{"id":9624,"date":"2023-04-11T10:28:12","date_gmt":"2023-04-11T17:28:12","guid":{"rendered":"https:\/\/heronlaw.ca\/discretion-still-exists-in-post-graduation-work-permits\/"},"modified":"2023-04-11T10:28:12","modified_gmt":"2023-04-11T17:28:12","slug":"discretion-still-exists-in-post-graduation-work-permits","status":"publish","type":"post","link":"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/","title":{"rendered":"Discretion still exists in Post Graduation Work Permits<\/u><\/strong>"},"content":{"rendered":"\n

They say you can\u2019t believe everything you read on the internet.<\/em><\/p>\n\n\n\n

By: Jessye Kilburn
April 11, 2023<\/p>\n\n\n\n

\"\"
Springtime means PGWP season is almost here.<\/em><\/figcaption><\/figure>\n\n\n\n

Let\u2019s say you\u2019re an international student who has been studying hard towards your degree and aiming to get a Post-Graduation Work Permit (PGWP) at the end of your studies. But, as you\u2019re about to graduate, you begin looking into PGWP eligibility and realize that you might not be eligible\u2014the Immigration, Refugees and Citizenship Canada (IRCC) website<\/a> says you need to have studied full time in all semesters other than your final semester or while on authorized leave. But maybe you were facing health issues, or maybe you had a loss in the family, and you had to take one part time semester in your second or third year. At the time, you were just trying to cope, and you had no idea this part time semester could prevent you from getting a PGWP down the road.<\/p>\n\n\n\n

Are you out of luck? Not necessarily.<\/p>\n\n\n\n

\"\"
Leeway: the sideways drift of a boat or aircraft; the freedom to move or act within certain limits.
Image: <\/em>Wikimedia Commons<\/em><\/a>.<\/em><\/figcaption><\/figure>\n\n\n\n

Immigration officers\u2019 discretion in PGWP applications<\/u><\/strong><\/p>\n\n\n\n

The official position is that discretion doesn\u2019t exist in PGWP applications. By \u201cdiscretion\u201d, in this context, I mean leeway for the officer to use their judgement<\/strong> and grant a PGWP if circumstances warrant\u2014even if all of the technical eligibility requirements are not met, such as the requirement to maintain full time studies other than the final semester or an authorized leave<\/a>.<\/p>\n\n\n\n

If you search CanLii<\/a>, Canada\u2019s online free database of legal decisions, you\u2019ll find many cases from the Federal Court saying that the PGWP eligibility requirements on IRCC\u2019s website are mandatory and must be \u201cstrictly applied\u201d. (For example, see the long list of cases cited in Idowu v. Canada (Citizenship and Immigration)<\/em>, 2022 FC 46<\/a> at paragraph 17).<\/p>\n\n\n\n

But the reality on the ground is that sometimes, as immigration practitioners, we do see students getting PGWPs without meeting mandatory requirements\u2014based on officers\u2019 discretion.<\/strong><\/p>\n\n\n\n

For example, a student may have taken a leave in the middle of their studies, which was unauthorized by their institution, or may have taken part-time studies outside of their last semester. These students may have had very good reasons for these decisions \u2013 a change in academic program, limited access to pre-requisite courses, financial issues, a loss in the family, health struggles, the list goes on.<\/p>\n\n\n\n

Officially, the online instructions and (most of) the recent case law doesn\u2019t leave room for these kinds of situations \u2013 meaning that there\u2019s technically no right to a PGWP if you were not studying full time in all semesters, other than during authorized leave or during your final semester of studies.<\/p>\n\n\n\n

Nonetheless, we sometimes see officers granting PGWPs to students in these types of situations, often based on strong submissions requesting discretion and showing \u2013 for example \u2013 that the student was very close <\/em>to meeting the technical requirements and that they were experiencing challenging circumstances beyond their control.<\/p>\n\n\n\n

What does this mean for applicants?<\/u><\/strong><\/p>\n\n\n\n

From an applicant\u2019s or practitioner\u2019s perspective, the implication is clear: ask for discretion if needed, and provide evidence of your intention and efforts to maintain full time student status. There are no guarantees that this will result in you getting a PGWP, but it may at least be worth a try.<\/p>\n\n\n\n

Always be mindful of the deadline for PGWP eligibility: \u201cApplicants must apply for a post-graduation work permit (PGWP) within 180 days of obtaining written confirmation, such as an official letter or transcript, from the designated learning institution (DLI) indicating that they have met the requirements for completing their program of study<\/a>.\u201d<\/p>\n\n\n\n

Unfortunately, sometimes students come to us with a PGWP refusal after <\/em>this 180-day deadline \u2013 at which point their options may be limited. (However, there may be the possibility of applying for a Temporary Resident Permit, a topic my colleague Katie Lay will cover in her blog post next week.)<\/p>\n\n\n\n

If you\u2019re graduating soon and want to apply for a PGWP, but you\u2019re worried that you might be ineligible, your best option would be to discuss the application with a professional as soon as possible<\/strong>, so that you can put your best foot forward with a request for discretion before the 180 days has expired.<\/p>\n\n\n\n

