Volume 14, No. 1
January / Janvier 2012
IMMIGRANT STUDENTS: RECENT CASES
By Leslie H. Morley*
STUDY PERMIT – INTENTION TO LEAVE CANADA AND DUAL INTENT – JUDICIAL
REVIEW DENIED – (June 15, 2011) Madam Justice Bedard: Ms. Loveridge applied for a
study permit, noting in what she called a “motivation letter”, which was intended to support the
application, that she wished to “start a fresh life in Canada” where she would be happier and
there would be better job prospects. She also noted in the letter that she would return to her
country of origin, where her family and friends lived. The Visa Officer refused the application
on the basis that the Applicant had not “demonstrated sufficient ties” to that country, as she and
her husband had difficulty establishing themselves there, did not own property there, and had
provided vague documentation respecting their financial assets there.
The court stated that the question of whether or not an applicant will leave Canada by the end of
the period authorized for his or her stay is a question of fact to be reviewed against the
reasonableness standard. The motivation letter was found to be “contradictory and unclear”. As
the Applicant had the burden pursuant to paragraph 20(1)(b) of the Immigration and Refugee
Protection Act and paragraph 216(1)(b) of the Immigration and Refugee Protection Regulations
to establish that she would leave Canada at the end of her study period, the court concluded that
the Visa Officer’s decision fell within the range of possible, acceptable outcomes, and was
reasonable.
Melanie Loveridge v. Canada (Minister of Citizenship and Immigration) 2011 FC 694
DEPENDENT CHILD – REQUIREMENT FOR CONTINUOUS ENROLMENT IN AND
ATTENDENCE AT AN ACCREDITED POST-SECONDARY INSTITUTION – JUDICIAL
REVIEW GRANTED – (June 15, 2011) Mr. Justice Campbell: Mr. Gnanaseelan, a
Convention Refugee and an applicant for permanent residence, requested that his son be landed
as a dependent child. The Visa Officer determined that the son had not been studying full-time
since attaining the age of 22 as, after turning 22, he enrolled himself in a distance education
Bachelor of Science program. The Visa Officer determined that persons studying privately or
through correspondence are not deemed to be in full-time attendance, and therefore the son had
not been actively pursuing a course of academic, professional or vocational training on a fulltime basis.
The court concluded that there was no evidence on the record that the distance education
program offered education by “correspondence”, or defining the meaning of the word
“correspondence” and that, as a consequence, the decision of the Visa Officer was unreasonable.
Durairatnam Gnanaseelan v. Canada (Minister of Citizenship and Immigration) 2011 FC
704
STUDY PERMIT – REQUIREMENT FOR OPPORTUNITY TO RESPOND TO
EXTRINSIC EVIDENCE – REQUIREMENT FOR REASONS FOR DEPARTING FROM
PREVIOUSDECISIONS – JUDICIAL REVIEW GRANTED – (April 28, 2011) Mr. Justice
Harrington: The applicant was “on-again, off-again, somewhat indifferent student” over a
period of several years. He applied to renew his status from outside Canada, and was refused
twice because the officer was not satisfied that the applicant was an “intending temporary
resident to Canada” nor, based on his academic performance, “a bona fide student”. The officer
also noted that the applicant’s younger brother was in Canada on a study permit, his mother was
here as his guardian, and his sister and her husband had claimed refugee status in Canada.
The court found the officer’s decision to be “capricious and procedurally unfair”, as the
applicant’s marks had improved since study permits were previously issued, and there was no
evidence that the applicant knew about his sister’s refugee claim.
Zeferino Joseph Pena Torres v. Canada (Minister of Citizenship and Immigration) 2011
FC 500
STUDY PERMIT – PRINCIPLES OF PROCEDURAL FAIRNESS - JUDICIAL REVIEW
GRANTED – (February 24, 2011) Mr. Justice O'Keefe: The applicant held a study permit
that was renewed. Her graduation was postponed because her academic performance did not
meet the necessary standard. An application for a post-graduation work permit was submitted
but returned for insufficient fees, and so an application for restoration of status was filed.
The application was refused as being out of time; because the officer was not convinced that the
applicant was a genuine student; because the officer had concerns about the credibility of
graduation documents, which had conflicting graduation dates; and because the officer was not
convinced that the applicant met the requirements of the Act or Regulations.
In granting judicial review the court reviewed the principles respecting the requirements of
procedural fairness, to wit:
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“An officer is not under a duty to inform the applicant about any concerns regarding the
application which arise directly from the requirements of the legislation or regulations”;
The onus is on applicants to satisfy the officer that all requirements of the application are
met, and the officer is not under an obligation to ask for additional information if the
material filed is insufficient; and
An officer is obliged to inform the applicants of any concerns related to the veracity of
documents filed and, thereafter, to make further inquiries.
