Calgary, Alberta, January 9, 2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
and
CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of an immigration officer’s decision dated November 22, 2005 denying the applicant a renewal of her study permit.
Background
[2] The applicant is a citizen of Vietnam. She came to Canada in August 2001 on a student’s permit firstly to study English as a second language and later to pursue a career in accounting. When she entered Canada, she was supported by her cousin who paid her tuition expenses and provided her with room and board.
[3] The applicant met Tom Tang, a Canadian citizen, and married him on April 12, 2003. The applicant’s husband submitted a sponsorship application for permanent residence on the applicant’s behalf, but the application was denied in January 2005 on the basis that the marriage was not genuine.
[4] The applicant then applied to renew her study permit. Because her passport expired on June 13, 2005, the applicant’s study permit was renewed up to that date rather than for the usual one year period. The applicant then sent her passport to the Vietnamese Consulate for renewal and submitted a new application to renew her study permit in April 2005. The applicant’s study permit expired on June 13, 2005. The applicant claimed that she was exploring the possibility of enrolling in an accounting program at the Southern Institute of Technology (SAIT) but was unable to do so since she did not have a valid student permit. The applicant also stated that she needed to complete an additional year of language training before studying accounting.
[5] On October 20, 2005, the applicant and her lawyer attended an interview with an immigration officer regarding the application to renew her study permit. The applicant claimed that most of the immigration officer’s questions dealt with her marriage and were not relevant to the renewal application or her intention to leave Canada once her studies ended. By decision dated November 22, 2005, the immigration officer denied the applicant’s renewal application on the basis that she would not leave Canada by the end of her authorized stay. This decision is the subject of this application for judicial review.
The decision under review
[6] According to the decision notes entered into the Field Operation Support System (FOSS), the immigration officer found that “there [was] little evidence that Ms. Dang will have a breakthrough in her academic results within [the] next term.” The immigration officer also noted that the applicant provided “conflicting information regarding her financial support in Canada” during her interview, but that the applicant subsequently presented bank statements, which were accepted by the officer, indicating that the applicant was financially supported. The immigration officer concluded that the applicant did not intend to leave Canada at the end of her authorized study period:
Ms. Dang came to Canada to study ESL and has been given plenty of time and opportunity to do this. She has been taken [sic] ESL courses for 4 ½ years with modest success. As previously noted, she indicated that her knowledge of English is insufficient to presently undertake accounting program at SAIT which was her original goal. It seems unreasonable that having this goal prior to entering Canada Ms. Dang could not reach required fluency in English after 4 ½ years of studying nothing else but English in an English speaking country. There is little evidence that this would change over the next six months and that the client intends to leave Canada at the end of the authorized period.
[Emphasis added]
Issue
[7] The issue raised in this application is whether the immigration officer erred in refusing to renew the applicant’s study permit.
Standard of Review
[8] The immigration officer’s decision not to grant a study permit is based on a factual finding that the applicant had not established that she would leave Canada at the end of her authorized stay. On judicial review, this decision is subject to the standard of patent unreasonableness: see, e.g., Maiga v. Canada (Minister of Citizenship and Immigration), 2006 FC 252 at paragraph 5; Boni v. Canada (Minister of Citizenship and Immigration), 2005 FC 31 at paragraph 14.
Relevant Legislation
[9] The legislation relevant to this application is the Immigration and Refugee Protection Regulations, SOR/2002-228 (the Regulations). The relevant provisions governing the issuance of study permits are as follows:
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PART 12 STUDENTS General Rules […] Study permit required 212. A foreign national may not study in Canada unless authorized to do so by a study permit or these Regulations. […] Division 3 Issuance of Study Permits Study permits 216. (1) Subject to subsections (2) and (3), an officer shall issue a study permit to a foreign national if, following an examination, it is established that the foreign national (a) applied for it in accordance with this Part; (b) will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9; (c) meets the requirements of this Part; and (d) meets the requirements of section 30; […] Application for renewal 217. (1) A foreign national may apply for the renewal of their study permit if (a) the application is made before the expiry of their study permit; (b) they have complied with all conditions imposed on their entry into Canada; and (c) they are in good standing at the educational institution at which they have been studying.