What does this mean in the bigger picture?<\/u><\/strong><\/p>\n\n\n\n

This issue deserves a longer analysis at some point, but for now, I\u2019ll say this.<\/p>\n\n\n\n

The Federal Court\u2019s role in reviewing immigration decisions is founded in what we call \u201cadministrative law\u201d, meaning judges with legal expertise taking a principled approach to reviewing the actions of administrative agencies (e.g. immigration or refugee decisions made by IRCC or the Immigration and Refugee Board).<\/p>\n\n\n\n

In law school, we learned that administrative law is fundamentally about ensuring the legitimate exercise of public power <\/strong>by governments. The Supreme Court has written that \u201cadministrative decision making [is] one of the principal manifestations of state power in the lives of Canadians<\/a>\u201d\u2014and of course, I would add, also in the lives of non-Canadians subject to Canadian immigration laws\u2014and that \u201cthe exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it<\/a>\u201d.<\/p>\n\n\n\n

Anyone who has tried to immigrate to Canada, or watched loved ones do so, knows that agencies like IRCC have huge and tangible power over individuals\u2019 lives. Administrative law\u2019s promise is that independent reviewing judges will ensure that power is being exercised reasonably and fairly.<\/strong><\/p>\n\n\n\n

The issue is this: if PGWP discretion exists, but IRCC and the Federal Court say it does not \u2013 how do we know the discretion is being exercised reasonably and fairly? How do we know for sure, beyond speculating, what factors are being considered? What if an officer decides to give leeway to one student and not another based on completely arbitrary (or worse, discriminatory) reasons?<\/p>\n\n\n\n

In a famous case from the 1950s called Roncarelli v. Duplessis<\/em><\/a>, the Supreme Court of Canada brought down the proverbial hammer on the Premier of Quebec for punitively cancelling someone\u2019s liquor license for illegitimate religious\/political reasons. Justice Ivan Rand\u2019s oft-quoted reasons emphasize the importance of the rule of law, even when a government agency is making discretionary decisions. \u201cDiscretion\u201d, wrote Justice Rand, \u201cnecessarily implies good faith in discharging public duty\u201d and is not \u201can unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute\u201d.<\/p>\n\n\n\n

I\u2019m not suggesting that immigration officers are intentionally making capricious decisions like in Roncarelli<\/em>. My issue is that we simply don\u2019t know<\/em> why, or how, officers are exercising their discretion on PGWP applications. <\/p>\n\n\n\n

My suggestion to IRCC would be this: set out some guidelines on discretionary exceptions to PGWP eligibility and what criteria officers ought to apply.<\/strong> This would allow a more open process, where applicants would know how their request for discretion is being assessed, and it would allow the Federal Court to meaningfully review whether discretion is being applied reasonably and fairly.<\/p>\n\n\n\n

On a human level<\/strong>, it\u2019s so important that hardworking international students are given a margin of flexibility to take a part time course load when they can show that they\u2019re facing challenging circumstances like a death in the family, mental health struggles, learning disabilities, medical conditions, pregnancy, pre-requisite constraints, or whatever else may come their way \u2013 without losing their hard-earned PGWP eligibility.<\/p>\n\n\n\n

For further reading: the Canadian Bar Association\u2019s Immigration Section made <\/em>recommendations<\/em><\/a> to the Minister of Immigration on this topic last fall.<\/em><\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

