Hello, VIB blog readers:
It has been too long. I recently came back from meandering streets and towns of Cuba. I had an incredible time and needed the break. I’m back (a little sick from a sunset ocean swim) but motivated. Unfortunately, I have been spending most of my time writing conference papers which has mean less time blogging.
Today’s blog will be short, sweet, but important. Increasingly, as the Federal Court has pivoted towards the position that procedural fairness (i.e. a PFL) is needed where there are concerns over the bona fides of a study permit application, refusals are more likely going to come on concerns the Applicant will not leave Canada at the end of their authorized stay. Even on those grounds, with a lack of travel history being continually re-enforced as, at most a neutral factor (see e.g. Justice Ahmed’s comments in Adom v Canada (Citizenship and Immigration), 2019 FC 26 http://canlii.ca/t/hwx6m at para 15), there are becoming fewer and fewer ways for IRCC to actually substantiate that an individual will not leave Canada at the end of their authorized stay.
One of the common ways Officers wish to do this is by highlighting family ties as a reason for refusal. Argument is that because an individual has family in Canada (either other family members or relatives on permits, as permanent residents, or citizens) that they will not leave Canada. This can also be demonstrated by showing the Applicant is not leaving or leaving limited family members behind in their country of origin/residence.
One way this is often addressed in the context of someone visiting their Canadian spouse (for example) is to put in a dual intention argument.
I have written previously on the need to exercise caution when claiming dual intention, especially when there is not a clear or immediate pathway to permanent residence for international students.
Exercise Caution When Claiming Dual Intent on Study Permit Applications – International Students
Dual intent is an important and increasing oft-used provision of the Immigration and Refugee Protection Act (“IRPA”) particularly for those applicants who straddle the pathway between temporary and permanent residence. I previously wrote about this concept more than four years ago with respect to a Federal Court case I was involved with called Jewell.
The Law
Section 22(2) of IRPA sets out:
Temporary resident
22 (1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b), is not inadmissible and is not the subject of a declaration made under subsection 22.1(1).
Marginal note: Dual intent
(2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.
Is Dual Intention Applicable to Study Permit Applications? Is it Over-relied Upon?
Dual intent seems naturally applicable in the context of a spouse who seeks a visa or temporary entry into Canada while a permanent residence application is in process or a foreign worker seeking to extend a temporary work permit while awaiting an Application for Permanent Residence based on an Express Entry Application or Provincial Nomination Program nomination.
Recently in reviewing study permit applications made by international students, including those prepared by prominent and experienced authorized representatives, I realized that dual intention was being heavily relied on. Indeed, Minister Hussen in several speeches given last year about international students, seemed to suggest that it was no inappropriate for students to enter Canada with an ambition to eventually become permanent residents.
However, in this piece, I want to put a cautionary tale on the application of dual intention when the future intention (permanent residence) is years away and argue that any submissions on study permit applications should focus instead on future immigration compliance and strengthened/remaining ties to the country of citizenship and or permanent residence (if not Canada). I also believe that much of our over-focus on dual intention can also be inadvertently created by our own pathwaying (as representatives) of the permanent residence process.
IRCC’s Program Delivery Instructions on Dual Intention
IRCC has published instructions (as of the date of this post, last modified in March 2019). These instructions are quite detailed and worth a detailed read.
While the instructions set out it is not impermissible to have two intentions (one permanent and one temporary) and that it cannot be a standalone basis for refusal. The section titled ‘Example of a case for refusal‘ sheds important light on the concept, especially in the study permit concept.
The instructions state:
An applicant for a work or study permit who indicates that they have no intention of leaving Canada has demonstrated only a single intent – permanent residence. Their application would be refused, even if the applicant might subsequently qualify for the Canadian experience class (CEC) or the Provincial Nominee Program (PNP). This is because the applicant has shown that they would not respect the terms and conditions of temporary residence, should they not qualify for permanent residence.
