POST GRADUATE WORK PERMIT DENIED, APPLICANT DID NOT MEET CRITERIA

This is a rare case on the Post Graduate Work Permit. The applicant failed to meet the criteria set out in the guidelines.

Rehman v. Canada (Minister of Citizenship and Immigration)

Between
Masood Ur Rehman, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2015] F.C.J. No. 1015

2015 FC 1021

Docket: IMM-6264-14

 Federal Court
Calgary, Alberta

Gascon J.

Heard: August 26, 2015.
Judgment: August 27, 2015.

(22 paras.)

---

JUDGMENT AND REASONS

·       GASCON J.:-- 

I. Overview

1     The applicant Mr. Rehman is a citizen of Pakistan. In August 2011, he entered Canada on a study permit and between September 2011 and June 2013, he attended the New Brunswick Community College [NBCC] in a two-year Business Administration Accounting program. He studied full-time until April 19, 2013 and part-time from April 22 to June 21, 2013.

2     Mr. Rehman was not eligible to graduate in June 2013 as he had failed one Intermediate Accounting course. Between July 2013 and June 2014, he enrolled as a part-time student in three different sessions at institutions other than NBCC, in order to obtain this missing course necessary to obtain his degree. After two unsuccessful attempts, he finally passed an equivalent course; NBCC agreed to transfer the credits and granted Mr. Rehman's diploma in July 2014.

3     Mr. Rehman's study permit expired on March 31, 2014 and as of that date, he no longer had temporary resident status in Canada.

4     On July 1, 2014, Mr. Rehman applied for a post-graduate work permit [PGWP] as well as a restoration of his temporary resident status. Citizenship and Immigration Canada [CIC] refused his application for a PGWP on August 12, 2014 as the immigration officer [the Officer] concluded that Mr. Rehman did not hold a valid study permit at the time of his application and had not continuously studied full-time in Canada, as required by the PGWP program.

5     Mr. Rehman argues that the Officer's decision refusing his application for a PGWP was unreasonable because it relied on an erroneous interpretation of the CIC administrative guidelines defining the eligibility requirements for a PGWP. He seeks judicial review of the Officer's decision and asks this Court to quash the decision and send it back for redetermination by a different officer.

6     Having considered the evidence before the Officer and the applicable law, I can find no basis for overturning the Officer's decision. The decision was responsive to the evidence and the outcome was defensible based on the facts and the law. Therefore, I must dismiss Mr. Rehman's application for judicial review.

7     The sole issue is whether the Officer's decision was unreasonable.

II. The Officer's Decision

8     The Officer's decision is brief.

9     The Officer determined that Mr. Rehman failed to meet the eligibility requirements of the PGWP to "have continuously studied full time in Canada" as Mr. Rehman enrolled in consecutive part-time sessions (including online courses) in order to complete his program of study in Canada and to meet the requirements of graduation. Therefore, Mr. Rehman was not eligible for the work permit he applied for.

10     Furthermore, the Officer noted that, as Mr. Rehman no longer held a temporary resident status in Canada at the time of his application, his application for a PGWP also had to be refused.

III. Was the Officer's Decision Unreasonable?

11     Mr. Rehman submits that the Officer unreasonably interpreted the CIC guidelines in rejecting his PGWP application. Mr. Rehman admits that he did enroll in part-time courses in order to complete his degree program, but contends that the guidelines do not require full-time studies for the entire duration of the study permit. He argues that, as long as an applicant engages in at least one period of continuous full-time study of a minimum of eight months, the rest of the duration of the study permit may be completed on a part-time basis. Mr. Rehman contends that a person who completed all but one course of a program of studies, with a continuous intention to complete the program, and who ultimately received a certificate of completion, should not be refused participation in the PGWP. At the hearing before the Court, counsel for Mr. Rehman further pleaded that the Officer's decision was contrary to the objectives of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and led to an absurdity in unduly penalizing a student who fails one course at the end of his study program.

12     I disagree.

13     The Officer's decision is reviewable on the standard of reasonableness. In judicial review proceedings, the reasonableness standard requires that a decision be justifiable, intelligible and transparent, and fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9 at para 47; Ni v Canada (Minister of Citizenship and Immigration), 2014 FC 725 at para 24).

