We have worked on over two hundred study permit application refusals (the “Refusal”) in three years.

In most, if not all cases, the visa officer (the “Decision-Maker”) stated as reasons:

I am not satisfied that you will leave Canada at the end of your stay, as stipulated in subsection 216(1) of the Immigration Refugee Protection Regulation (the “IRPR”), then added a few more words as an explanation, such as:

  • based on your purpose of visit; or
  • based on the limited employment prospects in your country of residence.

(the “Reasons”)

In the cases above, the Decision-Maker relies on s. 216(1)(b) for refusing to issue the study permit for the applicant. I will make my case why such refusals should be set aside.

Section 216 of the IRPR deals with the issuance of study permits. The IRPR section 216(1) is as follows:

(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;

  • (d) meets the requirements of subsections 30(2) and (3), if they must submit to a medical examination under paragraph 16(2)(b) of the Act; and

  • (e) has been accepted to undertake a program of study at a designated learning institution.

The Dunsmuir should still be the starting point, that an administrative body does have the expertise and the experience to perform the duties delegated to it. I do not suggest that an administrative decision-maker must go through an in-depth legislative interpretation based on Rizzo & Rizzo Shoes Ltd.; Instead, I am suggesting that the administrative body should not ignore the legislation’s purpose altogether and perform a cursory review of the applications based on their own understanding. In my opinion, that is not the administrative body using their discretion. Still, rather it is making an arbitrary decision that creates intolerable inconsistencies which cannot have been the legislation’s intention. 

The text, context, and the purpose analysis of the s. 216 suggest that an applicant should be granted a study permit if he or she meets the requirements for the same, those are;

  1. have the equivalent of the one-year cost of living in Canada in cash available to him or her;
  2. is likely to go back to his or her home country upon completion of his or her program of study;
  3. has passed the required medical tests;
  4. met what is required under basic admissibility to Canada, in other words, is not inadmissible to Canada for any reasons; and
  5. has secured a place at a Designated learning Institution (the “DLI”).

There is no jurisdiction issue as the Decision-Maker is enabled by the legislation to make decisions on the study permit application. The problem here is of law and consistency principles. No one can reasonably argue that the decision-maker, the Officer, did not have jurisdiction in making its decisions; However, I am troubled by seeing the Reasons, which to me it suggests that the decision-maker at best, performed only a cursory review of the application and rejected the study permits on basis unknown to the applicant and me as the lawyer representing them.

Rejecting an applicant’s application for a study permit based on the brief reasons above is unreasonable.

I am careful when using the word “reasonable” and suggesting that reasonableness should be the standard of review applied in its true sense and not as a correctness standard in disguise. The Reasons reveal that the Officer did not follow IRCC’s policy guidelines; Moreover, the finding was procedurally unfair and unreasonable.

In another recent refusal letter as reasons for rejecting the applicant’s application,

Reasons: The applicant is single and mobile

Many applicants for study permits are young, often recent graduates, given their age and where they are in their lives, most are single, they are ambitious and hard-working, and they are applying for programs outside their home countries, so most are likely single and mobile. If the legislature intended only to make study permits available to married and immobile applicants, it would have said so in s. 216(1), but that is not the case.

The standard of review is correctness when addressing breaches of procedural fairness and
reasonableness for errors of mixed fact and law. In most Refusals, the Decision-Maker seem to ignore critical evidence, leading them to render decisions lacking in justification, transparency, and intelligibility. In those cases, the Decision-Maker breaches procedural fairness by not providing the applicant with an opportunity to respond to credible findings.

In Aghaalikhani v. Canada (M.C.I.), 2019 FC 1080, the applicant for judicial review was represented by Samin Mortazavi, Mr. Justice Gascon stated: “There is no dispute that, when reviewing a visa officer’s factual assessment of an application for a student visa and an officer’s belief that an applicant will not leave Canada at the end of his or her stay, the standard of review is reasonableness . . .”.

The Supreme Court of Canada, in the decision of Canada (M.C.I.) v Vavilov confirmed that judicial review of an administrative decision is presumed to be on the standard of reasonableness subject to certain exceptions, none of which apply to these Refusals that we have been seeing. A reviewing court must determine whether the decision bears the hallmarks of reasonableness—justification, transparency and intelligibility. A reasonable decision is based on an internally coherent and rational chain of analysis, and it is justified about the facts and law that constrain the decision-maker.