Section R179 is balanced by the flexibility of subsection A22(2), which allows the officer to consider an applicant’s intent in relation to the particular circumstances of the application. For example: an applicant for a study permit who may qualify for the CEC in 3 years has a different set of circumstances from that of a provincial nominee whose application is near completion and who applies for a work permit, with the support of the province, due to an urgent need for their services. Please note that all applications should be assessed on their individual merits.
(emphasis added)
The very examples provided by IRCC about when refusing an applicant may be appropriate focus on the international study permit applicant who is not eligible for permanent residency at the time of their application. Furthermore, these instructions seem to suggest intent (where absent) can be imputed.
Therefore, even if the facts are presented in a balanced way – for example, half the family is in Canada vs. half the family is in the country
I am still debating whether I am of this opinion, as there has been some recent positive case law (see: Bteich v Canada (Citizenship and Immigration), 2019 FC 1230 http://canlii.ca/t/j2kzr). My opinion has shifted in that I do think a case-by-case assessment should take place. I will address this case below.
Addressing Family Ties
In the section that follows I want to highlight a few strong cases from the Applicant’s side before looking at one case that the Department of Justice may lean on.
In the aforementioned, Bteich v Canada (Citizenship and Immigration), 2019 FC 1230 http://canlii.ca/t/j2kzr, Mr. B, a resident of Lebanon was applying for a study permit. His immediate family (parents) were in Canada on valid work permits and her three sisters were pursuing education in Quebec. He was admitted into the University of Montreal.
One of the major reasons he was denied was that he had strong family ties in Canada and the Officer had concerns that the Applicant would be coming to Canada for reasons other than those stated in his application (at para 10).
In assessing family ties, Justice Shore highlighted the Applicant’s arguments (which were well made, I might add):
[12] The Applicant submits that it was unreasonable for the Officer to consider the parents’ lawful status in Canada as a negative factor. In support of this submission, the Applicant refers to the Minister’s Operational Instructions and Guidelines (OP-11 Guidelines, at page 13) which suggest a favourable consideration of family members with lawful status and stable employment in Canada.
[13] The Applicant further argues that the Officer made an arbitrary decision based on unintelligible reasons when he failed to justify how the legal presence of the Applicant’s parents in Canada warranted a negative consideration.
[14] The Applicant also submits that the Officer failed to consider that the presence of the parents with valid work permits would likely ensure that the Applicant has sufficient financial support (Girn v Canada (Citizenship and Immigration), 2015 FC 1222 at para 32; Tavakoli Dinani v Canada (Citizenship and Immigration), 2012 FC 1063 at para 27; Demyati, above, at para 11).
[15] In drawing a negative inference from the parents’ status in Canada, the Officer also failed to consider that the Applicant may have a legitimate dual intent, as permitted by the IRPA at subsection 22(2).
Justice Shore highlighted in analysis that the simple tying in of strong family ties to an individual remaining illegally was an unreasonable inference:
(2) The Officer acted without regard to the evidence of the Applicant’s current studies
[33] The IRPA explicitly provides for the possibility of having a dual intent:
22 (2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.
[34] In this case at hand, the Applicant has strong ties in Canada with well-established and legally established members of his family. This Court agrees with the Applicant’s submissions as summarized above at paragraphs 12 to 15: the Officer should not have drawn negative inferences from the Applicant’s family ties in Canada. If anything, the Officer should have considered the financial support the Applicant’s family provides as a positive factor. At the very least, the Officer should have justified his/her reasoning: it is unreasonable to infer that Applicant will remain in the country illegally simply because he has strong family ties in Canada.
As set out in the beginning of the decision, in overview:
[2] In this case at hand, the Applicant has strong ties in Canada with well-established and legally established members of his family. This Court agrees with the Applicant’s submissions as summarized below at paragraphs 12 to 15: the Officer should not have drawn negative inferences from the Applicant’s family ties in Canada. If anything, the Officer should have considered the financial support the Applicant’s family provides as a positive factor. At the very least, the Officer should have justified his/her reasoning: it is unreasonable to infer that Applicant will remain in the country illegally simply because he has strong family ties in Canada.
Bteich reminds us to actually present and assess the family members in Canada, where they have status and where they are of financial support to the Applicant’s proposed studies. If there is concerns that the Officer will speculate on this tie, it may be worthwhile to highlight Justice Shore’s reasoning.