14     The Immigration and Refugee Protection Regulations, SOR/2002-227 provide, at section 199, that a foreign national may apply for a work permit if he or she holds a work or study permit or otherwise qualifies. The more specific eligibility requirements for a PGWP are listed in the CIC guidelines reproduced on the CIC website; an initial version was published in November 2014 and it was subsequently completed in July 2015. These guidelines clearly state that, as part of the requirements to qualify for a PGWP, an applicant 1) must have continuously studied full time in Canada and have completed a program of study that lasted at least eight months, and 2) must have a valid study permit when he or she applies for the work permit.

15     Mr. Rehman met neither of these requirements at the time of his application for a PGWP.

16     First, Mr. Rehman did not have a valid study permit when he applied for a PGWP. His study permit had expired on March 31, 2014. He was also not in the possession of a valid study permit when he completed his missing accounting course in the summer of 2014. In addition, Mr. Rehman had not applied to obtain the restoration of his status as a student. He had to hold a valid study permit in order to be granted a PGWP (Adroh v Canada (Minister of Citizenship and Immigration), 2012 FC 393 at para 4 [Adroh]).

17     There is no doubt that, in the absence of such study permit and given the express requirements of the CIC guidelines, the Officer's decision to refuse his application on this ground was well within the range of acceptable, possible outcomes. Indeed, it was likely the only reasonable option for the Officer (McLean v British Columbia (Securities Commission), 2013 SCC 67 at para 38).

18     Second, even if Mr. Rehman had a valid study permit at the time of his application, he was not eligible for a PGWP as he had enrolled in three consecutive periods of part-time studies in order to obtain his missing accounting course, following his two years of study at NBCC. This is in clear contradiction of the CIC guidelines.

19     A plain reading of the CIC guidelines for PGWP indicates that the full-time status and the duration of the program are two distinct requirements: an applicant for a PGWP must have studied full time in Canada AND must have completed a program of study that lasted at least eight months. Furthermore, the section of the July 2015 CIC guidelines relating to the "Final Academic Session" states that "if a student meets all the eligibility requirements, with the exception of full time status during their final academic session, they are still considered to be eligible for this program". If full-time study was not otherwise required, this section would be meaningless and there would be no need for CIC to specify that part-time status is acceptable in a student's final session.

20     It was thus perfectly reasonable for the Officer to conclude that the requirement of full-time studies applied to the whole duration of Mr. Rehman's program, and that Mr. Rehman had failed to meet this requirement of the PGWP by enrolling in successive part-time sessions and online courses in order to obtain his degree. In fact, I am satisfied that the Officer's decision was once again the only reasonable interpretation of this condition contained in the CIC guidelines.

21     I do not agree with counsel for Mr. Rehman that the Officer's decision contradicts the objectives of the IRPA. The PGWP establishes conditions to be met to allow foreign nationals to gain Canadian work experience after a study program, one of which is a requirement of being enrolled in full-time studies. The PGWP is a program created for full-time students. As the Court stated in Adroh, at para 10, the objective of facilitating the entry of students and temporary workers in Canada must be "balanced with the need to maintain the integrity of CIC's programs". In this case, the Officer could not have ignored the specific requirements of the CIC guidelines on the PGWP program.

IV. Conclusion

22     The Officer's refusal of Mr. Rehman's application for a PGWP represented a defensible outcome based on the law and the evidence before the CIC. On a standard of reasonableness, it suffices if the decision subject to judicial review falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Therefore, I must dismiss this application for judicial review. Neither party has proposed a question of general importance for me to certify, and I agree there is none.

JUDGMENT

·       THIS COURT'S JUDGMENT is that:

·       1. 

The application for judicial review is dismissed, without costs; and 

·       2. 

No question of general importance is stated. 

GASCON J.

APPLICATION FOR RESTORATION OF STATUS DISMISSED, OUT OF TIME

The importance of following the requirements of the Regulations and obtaining timely legal advise are highlighted in the case below, where a foreign student applying for a Post Graduate Work permit failed for fling her application out of time. the court noted that the officers have no discretion in the matter.