Renewal (2) An officer shall renew the foreign national's study permit if, following an examination, it is established that the foreign national continues to meet the requirements of section 216. […] Division 4 Restrictions on Studying in Canada Acceptance letter 219. (1) Subject to subsection (2), a study permit shall not be issued to a foreign national unless they have written documentation from the educational institution at which they intend to study that states that they have been accepted to study there. […] Financial resources 220. An officer shall not issue a study permit to a foreign national, other than one described in paragraph 215(1)(d) or (e), unless they have sufficient and available financial resources, without working in Canada, to (a) pay the tuition fees for the course or program of studies that they intend to pursue; (b) maintain themself and any family members who are accompanying them during their proposed period of study; and (c) pay the costs of transporting themself and the family members referred to in paragraph (b) to and from Canada. |
PARTIE 12 ÉTUDIANTS Dispositions générales […] Permis d’études 212. L’étranger ne peut étudier au Canada sans y être autorisé par un permis d’études ou par le présent règlement. […] Section 3 Délivrance du permis d’études Permis d’études 216. (1) Sous réserve des paragraphes (2) et (3), l’agent délivre un permis d’études à l’étranger si, à l’issue d’un contrôle, les éléments suivants sont établis : a) l’étranger a demandé un permis d’études conformément à la présente partie; b) il quittera le Canada à la fin de la période de séjour qui lui est applicable au titre de la section 2 de la partie 9; c) il remplit les exigences prévues à la présente partie; d) il satisfait aux exigences prévues à l’article 30. […] Demande de renouvellement 217. (1) L’étranger peut demander le renouvellement de son permis d’études s’il satisfait aux exigences suivantes : a) il en fait la demande avant l’expiration de son permis d’études; b) il s’est conformé aux conditions qui lui ont été imposées à son entrée au Canada; c) il est en règle avec l’établissement d’enseignement où il a étudié. Renouvellement (2) L’agent renouvelle le permis d’études de l’étranger si, à l’issue d’un contrôle, il est établi que l’étranger satisfait toujours aux exigences prévues à l’article 216. […] Section 4 Restrictions applicables aux études au Canada Acceptation par l’établissement 219. (1) Le permis d’études ne peut être délivré à l’étranger que si celui-ci produit une attestation écrite de son acceptation émanant de l’établissement d’enseignement où il a l’intention d’étudier. […] Ressources financières 220. À l’exception des personnes visées aux sous-alinéas 215(1)d) ou e), l’agent ne délivre pas de permis d’études à l’étranger à moins que celui-ci ne dispose, sans qu’il lui soit nécessaire d’exercer un emploi au Canada, de ressources financières suffisantes pour : a) acquitter les frais de scolarité des cours qu’il a l’intention de suivre; b) subvenir à ses propres besoins et à ceux des membres de sa famille qui l’accompagnent durant ses études; c) acquitter les frais de transport pour lui-même et les membres de sa famille visés à l’alinéa b) pour venir au Canada et en repartir.
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Analysis
Issue: Did the immigration officer err in refusing to renew the applicant’s study permit?
[10] The immigration officer’s decision to deny renewal of the applicant’s study permit was based on factual findings regarding the applicant’s intention to study temporarily in Canada and her intention to leave the country once her authorized period of study ended. The officer considered the following facts when reaching her decision:
1. the applicant’s marriage to a Canadian citizen;
2. the refusal of her application for permanent residence;
3. the fact that she had not shown much progress during her ESL studies; and
4. her goal of studying accounting and her acknowledgement that she needed further language training in order to do so.
[11] The officer found that there was little evidence that the applicant would have a breakthrough in her academic results in the next term. The officer noted that the applicant took ESL courses for four and a half years with modest success and that it seemed unreasonable that she had not reached the required level of fluency after her existing period of study. As a result, the officer was not satisfied that the applicant intended to leave Canada by the end of the authorized period of stay as required under paragraph 216(1)(b) of the Regulations.
Legal requirements for renewal of study permit
[12] To obtain a renewal of a study permit, the Regulations require that applicants maintain good standing at their educational institution, have sufficient and available financial resources to support their studies, and establish that they will leave Canada after the expiry of their authorized stay.
