Zhang v. Canada (Minister of Immigration
Refugees and Citizenship)
Refugees and Citizenship)
Between
Jin Zhang, Applicant, and
The Minister of Immigration, Refugees
and Citizenship, Respondent
Jin Zhang, Applicant, and
The Minister of Immigration, Refugees
and Citizenship, Respondent
[2016] F.C.J. No. 961
2016 FC 964
Docket: IMM-4977-15
Federal Court
Toronto, Ontario
B.R. Bell J.
Heard: May 4, 2016.
Judgment: August 29, 2016.
Docket: IMM-4977-15
Federal Court
Toronto, Ontario
B.R. Bell J.
Heard: May 4, 2016.
Judgment: August 29, 2016.
(19 paras.)
JUDGMENT AND REASONS
·
B.R. BELL J.:--
I. Overview
1 This
is an application for judicial review of an Immigration Officer's refusal to
issue a study permit to Jin Zhang [Ms. Zhang]. The Officer concluded Ms. Zhang
was ineligible for a study permit because she had engaged in unauthorized study
in Canada while a temporary resident (on a visitor's visa). For the reasons set
out below, I would dismiss the application for judicial review. The Officer's
decision meets the test of reasonableness set out in Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir].
II. Context
2 Ms.
Zhang was born in China on March 23, 1975. She arrived in Canada on a visitor's
visa on August 23, 2014, which was valid until February 23, 2015. On January
16, 2015, she applied for, and was eventually granted an extension of that
visa, until August 30, 2015. On January 5, 2015, Ms. Zhang began a 14-week
English as a Second Language [ESL] program at Lambton College, a designated
learning institution under the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act].
3 On
May 17, 2015, approximately one month after completing the ESL program, Ms.
Zhang, while still in Canada, submitted an application for a study permit with
respect to a two-year hospitality management program at Lambton College. The
program was to commence on August 31, 2015.
4 The
14-week ESL program undertaken by Ms. Zhang was a prerequisite to her
participation in the hospitality management program. Subparagraph 215(1)(f)(iii) of Division 2 of Part 12 of the IRPR
provides that a foreign national who is a temporary resident may apply for a
study permit after entering Canada if they have completed a course or program
of study that is a prerequisite to enrolment at the designated learning
institution. Ms. Zhang contends this provision permits her to apply for a study
permit from within Canada.
5 The
Officer, however, relied upon paragraph 188(1)(c) of the IRPR to conclude that Ms. Zhang had engaged in unauthorized
study while in Canada. That paragraph provides that a foreign national may
study in Canada without a study permit provided the duration of the course is
"six months or less and will be completed within the period for their stay
authorized upon entry into
Canada". [My emphasis]
6 The
Officer concluded that since the 14-week ESL program commenced on January 5,
2015 it was evident that it was not completed by February 23, 2015, the date at
which Ms. Zhang was authorized to remain in Canada 'upon entry'. The Officer
rejected Ms. Zhang's contention that the authorized completion date for her ESL
program should be extended to August 30, 2015, the date to which the visitor's
visa was extended. As a result, the Officer concluded that Ms. Zhang had
engaged in unauthorized studies while in Canada, violating paragraph 183(1)(c) of the IRPR.
7 The
Officer further considered whether Ms. Zhang was eligible for relief under
section 221 of the IRPR. The Officer concluded she was ineligible to apply for
a study permit while in Canada and refused her application.
III. Standard of Review
8 Both
parties agree that the applicable standard of review is reasonableness. Where a
decision-maker is interpreting his or her home statute, deference generally
prevails (Dunsmuir, above at
para 54; Chow v Canada (Minister of Citizenship and
Immigration), 2015 FC 861 at para 8). In applying the
reasonableness standard, this Court will not substitute its own views, nor will
it intervene, if the officer's decision is justified, transparent and
intelligible, and falls "within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law" (Dunsmuir, above at para 47).
IV. Legislative Scheme
9 Section
11(1) of the Act provides that a foreign national must apply for any document
required by the IRPR before entering Canada. This includes applications for
study permits, in accordance with section 213 of the IRPR. Subsection 9(1) of
the IRPR provides that a foreign national may not enter Canada to study without
first obtaining a study permit. Furthermore, section 212 of the IRPR also
provides that a foreign national may not study in Canada unless authorized to
do so by the Act, a study permit or the IRPR. While subsection 215(1) of the
IRPR provides exceptions to the general rule that one must obtain a study
permit prior to entering Canada, none of those exceptions apply in the present
case. Similarly, as already noted, paragraph 188(1)(c) of the IRPR also provides for an exception.
