In a recent Federal Court decision of Munzhurov v Canada (MCI), 2023 FC 657, the Applicant, Nurtai Munzhurov, a citizen of Kyrgyzstan, sought judicial review of a decision made by an Immigration Officer. The immigration officer had refused Mr. Munzhurov’s application for a Post-Graduate Work Permit (“PGWP”), a Temporary Resident Permit (“TRP”), and restoration of status. The main issue under consideration was the TRP application.
The Court’s analysis applied the principles set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, which emphasizes the hallmarks of justification, transparency, and intelligibility in a reasonable decision.
What is a Post Graduate Work Permit?
If you are a foreign national currently studying or thinking about studying in Canada in the future, you may also be interested in a Post Graduate Work Permit. When issued a Canadian Study Permit, you must comply with certain requirements to maintain status a temporary resident. These requirements include, but are not limited to, enrollment at a designated learning institution and active pursuit of the course or program of study detailed the Application for Study Permit.
Following successful completion of a program of study at a Canadian designated learning institution, you may apply for a PGWP to obtain a Work Permit and gain valuable Canadian work experience. This work experience can help foreign nationals who have graduated from Canadian learning institutions qualify for permanent residence in Canada.
Section 186(w) of the Immigration and Refugee Protection Regulations (“IRPR”) allows students who have completed their program of study to work while awaiting a decision on their PGWP application, so long as they meet all of the following criteria:
- They are or were valid Study Permit holders at the time of the PGWP application
- They were a full-time student enrolled at a designated learning institution in a post-secondary academic, vocational or professional training program
- They were authorized to work off campus without a work permit
- They did not exceed the allowed hours of work
Introduction and Summary of the Case
The Applicant, Mr. Munzhurov, is a 25 year old citizen of Kyrgyzstan, seeking judicial review of his application for a Post-Graduate Work Permit (“PGWP”), for a Temporary Resident Permit (“TRP”), and for restoration of his status in Canada.
At the time of the hearing, the restoration was no longer contested as the Applicant conceded that he no longer qualified for a PGWP as he was not a full-time student. As such, the Applicant applied for a TRP.
Note: If you are currently residing in Canada on a valid Study Permit and are interested in or looking to remain and work in Canada following graduation from your study program, you must apply for a Post Graduate Work Permit while you are still a full-time student. Failure to apply while your status as a student is still valid will result in the refusal of your PGWP.
The Honourable Justice Régimbald allowed the Applicant’s Application for Judicial Review as the reasons provided by the reviewing visa officer were not sufficiently intelligible to allow the Court to determine that all relevant factors were adequately weighed or considered.
The Applicant arrived in Canada in 2015 on a study permit to pursue a Bachelor’s Degree program at the University of New Brunswick. While he initially maintained full-time student status, he was registered as a part-time student for his final academic session, as allowed under the PGWP requirements. However, his university transcript revealed that he had been enrolled as a part-time student for more semesters than just the final one.
The Applicant’s study permit was set to expire on September 30, 2020, but he submitted a PGWP application on September 26, 2020, which granted him “implied status” until the decision on his application was made. Implied status allows a Study Permit holder to remain in Canada while awaiting the decision of their Application – whether that be an application for extension of the existing study permit or PGWP, for example. Unfortunately, his PGWP application was rejected on December 15, 2020, at which time his status also expired.
However, as a result of the COVID-19 pandemic, Immigration, Refugees and Citizenship Canada developed a temporary public policy that provided more time for temporary residents to apply to restore their legal status in Canada. Due to this public policy, the Applicant had until August 31, 2021, to restore his status, as his status expired between January 30, 2020, and May 31, 2021 – the timeframe set by the IRCC.
Note: When applying for restoration of status, an applicant is normally constrained by a 90-day deadline pursuant to section 182 of the Immigration and Refugee Protection Regulations, SOR/2002-227.
Subsequently, the Applicant submitted a new application for PGWP, TRP, and restoration of student status. Acknowledging his ineligibility for PGWP due to the part-time student status, he sought a TRP to overcome this barrier. The visa officer refused all his applications in one decision letter. The officer further noted that the TRP application was not justified in the circumstances, but failed to provide clear reasons as to what they considered in reaching this conclusion.
During the hearing, it was acknowledged that the visa officer erred in applying the COVID-19 public policy, which allowed additional time for foreign nationals to restore their status. While the error was noted, it did not have a substantive impact on the case because even if the Applicant had restored his student status, he would still be ineligible for a PGWP due to not maintaining full-time status, excluding his final academic year, during his studies at the University of New Brunswick.
Temporary Resident Permit Application
The main issue arose concerning the visa officer’s reasons for denying the TRP application. Under section 24 of the Immigration and Refugee Protection Act, SC 2001, c 27, a TRP may be issued when a foreign national does not meet the requirements of the Act if a visa officer finds that issuing a TRP is justified in the circumstances. It is important to note that a TRP may be cancelled at any time.
The objective of section 24 is to “soften the sometimes harsh consequences of the strict application of the IRPA which surfaces in cases where there may be ‘compelling reasons’ to allow a foreign national to enter or remain in Canada despite inadmissibility or non-compliance with IRPA.” [Farhat v Canada (MCI), 2006 FC 1275 at para 22; Shabdeen v Canada (MCI), 2014 FC 303 at para 23].
Mr. Munzhurov submissions provided that, while he had not maintained full-time status while studying in Canada, he had met all other requirements of the PGWP program. The Applicant further explained why he had not maintained full-time status while at the University of New Brunswick. However, the visa officer’s failed to meaningfully grapple with the material provided and the reasons did not demonstrate proper consideration of the Applicant’s submissions or explain why the issuance of a TRP was not justified.
The reviewing officer failed to exercise discretion in accordance with the Immigration, Refugees and Citizenship Canada (“IRCC”) policy on TRPs, which outlines relevant factors a visa officer should consider. In assessing a TRP application, the reviewing officer should consider certain factors such as the history of the applicant, the reasons for the person’s presence in Canada, and the person’s benefits to others. Instead, the reasons provided were boilerplate and lacked intelligibility, making it impossible for the Court to assess whether the proper criteria were applied [Abou Loh v Canada (MCI), 2019 FC 1084 at para 40].
Judicial Review Allowed
Justice Régimbald noted the importance of clear, precise, and intelligible reasons that refer to the applicants’ submissions and supporting documentation and highlighted the recent decision of Afuah v Canada (MCI), 2021 FC 596, where Justice McHaffie noted: “[e]ven where the obligation to give reasons is minimal, the Court cannot be left to speculate as to the reasons for a decision or attempt to fill in those reasons on behalf of a decision-maker where they are not clear from the decision read in light of the record.” [Canada (MCI) v Jeizan, 2010 FC 323 at para 17; Afuah v Canada (MCI), 2021 FC 596 at para 17]
Given the lack of justification, transparency, and intelligibility in the Decision, the Federal Court granted judicial review and set aside the refusal of the Applicant’s TRP application. The matter was remitted to a different decision-maker for reconsideration. Neither party proposed a question of general importance for certification.
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