Evidence regarding education standing
[13] The evidence before the immigration officer, which includes progress reports issued to the applicant by the Canadian Conversation College, indicates that the applicant maintained satisfactory standing in her classes. Indeed, her grades in her courses were consistently listed as good to very good. She received a class/exam mark of 81%, and was only absent one day during her last term.
[14] The immigration officer was entitled to consider the applicant’s progress in ESL studies within the context of her long term goal of studying accounting, as paragraph 217(1)(c) of the Regulations provides that an applicant for renewal of a study permit must be in good standing at his or her educational institution. The applicant’s ESL College clearly documented that the applicant was doing very well in her English language studies, and was in good standing. The immigration officer’s finding of fact that the applicant was progressing slowly was patently unreasonable. Moreover, the immigration officer erroneously found that the applicant has been studying for 4 ½ years, when in fact it was 3 years.
Evidence regarding financial resources
[15] The applicant also established that she had sufficient and available financial resources during her stay in Canada.
Evidence regarding whether the applicant will leave Canada upon the expiration of the study permit
[16] Given the legal requirement for renewing a study permit includes that the applicant will leave Canada following the end of their authorized period of study, the immigration officer was obliged to consider the likelihood that the applicant would leave the country, based upon the available evidence, when arriving at her decision. It does not follow that the applicant’s progress in learning English is probative of her intention to leave Canada upon completion of her studies. The immigration officer inferred from the applicant’s lack of progress in learning English that she intended to remain in Canada. In my view, this inference was patently unreasonable.
[17] The applicant was asked several questions during her interview concerning her marriage. It was patently unreasonable for the immigration officer to consider the fact that the applicant’s application for permanent residence through spousal sponsorship was refused since subsection 22(2) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the Act) provides that an applicant can have a dual intent – an intention to become a permanent resident and an intention to become a temporary resident:
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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. |
22. […] Double intention (2) L’intention qu’il a de s’établir au Canada n’empêche pas l’étranger de devenir résident temporaire sur preuve qu’il aura quitté le Canada à la fin de la période de séjour autorisée. |
The fact that the applicant has pursued an application to permanently reside in Canada with her husband does not establish that she would not leave Canada at the end of the period authorized for her study permit as required under paragraph 216(1)(b) of the Regulations.
[18] The visa officer failed to recognize that IRPA expressly allows the applicant to simultaneously seek permanent residence status and temporary resident status as a student.
Conclusion
[19] The only relevant criteria for an immigration officer to consider on an application to renew a study permit under subsection 217(2) of the IRPA Regulations are whether:
1. the applicant is in good standing at the educational institution at which she has been studying;
2. the applicant has sufficient and available financial resources to pay the tuition fees and maintain herself in Canada; and
3. the applicant will leave Canada at the end of the period authorized for their stay.
[20] Without an evidentiary basis on which to support the immigration officer’s findings, the immigration officer’s conclusion that the applicant would not leave Canada at the end of the period authorized for her stay was patently unreasonable. Moreover, by determining that the applicant had taken an unreasonable amount of time to learn the English language, the immigration officer based her conclusion on irrelevant factors. As noted above, the Regulations in this respect only require that an applicant maintain “good standing” at her educational institution, which she has done. The reason for continuing with her ESL courses was to reach a further level of proficiency in order to pursue her initial goal of studying accounting.
[21] For these reasons, I conclude that the immigration officer’s refusal to renew the applicant’s study permit was patently unreasonable. The application for judicial review is allowed; the decision under review is set aside and remitted for reconsideration by a different immigration officer.
[22] This case does not raise a serious question of general importance which ought to be certified for appeal. The applicant suggested a question about whether the immigration officer can consider the progress of the applicant in her studies in deciding whether to renew the study permit. This matter is clearly settled in paragraph 217(1)(c) of the Regulations as discussed in paragraphs 13 and 14 of these Reasons for Judgment.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that:
1. the application for judicial review is allowed; and
2. the immigration officer’s decision to refuse the renewal of the applicant’s study permit is set aside and remitted for reconsideration by a different immigration officer.