10 Paragraph
221(a) of the IRPR reads as follows:
·
221 Despite Division 2, a study
permit shall not be issued to a foreign national who has engaged in
unauthorized work or study in Canada or who has failed to comply with a
condition of a permit unless
·
(a) a
period of six months has elapsed since the cessation of the unauthorized work
or study or failure to comply with a condition;
* * *
·
221 Malgré la section 2, il
n'est délivré de permis d'études à l'étranger qui a déjà étudié ou travaillé au
Canada sans autorisation ou permis ou qui n'a pas respecté une condition
imposée par un permis que dans les cas suivants :
·
a) un
délai de six mois s'est écoulé depuis la cessation des études ou du travail
sans autorisation ou permis ou du non-respect de la condition;
11 Attached
hereto as Appendix 'A' are the relevant provisions of the Act and the IRPR.
V. Matters in dispute
12 Ms.
Zhang contends that the Officer committed a reviewable error in his or her
interpretation of paragraph 188(1)(c) of the IRPR. She contends the information published on the official
Citizenship and Immigration Canada [CIC] website constitutes a reasonable
interpretation of paragraph 188(1)(c). The website reads:
·
You can study in Canada without
a study permit if: the duration of your course of program of study is six
months or less and you will complete your course or studies within the time you are allowed to stay in Canada. [My emphasis]
13 The
words "within the time you are allowed to stay in Canada", in
contrast to the words "within the period of stay authorized upon entry
into Canada", suggest a broader interpretation of paragraph 188(1)(c) of the IRPR than that adopted by the
Officer. Ms. Zhang contends that according to the information found on the CIC
website, the duration of her authorized period of study without a permit must
include the date to which her visitor's visa was extended; namely, August 30,
2015.
14 Furthermore,
Ms. Zhang contends that section 221 of the IRPR permitted the Officer to issue
a study permit since more than 6 months had elapsed from the cessation of her
unauthorized study by the time the Officer had rendered the decision. The
Minister contends section 221 of the IRPR has no application in the
circumstances. In the alternative, the Minister contends the Officer's
conclusion meets the test of reasonableness.
VI. Analysis
Paragraph 188(1)(c)
15 I
cannot accept Ms. Zhang's contention regarding the interpretation of paragraph
188(1)(c) of the IRPR. Indeed,
the Officer's conclusions cannot be based upon information found on websites.
He or she is required to interpret the Act and the IRPR. The words "upon
entry into Canada" as found in paragraph 188(1)(c) are unambiguous. It is common ground that words in a statute are to
be given their plain meaning unless the context requires otherwise: see, Ruth
Sullivan, Statutory Interpretation, 2d ed (Toronto: Irwin Law, 2007) at 49-50. Upon entry into Canada
Ms. Zhang was authorized to remain until February 23, 2015. I find it
reasonable to conclude that that is the date by which she was required to
complete any study, pursuant to paragraph 188(1)(c), for which she did not have a study permit. Even if I were to hold
the view that the Officer was incorrect in his interpretation of the relevant
provisions, he or she must be afforded deference when interpreting his or her
home statute. Reasonableness, not correctness, is the standard of review to be
applied.
Paragraph 221(a)
16 Ms.
Zhang also contends the Officer committed a reviewable error in determining
that a study permit could not be issued pursuant to paragraph 221(a) of the IRPR. She makes two submissions.
First, she contends that by the time the Officer issued the decision on her
application, a period of six months had passed following the conclusion of the
14-week ESL program. She therefore submits that she met the exception set out
in paragraph 221(a) in that six
months had elapsed from the cessation of the unauthorized study. The Officer
considered her application based upon the date it was filed ('lock-in date').
The objective of a lock-in date is briefly described in the Overseas Processing
1 - Procedures of Immigration, Refugees and Citizenship Canada, at 5.24:
·
The lock-in date is a reference
point used to freeze certain factors for the purpose of processing
applications. Neither the Act nor the Regulations define it. It does not
overcome any requirements of the Act and Regulations that applicants must
satisfy when an officer admits them.
17 Ms.
Zhang filed her application for a study permit in May 2015, approximately one
month after the cessation of her unauthorized study. It was not unreasonable
for the officer to determine that a study permit could not be issued to Ms.
Zhang under paragraph 221(a) of
the IRPR because six months had not elapsed since the end of her unauthorized
study.
18 As
is evident in paragraphs 15 and 16 of these reasons, the Officer appears to
have presumed that section 221 of the IRPR applied in the circumstances, but
concluded the facts did not favour Ms. Zhang. The Minister, however, contends
that section 221 has no application unless the requirements of Division 2 of
Part 12 are met. Since they were not met, the Minister contends no analysis is
necessary under section 221. Given my finding that the Officer's conclusion
regarding the six month delay was reasonable in the circumstances, it is
unnecessary to determine whether section 221 of the IRPR applies only in
circumstances where an applicant meets the requirements of Division 2.
