February 27, 2019

Study Permit Cases Should Be Decided on Individual Factors and Not Stereotypes or Generalizations

Posted by Mario Bellissimo - Bellissimo Law Group PC

The case of Caianda[1] we recently litigated involved the refusal of a study permit. The Officer did not believe the Applicant was being truthful about his intentions.  The Officer concluded that the Applicant “is not a bona fide student,” there is “significant gap” in his education, his proposed program of study did not “appear a natural progression” from his previous credentials and work experience, and that there were English as a Second Language (“ESL”) programs “in region” that were similar to the program in Canada.

We argued this determination was based in the Applicant’s arguments upon unforeseeable credibility concerns (he would not leave, course of study, gap in schooling) which were not put to the Applicant and to which the Applicant was not given an opportunity to respond and factual errors unsupported by the record.  The Applicant also argued the Officer failed to properly assess important, credible, and highly relevant evidence including the ESL course he was taking was a compulsory requirement of admission to his program of study in Canada, he could not take another ESL course at a different location, why he was resuming studies later in life, his dual intention, the course of study was linked to his previous study and his significant ties to his home country. In all, the Applicant was of the view he presented an application that was complete and met all legal requirements.

It is well established in law when considering a study permit application, immigration 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.[2]

The Respondent argued the concerns arose from the legislative requirements and it was an insufficiency of evidence finding and reasonable.  There was no procedural breach, no right to an interview and the Applicant was simply disagreeing with the weight assigned by the Officer to the evidence.  Although there may have been other options open to the Officer the negative finding based upon this rational was still within the range of reasonable outcomes.  The Court did not agree and the Honourable Justice Grammond determined the decson was unreasonable.[3]

This case in my view is a good reminder that these applications should not be based upon generalizations and stereotypes but upon an applicant’s individualized circumstances.[4] So, in these types of circumstances suspicions, stereotypes, generalizations or whatever the description have no place. Simply put, the Applicant’s 250 plus page application for a study permit was complete and met all legal requirements and he was owed the opportunity to have his individual circumstances considered.  Anything less is not reasonable and the Federal Court agreed.

For a more detailed discussion of this stage please subscribe to Immquest in our publications section – click here

For more information on applying for a study permit or challenging a refusal please contact us

Thank you for reading.