Date: 20070109
Docket: IMM-7338-05
Citation: 2007 FC 15
Calgary, Alberta, January 9,
2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
THI
MY LINH DANG
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
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:
|
PART 12
STUDENTS
Division 1
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
Section
1
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.
|
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:
|
22. […]
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.
|
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.
“Michael
A. Kelen”
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