When the Officer relies upon his or her own subjective opinion of evidence while reviewing an application, procedural fairness is still owed. The applicant cannot foresee the opinion and is therefore prevented from responding.

Breaches of procedural fairness and errors in law are reviewable on the correctness standard.

Usually, a breach of procedural fairness determines an application for judicial review. The applicants in most of my judicial review rely upon the findings in the decision of Canadian Pacific Railway wherein the Honorable Appellate Justice Rennie held:

[55] Attempting to shoehorn the question of procedural fairness into a standard of review analysis is also, at the end of the day, an unprofitable exercise. Procedural review and substantive review serve different objectives in administrative law. While there is overlap, the former focuses on the nature of the rights involved and the consequences for affected parties. In contrast, the latter focuses on the relationship between the court and the administrative decision-maker. Further, certain procedural matters do not lend themselves to a standard of review analysis at all, such as when bias is alleged. As Suresh demonstrates, the distinction between the substantive and procedural review and the ability of a court to tailor remedies appropriate to each is a useful tool in the judicial toolbox. In my view, there are no compelling reasons why it should be jettisoned.

Mission Institution v Kela, 2014 SCC 24 at para 79
Canada {Canadian Human Rights Commission) v. Canada {Attorney General), 2018 SCC 31
Vavilov v. Canada {M.C.I.), 2017 FCA 132, para 24-37
Canadian Pacific Railway Company v. Canada {Attorney General), 2018 FCA 69, para55
Federal Courts Act, section 18.1

When considering a study permit application, Visa Officers have discretion in assessing the evidence and arriving at a decision. However, the decision must contain reasonable findings of fact based on an analysis of relevant evidence. It is trite law that a decision that runs contrary to the evidence is unreasonable.

Zhang v. Canada {M.C.I.), 2003 FC 1493, para 7
Thomas v. Canada {M.C.I.), 2009 FC 1038, para 13
Girn v. Canada {M.C.I.), 2015 FC 1222, para 31

When the Officer’s Decision is brief, and it uses templates in rendering his or her decision. No modification renders reasons were provided that would indicate the Officer’s thought process in an intelligible manner and address evidence that may contradict important findings of fact. In most cases, the Officer’s reasons fail to provide any rational basis for doubting that the applicant is a genuine student and finding that his ties outside Canada are insufficient to compel him to leave Canada after his studies. This is against Court’s case law and/or against the policies and guidelines of Citizenship and Immigration Canada (CIC).

On the matter of jurisprudence of providing reasons, Justice Pamel in Ekpenyong states:

[22] “I accept that it has become commonplace for visa officers to use templates in rendering their decisions, especially when faced with a high volume of applications. I have no difficulty in principle with visa officers finding efficiencies in how they undertake their work. I also accept that visa officers enjoy a wide berth of discretion in making their decisions and may take into account objective criteria
(Zhang at para 37; Zhou at para 21).

[23] However, when using templates, visa officers should bring the necessary modifications or render reasons that would indicate their thought process in an intelligible manner and address evidence that may contradict important findings of fact. In this case, by simply stating objective determinations, the visa officer did not establish the basis for understanding how he interpreted the evidence to arrive at his decision.”

Ekpenyong v. Canada (M.C.I.), 2019 FC 1245, pars. 22,23
GCMS – Reasons of refusal, page 8

It would be unreasonable for an officer to base a decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before them.

Federal Courts Act, section 18.1(4)(d)

Jurisprudence recognizes that “Where parts of evidence are not considered or misapprehended, where the findings do not flow from evidence and where the outcome in not defensible, a decision will not withstand such probing examination.”

Aghaalikhani v Canada, 2019 FC 1080, para 17

In Agaalikhani, Justice Gascon, in para 21, states: “In the absence of evidence suggesting or implying a risk of not leaving Canada, and faced with evidence indicating the exact opposite, a justification for the Officer’s conclusion to the contrary was required. Yet, there was none.” Here, we have a similar situation. It is trite law that a decision that runs contrary to evidence is unreasonable.