VII. Conclusion
19 I
find that the Officer's decision meets the test of reasonableness as set out in
Dunsmuir. It is "within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law". There is no basis upon which this Court may intervene. I
would therefore dismiss the application for judicial review without costs.
Given that the Officer's decision is factually driven there is no need to
certify a question with respect to the application of section 221.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed without costs. No
question is certified.
B.R. BELL J.
·
* * * * *
APPENDIX A
·
Immigration and Refugee
Protection Act, SC 2001, c 27
·
Application before entering
Canada
·
11 (1) A foreign national must,
before entering Canada, apply to an officer for a visa or for any other
document required by the regulations. The visa or document may be issued if,
following an examination, the officer is satisfied that the foreign national is
not inadmissible and meets the requirements of this Act.
·
Work and study in Canada
·
30 (1) A foreign national may
not work or study in Canada unless authorized to do so under this Act.
·
Authorization
·
30 (1.1) An officer may, on
application, authorize a foreign national to work or study in Canada if the
foreign national meets the conditions set out in the regulations.
·
Immigration and Refugee
Protection Regulations, SOR/2002-227
·
Study permit
·
9 (1) A foreign national may
not enter Canada to study without first obtaining a study permit.
·
No permit required
·
188 (1) A foreign national may
study in Canada without a study permit
·
...
·
(c) if
the duration of their course or program of studies is six months or less and
will be completed within the period for their stay authorized upon entry into
Canada; or
·
...
·
Authorization
·
212 A foreign national may not
study in Canada unless authorized to do so by the Act, a study permit or these
Regulations.
·
Application before entry
·
213 Subject to sections 214 and
215, in order to study in Canada, a foreign national shall apply for a study
permit before entering Canada.
·
Application after entry
·
215 (1) A foreign national may
apply for a study permit after entering Canada if they
·
...
·
(f) are
a temporary resident who
·
...
has completed a course
or program of study that is a prerequisite to their enrolling at a designated
learning institution; or
·
...
·
Failure to comply with
conditions
·
221 Despite Division 2, a study
permit shall not be issued to a foreign national who has engaged in
unauthorized work or study in Canada or who has failed to comply with a
condition of a permit unless
·
(a) a
period of six months has elapsed since the cessation of the unauthorized work
or study or failure to comply with a condition;
·
...
* * *
·
Loi sur l'immigration et la
protection des réfugiés, LC 2001, ch 27
·
Visa et documents
·
11 (1) L'étranger doit,
préalablement à son entrée au Canada, demander à l'agent les visa et autres
documents requis par règlement. L'agent peut les délivrer sur preuve, à la
suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme
à la présente loi.
·
Études et emploi
·
30 (1) L'étranger ne peut
exercer un emploi au Canada ou y étudier que sous le régime de la présente
loi.
·
Autorisation
·
30 (1.1) L'agent peut, sur
demande, autoriser l'étranger qui satisfait aux conditions réglementaires à
exercer un emploi au Canada ou à y étudier.
·
Règlement sur l'immigration et
la protection des réfugiés, DORS/2002-227
·
Permis d'études
·
9 (1) L'étranger ne peut entrer
au Canada pour y étudier que s'il a préalablement obtenu un permis d'études.
·
Permis non exigé
·
188 (1) L'étranger peut étudier
au Canada sans permis d'études dans les cas suivants :
·
...
·
c) il
suit un cours ou un programme d'études d'une durée maximale de six mois qu'il
terminera à l'intérieur de la période de séjour autorisée lors de son entrée au
Canada;
·
...
·
Autorisation
·
212 L'étranger ne peut étudier
au Canada sans y être autorisé par la Loi, par un permis d'études ou par le
présent règlement.
·
Demande avant l'entrée au Canada
·
213 Sous réserve des articles
214 et 215, l'étranger qui cherche à étudier au Canada doit, préalablement à
son entrée au Canada, faire une demande de permis d'études.
·
Demande après l'entrée au Canada
·
215 (1) L'étranger peut faire
une demande de permis d'études après son entrée au Canada dans les cas suivants
:
·
...
·
f) il
est un résident temporaire qui, selon le cas :
·
...
a terminé un cours ou
un programme d'études exigé pour s'inscrire à un établissement d'enseignement
désigné;
·
...
·
Non-respect des conditions
·
221 Malgré la section 2, il
n'est délivré de permis d'études à l'étranger qui a déjà étudié ou travaillé au
Canada sans autorisation ou permis ou qui n'a pas respecté une condition
imposée par un permis que dans les cas suivants :
·
a) un
délai de six mois s'est écoulé depuis la cessation des études ou du travail
sans autorisation ou permis ou du non-respect de la condition;
·
...
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