They say you can\u2019t believe everything you read on the i […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[423,424],"tags":[465,587,588,551,589],"yoast_head":"\nDiscretion still exists in Post Graduation Work Permits - Heron Law Offices<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/\" \/>\n<meta property=\"og:locale\" content=\"zh_CN\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Discretion still exists in Post Graduation Work Permits - Heron Law Offices\" \/>\n<meta property=\"og:description\" content=\"They say you can\u2019t believe everything you read on the i […]\" \/>\n<meta property=\"og:url\" content=\"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/\" \/>\n<meta property=\"og:site_name\" content=\"Heron Law Offices\" \/>\n<meta property=\"article:published_time\" content=\"2023-04-11T17:28:12+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/heronlaw.ca\/wp-content\/uploads\/2023\/04\/flowers-jessye-post.jpg\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"\u4f5c\u8005\" \/>\n\t<meta name=\"twitter:data1\" content=\"Will\" \/>\n\t<meta name=\"twitter:label2\" content=\"\u9884\u8ba1\u9605\u8bfb\u65f6\u95f4\" \/>\n\t<meta name=\"twitter:data2\" content=\"6\u5206\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"WebSite\",\"@id\":\"https:\/\/heronlaw.ca\/zh-hans\/#website\",\"url\":\"https:\/\/heronlaw.ca\/zh-hans\/\",\"name\":\"Heron Law Offices\",\"description\":\"Lawyers for Migrant Communities\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\/\/heronlaw.ca\/zh-hans\/?s={search_term_string}\"},\"query-input\":\"required name=search_term_string\"}],\"inLanguage\":\"zh-CN\"},{\"@type\":\"ImageObject\",\"@id\":\"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/#primaryimage\",\"inLanguage\":\"zh-CN\",\"url\":\"https:\/\/heronlaw.ca\/wp-content\/uploads\/2023\/04\/flowers-jessye-post.jpg\",\"contentUrl\":\"https:\/\/heronlaw.ca\/wp-content\/uploads\/2023\/04\/flowers-jessye-post.jpg\",\"width\":645,\"height\":860},{\"@type\":\"WebPage\",\"@id\":\"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/#webpage\",\"url\":\"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/\",\"name\":\"Discretion still exists in Post Graduation Work Permits - Heron Law Offices\",\"isPartOf\":{\"@id\":\"https:\/\/heronlaw.ca\/zh-hans\/#website\"},\"primaryImageOfPage\":{\"@id\":\"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/#primaryimage\"},\"datePublished\":\"2023-04-11T17:28:12+00:00\",\"dateModified\":\"2023-04-11T17:28:12+00:00\",\"author\":{\"@id\":\"https:\/\/heronlaw.ca\/zh-hans\/#\/schema\/person\/fc73772a23a553af03b6e79911d87544\"},\"breadcrumb\":{\"@id\":\"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/#breadcrumb\"},\"inLanguage\":\"zh-CN\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\/\/heronlaw.ca\/zh-hans\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Discretion still exists in Post Graduation Work Permits\"}]},{\"@type\":\"Person\",\"@id\":\"https:\/\/heronlaw.ca\/zh-hans\/#\/schema\/person\/fc73772a23a553af03b6e79911d87544\",\"name\":\"Will\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Discretion still exists in Post Graduation Work Permits - Heron Law Offices","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/","og_locale":"zh_CN","og_type":"article","og_title":"Discretion still exists in Post Graduation Work Permits - Heron Law Offices","og_description":"They say you can\u2019t believe everything you read on the i […]","og_url":"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/","og_site_name":"Heron Law Offices","article_published_time":"2023-04-11T17:28:12+00:00","og_image":[{"url":"https:\/\/heronlaw.ca\/wp-content\/uploads\/2023\/04\/flowers-jessye-post.jpg"}],"twitter_card":"summary_large_image","twitter_misc":{"\u4f5c\u8005":"Will","\u9884\u8ba1\u9605\u8bfb\u65f6\u95f4":"6\u5206"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"WebSite","@id":"https:\/\/heronlaw.ca\/zh-hans\/#website","url":"https:\/\/heronlaw.ca\/zh-hans\/","name":"Heron Law Offices","description":"Lawyers for Migrant Communities","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/heronlaw.ca\/zh-hans\/?s={search_term_string}"},"query-input":"required name=search_term_string"}],"inLanguage":"zh-CN"},{"@type":"ImageObject","@id":"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/#primaryimage","inLanguage":"zh-CN","url":"https:\/\/heronlaw.ca\/wp-content\/uploads\/2023\/04\/flowers-jessye-post.jpg","contentUrl":"https:\/\/heronlaw.ca\/wp-content\/uploads\/2023\/04\/flowers-jessye-post.jpg","width":645,"height":860},{"@type":"WebPage","@id":"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/#webpage","url":"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/","name":"Discretion still exists in Post Graduation Work Permits - Heron Law Offices","isPartOf":{"@id":"https:\/\/heronlaw.ca\/zh-hans\/#website"},"primaryImageOfPage":{"@id":"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/#primaryimage"},"datePublished":"2023-04-11T17:28:12+00:00","dateModified":"2023-04-11T17:28:12+00:00","author":{"@id":"https:\/\/heronlaw.ca\/zh-hans\/#\/schema\/person\/fc73772a23a553af03b6e79911d87544"},"breadcrumb":{"@id":"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/#breadcrumb"},"inLanguage":"zh-CN","potentialAction":[{"@type":"ReadAction","target":["https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/heronlaw.ca\/zh-hans\/discretion-still-exists-in-post-graduation-work-permits\/#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/heronlaw.ca\/zh-hans\/"},{"@type":"ListItem","position":2,"name":"Discretion still exists in Post Graduation Work Permits"}]},{"@type":"Person","@id":"https:\/\/heronlaw.ca\/zh-hans\/#\/schema\/person\/fc73772a23a553af03b6e79911d87544","name":"Will"}]}},"_links":{"self":[{"href":"https:\/\/heronlaw.ca\/zh-hans\/wp-json\/wp\/v2\/posts\/9624"}],"collection":[{"href":"https:\/\/heronlaw.ca\/zh-hans\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/heronlaw.ca\/zh-hans\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/heronlaw.ca\/zh-hans\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/heronlaw.ca\/zh-hans\/wp-json\/wp\/v2\/comments?post=9624"}],"version-history":[{"count":0,"href":"https:\/\/heronlaw.ca\/zh-hans\/wp-json\/wp\/v2\/posts\/9624\/revisions"}],"wp:attachment":[{"href":"https:\/\/heronlaw.ca\/zh-hans\/wp-json\/wp\/v2\/media?parent=9624"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/heronlaw.ca\/zh-hans\/wp-json\/wp\/v2\/categories?post=9624"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/heronlaw.ca\/zh-hans\/wp-json\/wp\/v2\/tags?post=9624"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}