In Jalota, Justice Phelan states: “Lastly, the Respondent has put forward no basis for concluding that the applicant would not leave Canada. It is not sufficient to just run through the various grounds for denial of the application, as if checking off a list, without giving reasons for the conclusion.”

Jalota v. Canada (M.C.I.), 2013 FC 1176 at para 27

Interview is necessary

It must be highlighted that consistent with the duty of fairness, it is common for procedural fairness letters to be provided or an interview convoked where an officer doubts an applicant’s evidence of intention or purpose of visit, which would be sufficient if believed. This is consistent with the Decision-Maker’s own study permit processing manual, which states:

  • In certain circumstances, it may be necessary to interview the applicant. Reasons that may warrant the need for an interview include
    Questions or doubts concerning applicant’s reasons for wishing to come to Canada, the arrangements made for their care and support, and their ability or willingness to leave Canada;

Operational Bulletin OP12: Students – Program Delivery Instructions, Study Permits: Other Considerations
Ilesanmi v. Canada {M.C.I.), 2017 FC 137, par. 17
Hakimi v. Canada {M.C.I.), 2015 FC 657, pars 23-24

In Al Aridi, Justice Walker states: “Although the burden rests with the applicants to establish that they have met the requirements of the IRPA and IRPRs for the issuance of a study permit and TRVs, the 0fficer’s determination must be based on the evidence. In my view, the Decisions were not based on deficiencies in the applicants’ evidence. The Officer did not believe the applicants and made veiled credibility findings. The repetition in each Decision that the applicants were not bona fide students or visitors, as applicable, reflects a general concern with the credibility of the applicants’ stated intentions.”

Al Aridi v. Canada (M.C.I.), 2019 FC 381, para. 29

Credibility findings such as these, which were not based on evidence provided, ought to have been put to the applicant to allow him to disabuse the Officer of his or her concerns. The jurisprudence is well established in that there exists a duty to provide applicants who submit a complete application an opportunity to disabuse officers of concerns regarding the accuracy, genuineness or credibility of evidence provided. As explained by the Honourable Mr. Justice O’Keefe in Bonilla.

[27] This is not a case in which the applicant’s application itself was incomplete, but a situation where the officer subjectively formed an opinion that the applicant would not return to Colombia following the completion of her studies. [.] The visa officer’s failure to give the applicant an opportunity to respond to his concerns on the facts of this case amounted to a breach of the rules of natural justice. The application for judicial review is therefore allowed, and the matter is referred to a different visa officer for redetermination.

Bonilla v. Canada {M.C.I.), 2007 FC 20, par 27 [emphasis added]

The Officer’s reason of refusal usually do not “bear the hallmarks of reasonableness – justification, transparency and intelligibility . . .” The Officers often provide no intelligible analysis and ultimately render a decision based on unreasonable and factually incorrect inferences in opposition to the evidence filed. In most cases, there is a lack of responsiveness to the evidence. Jurisprudence recognizes that findings for which there is no evidence before the tribunal will be set aside on review because such a finding is made without regard to material before it. Here we have a similar situation.

The Officer’s reasons often breach natural justice owed to applicants

Canada (M.C.I.) v Vavilov, 2019 SCC 65, paras 99,127,128
Aghaalikhani, Supra, para. 25

In many cases, despite the clear, complete and unambiguous evidence provided, the Officer believed the application was being made for an improper purpose. This finding was based on several unfounded subjective suspicions that are not put to the applicant. They are therefore denied a meaningful opportunity to participate in the decision-making process.

Wu v Canada (M.E.I.), (1989) 2 F.C. 175 (FCTD)
Bains v. Canada (M.E.I.), (1990) 47 Admin. L.R. 317, 109
N.R. 239, par 1 (F.C.A.)
Coliseum v. Canada (M.E.I.), (1991) F.C.J. No 65 (FCTD)

The MCI, through counsel, frequently argues that the tribunal has expertise and courts should not engage in reviewing the matter. Constitution section 97 and 98 that courts be drawn from members of the bar.

To be completed later…


Leave a Reply

Avatar placeholder

Your email address will not be published.