As the officer rejected the application based on a determination that the documents filed lacked
credibility, an interview should have been held and an opportunity to address the concerns
should have been provided.
Harjit Kaur v. Canada (Minister of Citizenship and Immigration) 2011 FC 219
STUDY PERMIT – REMEDIES - JUDICIAL REVIEW GRANTED – (January 12, 2011)
Madam Justice Snider: The 28-year-old applicant applied for a study permit to attend an
eight-month program. The application was refused because the officer concluded the applicant
was not personally established as she required the assistance of her uncle to pay for her studies,
as she waited until later in her career to study abroad, and as she was not a genuine student, but
was using the process to gain access to Canada.
The applicant applied for judicial review of the refusal, requesting the decision be quashed, but
also requesting various other relief including an order “that the respondent shall adopt nonarbitrary and unbiased criteria for evaluation” of student visas, and “adopt procedures to ensure
that the decision making process is free of ethnic and religious bias”; that the respondent “not
permit the opinions or advice of locally engaged staff, with respect to the authenticity of a visa
application, be relied upon by any designated decision maker”; and that the respondent not be
permitted to “deface” passports. In support of this relief the applicant made allegations against
the officer of perjury, contempt of court and “criminal activity”.
The respondent conceded that the evidence before the officer was misapprehended. In quashing
the officer’s decision, Madam Justice Snider noted that the usual remedy granted to a successful
applicant in immigration proceedings is an order for redetermination by a different decisionmaker, although in exceptional circumstances special directions may be provided. Here the
usual remedy was not possible as the underlying application requested a study permit for a
specific time period already expired.
The court noted that there is a “strong presumption that visa officers will follow the law”, that
there was no evidentiary foundation for much of the extraordinary relief requested, and declined
to grant it as to do would be unnecessary or contrary to the existing jurisprudence. The court
also noted that “serious allegations that could reflect on the reputation of the Officer should not
be made except with the clearest evidentiary record to substantiate them”, and considered
awarding costs against the applicant’s counsel, ultimately electing not to do so as they had not
been requested.
Should the applicant re-apply for a study permit, upon request of the applicant the court required
that the application be determined by a different officer, that the documents from the refused
application be considered to form part of the re-application record and that no fees be assessed
for the re-consideration.
Isuruni Mercy Eranga Premaratne v. Canada (Minister of Citizenship and Immigration)
2011 FC 30
STUDY PERMIT – ERRONEOUS FINDINGS OF FACT – REQUIREMENT OF
MATERIALITY – JUDICIAL REVIEW DENIED – (December 22, 2010) Mr. Justice
Kelen: The applicant was issued a study permit that was twice extended. While studying in
Canada the applicant was put on academic probation and had a number of encounters with the
law including some that resulted in charges that were ultimately stayed, withdrawn or pending.
The applicant admitted he had missed a court date, and provided no evidence to confirm that he
had addressed this issue. An application for restoration of the study permit filed within time
limits was refused as, on the basis of the materials filed and the answers to questions at an
interview, the officer did not believe that the applicant was a “bona fide student”.
It was cited by the officer as being significant that the applicant was supported by his overseas
family, that he had gang associations, that he smoked marihuana and that he was dishonest in
answering a question in the application. The officer concluded that studies did not appear to be a
priority for the applicant; that the applicant’s answers in the interview suggested that he would
not comply with relevant legislation; and that the applicant was not credible in his explanations.
In his application for judicial review of the officer’s decision the applicant alleged the officer
made her decision on the basis of erroneous finding of facts made in a perverse and capricious
manner or without regard to the materials before her. The applicant stated the officer was
mistaken in concluding that the applicant had “failed out” of his academic program as he had in
fact been rehabilitated academically, and was also mistaken in concluding that the applicant had
pleaded guilty to possession of cocaine when, in fact, the charge had been stayed.
In refusing the application for judicial review Mr. Justice Kelen stated that, while the officer may
have used the wrong terms in reference to the applicant’s academic history, the factual basis for
the officer’s decision was sound and reasonably open to her. The court concluded that the
mischaracterization of the disposition of the cocaine possession charge did not “materially
impact the decision”. There was no evidence the decision was made in a perverse or capricious
manner. It was reasonably open to the officer, who considered the applicant’s explanations, but
was not persuaded to grant restoration on a balance of possibilities.
