September 18, 2018

Post Graduate Work Permits – When Policy is Law?

In an upcoming issue of Immquest we look at the Elliot Brown case involving an application for judicial review of a decision made by an immigration officer (the “Officer”) refusing to issue the Applicant a Post-Graduate Work Permit (“PGWP”).  In my mind this case raised two broader issues that transcended the issues before the Federal Court in Brown including when the application of immigration policy creates legitimate expectations and when policy can be applied without discretion, as law.  We ask some important questions and how policy, unless it is being applied as delegated legislation by the decision maker, the decider should always be able to exercise discretion and the creation of legitimate expectations is critical and changes should be only effected with proper notice.

In Brown, the Applicant argued that the PGWP Policy conflicts with and is precluded by section 200 of the Immigration and Refugee Protection Regulations (IRPR), which provides that a work permit shall be issued to any foreign national that meets the conditions listed in that provision because the PGWP Policy adds more stringent requirements that conflict with the IRPR.  The Honourable Mr. Justice Manson however disagreed and concluded that when “one reads the PGWP Policy and sections 200 and 205 of the IRPR together, it is clear that a PGWP applicant must meet the eligibility criteria in the PGWP Policy in order to satisfy the requirements of sections 200 and 205 of the IRPR.”  Justice Manson concluded that the eligibility criteria established by the PGWP Policy are mandatory and must be satisfied in order for a candidate to qualify for a PGWP and that an Officer has no discretion to modify or waive the eligibility requirements.  The Court also found the decision was reasonable and the Charter did not apply.  Two very interesting issues arise from this decision.

Legitimate Expectations

First, the Applicant argued what constitutes “a private post-secondary institution that operates under the same rules and regulations as public institutions” is unclear and there is no list of those private institutions. Further an institution may be listed as a designated learning institution (DLI) and a public list of DLIs is maintained, but a DLI listing does not necessarily mean that the students of that institution are eligible for a PGWP.  This is clearly confusing to students and can be misleading.  It would appear this was not always the case and the application of what DLI qualified students for PGWPs changed with little notice.

Herein, applicants that enrolled in institutions, that marketed themselves as PGWP eligible presumably based upon an understanding with immigration authorities, could reasonably expect that they would have qualified.  Was there a requirement of provide adequate notice to prospective international students given the cost of foreign tuition rates and how much time and energy many individuals put into educational programs with a hope of personal development and potential immigration pathways?

In Komlijenovic, a decision released on 27 April 2018 immediately following Brown, the Applicant represented by the same counsel, attended the same school as Elliot Brown and experienced a very similar process and details the harm caused by the confusion and misconception, the answer was no. Of note is paragraph 6 that states the IRCC websites says “make sure your program qualifies. Not all programs offered at [DLIs] are eligible.” Is this ‘notice’ enough to dispel any ‘legitimate expectation?  The Court has held in a few decisions including a decision entitled Osahor the Officer did not act unreasonably and properly applied the restrictions in the PGWP policy and no issue of legitimate expectation arose. This reasoning was adopted by Justice Brown in Komlijenovic and clearly an applicant’s argument regarding legitimate expectation is limited if not grounded in a substantive right.  Which leads us back to the issue of when policy can be applied as law in PGWP cases.

A long-established principle that policy is not law was expressed in a decision nearly thirty years ago entitled Pinto.  In a more recent decision Frankie’s Burgers Lougheed Inc. case involving a Labour Market Impact Assessment (LMIA refusal) the Federal Court reiterated administrative guidelines cannot be applied as law.  In the aforementioned Osahor case, Mr. Justice Gleeson held that the “Minister must be in a position to establish program criteria.”

In the Immquest piece we ask a number of questions that arise when comparing Brown, Komlijenovic, Osahor and Frankie Burgers.  Were the former three cases referring in essence to delegated legislation?  Should a distinction be drawn when the policy sets out the very eligibility requirements for a particular permit or class, like PGWPs? Should reasonable departures be permitted in any application of policy for deserving cases?  Questions representatives and applicants alike may want to contemplate when considering the PGWP program.

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