Adroh v. Canada (Minister of Citizenship and Immigration)

Between
Marie Stéphanie Avi Adroh, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 402
[2012] A.C.F. no 402
2012 FC 393
Docket IMM-5720-11

 Federal Court
Montréal, Quebec
Tremblay-Lamer J.
Heard: April 3, 2012.
Judgment: April 4, 2012.
(14 paras.)
________________________________________

• REASONS FOR JUDGMENT AND JUDGMENT

1     TREMBLAY-LAMER J.:-- This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001 c 27 (Act), of a decision dated July 19, 2011, by an immigration officer at the Case Processing Centre in Vegreville, Alberta (officer) refusing the applicant's post-graduation work application.
2     The applicant is a citizen of Côte d'Ivoire. On December 27, 2007, she arrived in Canada to obtain, with a study permit, a bachelor's degree in accounting at the Université du Québec à Montréal. Her permit, which initially expired in October 2010 was extended until December 31, 2010. As of that date, the applicant no longer had temporary resident status in Canada. It was not until May 5, 2011, that the applicant applied for a post-graduation work permit: she asked for the restoration of her status and for her stay in Canada to be extended in order to gain experience working in accounting. This was the only information before the officer when he made his negative decision on July 19, 2011.
3     In his decision dated July 19, 2011, the officer indicated the following: [TRANSLATION]
• Your application, as presented, was refused.
• An application for restoration must be made within 90 days after losing temporary resident status. Your temporary resident status cannot be restored because your application was submitted after the regulated 90-day period. Since you no longer hold temporary resident status in Canada, your work permit application cannot be approved.
4     It is accepted that the applicant had to obtain the restoration of her temporary resident status and hold a valid study permit for the post-graduation work permit application to be granted. If an applicant does not have temporary resident status in Canada, the officer has no discretion: the officer must refuse the work permit application.
5     The law on the restoration of temporary resident status is clear. In accordance with paragraph 47(a) of the Act, a foreign national loses temporary resident status at the end of the period for which they are authorized to remain:
• 47.
A foreign national loses temporary resident status:
• (a) at the end of the period for which they are authorized to remain in Canada.
6     Section 182 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), specifies the following:
• 182.
On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay and has not failed to comply with any other conditions imposed. [Emphasis added.]
7     Justice Gauthier emphasized the following in Sui v Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 1314, [2006] FCJ No 1659 at paragraphs 33-34 (Sui):
• In order to apply for restoration, a visitor worker or student must not have lost his temporary resident status for longer than ninety days ... . The officer reviewing such an application has no discretion. He must restore the status of the applicant if following an examination, he is satisfied that the applicant meets the initial requirements for [her] stay ... .
8     The applicant failed to submit an application for the restoration of her temporary resident status within the specified period. I also note that, despite the fact that the applicant states that she was unable to obtain her passport in a timely fashion, having received it in March, she nevertheless could have submitted her application within the period set out in the Act.
9     The language in section 182 of the Regulations is not discretionary: if the application for restoration is brought outside of the 90-day period imposed by law, the officer must refuse the application (Novak v Canada (Minister of Citizenship and Immigration), 2004 FC 243 at paragraph 30).
10     Even though one of the objectives of the Act is "to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism ... and cultural, educational and scientific activities" (paragraph 3(1)(g) of the Act), Justice Gauthier explained the following in Sui, above: "[t]his objective must obviously be balanced with the need to maintain the integrity of CIC's programs and to promote due compliance with the various obligations set out in [Act]" (at paragraph 51).
11     In summary, the applicant breached the requirements that Canadian legislation imposed on her in view of keeping her legal status in the country; the officer had no choice but to refuse the applicant's post-graduation work permit application because she no longer held temporary resident status.
12     Consequently, the application for judicial review is dismissed.
13     The applicant proposed the following question for certification:
• [TRANSLATION]
• Does temporary resident status rely on changing circumstances (civil war) in the applicant's country of origin? In other words, the application for restoration deadline remains the same even in situations where there is a crisis in the country of origin.
14     I find that this is not an issue raised in the circumstances of this case. Consequently, no question will be certified.

JUDGMENT
THE COURT ORDERS AND ADJUDGES that the application for judicial review be dismissed. No question is certified.