Kwaku Amkye Banful v. Canada (Minister of Citizenship and Immigration) 2010 FC
1321
STUDY PERMIT – REASONABLENESS STANDARD FOR ASSESSMENT OF
EVIDENCE AND EXERCISE OF DISCRETION - JUDICIAL REVIEW DENIED –
(September 16, 2010) Madam Justice Heneghan: The applicant was accepted in an ESL
course, to be followed by a two-year business accounting program. An application for a study
permit was refused on the basis that the officer was not satisfied the applicant would leave at the
conclusion of her term of studies, based on the materials filed and the answers to questions asked
in a personal interview.
In refusing the application for judicial review of the officer’s decision, Madam Justice Heneghan
concluded that the decision was reasonable given the applicant’s statements about her aunt’s
wish that the applicant work in her restaurant to repay financial support the aunt would provide,
even though the applicant argued that no opportunity to address these concerns was given.
Thiraphon Phathong v. Canada (Minister of Citizenship and Immigration) 2010 FC 927
STUDY PERMIT – IMPLICATIONS OF REFUSAL OF PERMANENT RESIDENCY
APPLICATION – RELIANCE ON EXTRINSIC INFORMATION - FAILURE OF OFFICER
TO PROVIDE OPPORTUNITY TO RESPOND – JUDICIAL REVIEW GRANTED – (May
13, 2010) Mr. Justice Mainville: The applicant entered Canada with a visitor’s visa which
was renewed. She later obtained a study permit that was extended over a term of four years and,
thereafter, she obtained a work permit. She then applied unsuccessfully for landing as a live-in
caregiver. Her subsequent application for a study permit was refused on the basis that she did
not establish that she would leave Canada at the end of her term of study. The officer noted there
was no proof the applicant had completed the studies for which she had previously had
authorization, that her application for permanent residency had been refused, and that she had
been in Canada a long time. As a consequence, the officer was not satisfied that the applicant
would leave Canada by the expiry of the permit because her intentions were not of a temporary
nature.
Case law was cited to the effect that an officer’s decision to refuse a study permit application
usually involves questions of fact for which a standard of deference applies, but where a
procedural fairness or natural justice issue is raised, correctness is the applicable standard.
In granting the application for judicial review Mr. Justice Mainville stated “it is important not to
confuse an intention to become a permanent resident with the requirement of establishing that the
applicant will leave Canada at the end of the study period”. To do so in the absence of other
evidence is to draw an inference contrary to the clear dual intent provisions in subsection 22(2)
of the Immigration and Refugee Protection Act.
Also, as there was no evidence of past compliance issues it was incumbent on the officer to
inform the applicant of the officer’s concerns and give her an opportunity to respond because this
was not a case where the concerns related to the materials filed, but rather with past permits and
applications. The court returned the application to another decision-maker for redetermination,
advising the applicant that she is “now well advised that she must address these concerns with
this new officer”.
Kang Eun Gu v. Canada (Minister of Citizenship and Immigration) 2010 FC 522
STUDY PERMIT – ADEQUACY OF REASONS – IGNORING RELEVANT FACTS –
JUDICIAL REVIEW GRANTED – (November 17, 2009) Mr. Justice Harrington: An
unmarried, childless woman in her twenties was befriended by a Canadian, and thereafter twice
applied to Canada to become a live-in caregiver for a relative of the friend and was rejected both
times. Her third application, this one for a permit to study in French, was rejected. She admitted
her long-term goal of ultimately applying for a work permit as a live-in caregiver. She was
rejected because the visa officer was not satisfied the applicant had “financial wherewithal” or
would leave Canada when the permit expired.
The notes of the Officer, obtained after leave was granted, revealed that the intention had been to
reject the applicant on the latter ground only, the box respecting adequacy of finances box on the
decision form having been mistakenly checked, a fact the court concluded indicated “a lack of
attention to detail”. The notes also revealed the officer was suspicious that the applicant might
work without authorization to do so.
In granting judicial review Mr. Justice Harrington stated “”it is true that the burden is upon the
applicant to satisfy the officer, but there are some officers who simply will not be satisfied, no
matter what”. He noted that the factors in favour of granting the permit, such as the family ties
that the applicant had in her country and the fact that she had “played by the rules”, were
ignored. The “officer’s suspicions were not based on reasonable inferences drawn from the
known facts, and so the decision was unreasonable” and had “no objective basis”.
Graciela Serrudo Sempertegui v. Canada (Minister of Citizenship and Immigration)
2009 FC 1176
* Leslie H. Morley is the editor of Crossing the Line. He practices immigration law in Kingston, Ontario
and may be reached at [email protected].