In Gauthier v. Canada (Citizenship and Immigration), 2019 FC 1211 (CanLII), <http://canlii.ca/t/j2sgg>, Justice Shore again raises a strong argument that family ties are at the heart of individual lives, but that it is not enough to simply consider it a risk of an individual not leaving Canada. In finding the refusal of a Haitian national applicant with a sister in Canada unreasonable, Justice Shore writes:
[18] To arrive at his findings, the immigration officer was entitled to consider all of the factors—including family-related factors—that could prompt the applicant to stay or not to stay in Canada at the end of her study permit. Since family lies at the heart of our lives, it is an important element in the determination of place of residence. It was therefore reasonable for the immigration officer to consider the applicant’s family ties as a “pull factor”
.
[19] However, in conducting this analysis, the immigration officer placed an unreasonable emphasis on this personal factor. Admittedly, the evidence on the record shows that her sister is in Canada and is prepared to host her; however, it cannot be concluded that the applicant is necessarily at risk of not leaving Canada at the end of her study permit.
Finally, in Peiro v. Canada (Citizenship and Immigration), 2019 FC 1146 (CanLII), <http://canlii.ca/t/j2fsr>, Justice Manson examined a refusal where the Officer highlighted the Applicant’s brother, an international student in Canada, and determined it created strong family ties in Canada, even though the remainder of the family was Iran.
1. Family Ties
[18] Based on the record, the Applicant’s only family in Canada is his younger brother, who is currently an international student in Vancouver. The Applicant’s parents remain in Iran.
[19] The Minister argues that the Applicant is a single adult male with no spouse or dependants in Iran, and the record states that the Applicant was responsible for caring for his brother in Canada. The record is silent on the Applicant’s brother’s permit status, but as he is an international student, his stay in Canada is temporary.
[20] The Officer’s reasons with respect to family ties provide no reasonable basis for his position. While the officer mentioned family ties, he did not explain how the temporary presence of the Applicant’s brother in Vancouver would outweigh the Applicant’s family ties to Iran, which include his parents and family business which he intends on returning to after his studies.
Again this case suggests that parsing out as well who has status in what country in addition to simply indicating their names is important. I suggest letters of explanation and support where pertinent as well copies of identification (passport bio-data pages, and permits). One thing I have been doing more of is having the family members inside and outside Canada writing with assurances of compliance.
A recent case you will likely see the Minister rely on is the case of Hajiyeva v. Canada (Citizenship and Immigration), 2020 FC 71 (CanLII), <http://canlii.ca/t/j4vm2>
In the case of Ms. Hajiyeva, as is the case with many potential international students, she sought to come to Canada alongside her spouse and children.
Justice Diner writes:
[5] Ms. Hajiyeva argues that the Officer ignored evidence, and failed to provide adequate reasons relying on Omijie v Canada (Citizenship and Immigration), 2018 FC 878, at para 26 [Omijie]. I find, however, that this case differs from Omijie. First, while the Applicant’s parents and brother would remain in Azerbaijan, her immediate family (husband and children) would join her in Canada; she indicated her husband would obtain a work permit and gain international work experience, and her children would attend school and be exposed to Canadian values. The Officer’s finding regarding her incentives to remain in Canada were reasonable. Here, the finding that her evidence and supporting documentation fell short of demonstrating that she would leave Canada at the end of her study period was open to the Officer.
In cases such as these, there may simply be no way to overcome the pure mathematics of the family members (and their closeness) vis-a-vis the plan and the country of origin. That being said, one might need to be a bit cautious in seemingly explaining the family’s plans to ‘settle’ in Canada (as workers and students) and how that may detract from both the study plan but also create the reasonableness of an intention to immigrate or stay permanently (especially if no dual intention is otherwise claimed).
Post-Script Note
I will be in Montreal from April 2nd to 4th including a panel on April 3rd on study permits.
See: http://cba.org/Immigration-Law-Conference/Agenda/5B
I look forward to seeing you there and dorking out on study permits.
