mr. Singh’s evidence is that his spouse, child and parents live in India. I add that it is not evident which country the Officer meant by “your country of residence,” whether the UAE, India, or another country.
[6] Nor is there any discussion at all in the brief Global Case Management System [GCMS] notes, which form part of the Officer’s reasons for refusing Mr. Singh’s work permit application, about his family. To be clear, my concern with the GCMS notes is not their length. Rather, the outcome of Mr. Singh’s application on this basis is at odds with the factual context, and is not supported by any reasons, let alone intelligible and rational reasoning: paraphrasing Vavilov, above at para 86. (Emphasis added)
Singh at paras 5-6.
With these several cases, it seems strong that if family ties are not analyzed beyond just mentioning the presence of a Canadian (or Canadian-based family member) that this will not be accepted by the Court. Yet, we have seen a pushback with the position Department of Justice is taking on several judicial reviews – attempting to justify the finding with their own (largely after the fact) factual analysis.
How the Department of Justice (Lawyers for IRCC) Counter
The DOJ, again even if it is not in the actual findings of the Officer, will respond to judicial reviews by arguing two fold (1) that the evidence provided by the applicant was insufficient and therefore the concern was not credibility (requiring further information requests etc.) and that the onus that the applicant would leave Canada was not met; and (2) try to piece together the applicant’s biographical history to muddy the waters of what may appear to be a clear cut case with strong ties to the country of residence to try and accentuate push/pull factors.
A case they often cite is the 2013 decision of Babu v. Canada (Citizenship and Immigration), 2013 FC 690 (CanLII).
[19] Last, the applicant says that for two reasons the officer unreasonably discounted his family ties to Pakistan in arriving at the conclusion that he had not “demonstrated sufficient level of establishment or ties to Pakistan that would compel him to depart Canada within the period authorized.” First, as in Zhang v Canada (Minister of Citizenship and Immigration), 2003 FC 1493, Mr. Babu presented evidence that he and his family intended that he return to Pakistan upon completion of his studies. Second, as in Hara v Canada (Minister of Citizenship and Immigration), 2009 FC 263, all of Mr. Babu’s immediate family reside in Pakistan and he is expected to assume primary responsibility for his father’s affairs as the only son.
[20] It is not disputed that there were factors that weighed in favour of the view that he would return to Pakistan and thus ought to be granted the permit. However, one cannot point to isolated facts or factors which favoured the applicant to argue that the officer’s assessment was unreasonable; rather, the officer’s determination under paragraph 216(1)(b) must be examined in light of the whole record. In this case, there were factors weighing on both sides of the equation. On the negative side, Mr. Babu had not shown he was pursuing higher education in his chosen field in Pakistan and did not provide particularly convincing reasons why not; Mr. Babu had been working for more than three years but had low savings and no property; Mr. Babu was not married and did not have children, and was thus probably relatively portable; and the situation in Pakistan was admittedly relatively bleak for Hindus like Mr. Babu. On the positive side, Mr. Babu’s family expected him to return to Pakistan; Mr. Babu’s immediate family was in Pakistan; and Mr. Babu stated in a letter to his immigration representative and current counsel that he intended to return to Pakistan.
[21] The task of the visa officer under paragraph 216(1)(b) of the Regulations is such that the Court ought to provide a wide “margin of appreciation” for the conclusions reached under that provision. Moreover, the authority and role of this Court on judicial review under the reasonableness standard of review is not to step into an officer’s shoes to freshly weigh the evidence, but to ask whether the decision falls within the range of possible, acceptable outcomes based on the evidence and the law. The officer was not obliged to prefer Mr. Babu’s claim and his family’s expectation that he would return to Pakistan and not overstay his study permit, and was entitled to prefer the factors tending to show little incentive to return.
(emphasis added)
Another case that is cited by DOJ is a 2012 decision, also titled, Singh v. Canada (Citizenship and Immigration), 2012 FC 526 (CanLII). At paragraph 43, Justice Russell writes:
[43] ….For example, the Applicant points out that most students are single, have no dependents and are highly mobile. But this misses the point. The factors have to be looked at together and the Applicant’s youth and mobility, even if he shares them with other students, are obviously relevant. After all, young people do sometimes come to Canada on visas and then stay at the end of the terms.
(emphasis added)
As demonstrated in the two cases above, even though judicial review is technically speaking about reviewing the Officer’s reasonableness in rendering the decision, judges can and do get persuaded into also doing gap analysis in what the applicant did and could have provided.
Therefore, you will likely start to see the strategy for the Department of Justice to go about study permit refusals is for officers to highlight insufficiency of evidence in their refusal decisions.
It appears that right now this language is not carved into their prepared templates (more on this in my next blog post) but if officers start to use this language of insufficiency – making even just mere reference to the factual evidence, ties, and country conditions – you may find more judges siding on a decision’s reasonableness.
I do hope though that the Courts step in and weigh in to try and reduce this language in refusal letters, given how fundamentally unfair it is to the applicants who cannot (and should not) change their personal circumstances to fit an arbitrary standard.
Strategies to Engage in an Initial Application
So this begs the question: how does one engage on an initial application knowing this is a potential refusal reason? Someone who is ‘young, single, and mobile and without dependents’ cannot suddenly change this. Indeed, the corollary of being married, with a spouse seeking a permit, would open up an even more clear cut refusal line on family ties.
The strategy I employ, is to engage a broader set of evidence beyond just the single applicant and their statement of purpose. Build in a larger piece – if they are employed in their country of residence, have family there, or even have family in Canada but who will assist in compliance efforts – spell it out. Do not open up a decision for a finding of insufficienc of evidencey.
In Mekhissi v. Canada (Citizenship and Immigration), 2020 FC 230 (CanLII), Justice Pentney writes, in allowing the judicial review of a refused study permit application:
[17] The applicant notes, in particular, the following facts that are in the study visa application file, but that were not considered by the officer. First, the decision refers to the applicant’s family ties, but there is no mention of the fact that his parents have multiple entry visas (and therefore, they can visit Canada without any problems), or the fact that his brother had previously studied in Canada with a study visa, but that he left Canada at the end of the authorized period because his application for a post-graduation work permit was refused.
(emphasis added)
Especially when there is a clear cut family tie to Canada or if the applicant is applying from a country and with a factual matrix that gives rise to strong push factors (those factors that suggest an Applicant will want to leave their country for more than just a temporal purpose) and pull factors (those factors that suggest Canada as a destination of more than just a temporary intent), I tend to step up this evidence.
Who is Young, Single, Mobile, and Without Dependents?: The Need for an Intersectional Lens
From my experience, the language of ‘young, single, mobile, and without dependents‘ is also invariably gendered. I have seen, disproportionately so, the term used for single, younger, women applying to Canada temporarily. In this lens, such a finding could also be discriminatory and not aligned with Canadian Charter values such as age and gender discrimination (overtly) and race (by way of visa offices utilizing this language frequently).
I personally would love to see this language disappear from refusals, but at this stage, alongside purpose of visit, it is the kind of finding that easier to make without having to dig too far into the facts of the case. Again, as I set out earlier, one cannot merely change the fact they are young, single, and mobile in the same way an applicant can demonstrate stronger funds, improve their travel history, or even adjust their program of study to provide a more logical step.
Hopefully counsel start pushing back on the young, single, mobile, and without dependent classification in both submissions and in remedy seeking.
