Docket: IMM-2712-14
Citation:
2014 FC 1012
Vancouver, British Columbia, October 23, 2014
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
|
BETWEEN:
|
|
MICHELLE WONG KA PO
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The applicant seeks judicial review of the
refusal by the respondent Minister of Citizenship and Immigration to restore
her study permit and co-op work permit.
[2]
The applicant, a citizen of Malaysia, was studying business at Sprott Shaw College under a student visa. Her programme included
980 hours of coursework and 980 hours of employment through a co-op
arrangement for which she held a work permit.
[3]
Her student visa expired during the programme.
She made a timely application for its restoration. The Minister denied the
application, giving only the following explanation from the examining officer:
I’m not satisfied that you meet the
requirements as a genuine student as per R183(1) and co-op work permit as per
R205(c).
[4]
The officer’s notes show that the application
was denied because the work component exceeded 50% of the programme, in
violation of the Minister’s policy. Originally the work component was exactly
50%, but the student received an exemption from five courses. By the officer’s
calculation, the academic component, excluding the exempted courses, totalled
802 or 826 hours, and the work component remained at 980 hours. Since work
represented 54–55% of the programme, she found the applicant to be ineligible.
[5]
The sole issue is whether the officer breached the
applicant’s right to procedural fairness by not offering the opportunity to
address the officer’s concerns.
[6]
The Immigration and Refugee Protection
Regulations, SOR/2002-227, subparagraph 205(c)(i), allow for
issuing a work permit “to a foreign national who intends
to perform work that … is designated by the Minister as being work that
can be performed by a foreign national on the basis of [being] work that is
related to a research, educational or training program”.
[7]
Citizenship and Immigration Canada’s Foreign
Worker Manual FW 1 (29 January 2013) stipulates in s 5.37:
The following academic or training programs and
research activities are designated as work which can be performed by a foreign
national based on the criteria listed in R205(c)(i), C30:
1. foreign students, (excluding those coming to
work in medical residency or medical fellowship positions with the exception of those
in the field of veterinary medicine), whose intended employment forms an
essential and integral part of their course of study in Canada and this
employment has been certified as such by a responsible academic official
of the training institution and where the employment practicum does not form
more than 50% of the total program of study.
[8]
On its face, the officer’s calculation suggests
that employment represents more than the authorized 50% of the applicant’s time
in the programme. However, the officer does not explain her conclusion that,
solely because the applicant was exempted from five courses, “the program ha[d] been changed to a program with a Theoretical
component of 802 hours and a co-op work component of 980 hours.” Academic
institutions routinely offer exemptions for manifest mastery of the
material. The exemptions do not change the programme itself; they merely waive coursework
when the student has already fulfilled the requirement.
[9]
For example, a programme that required
168 hours of courses in basic French could reasonably exempt a francophone
student from that requirement. He might then find himself with only
802 hours of coursework and a 980-hour co‑op. Likewise, the applicant
in the present situation might have won a sensible exemption from five courses
by demonstrating mastery of the subject matter (“Computerized Accounting
Principles”, “Database Applications”, “Critical Skills in Communication”,
“Business Writing”, and “Powerful Presentations”) through prior training,
experience, or examination. If so, the visa should not have been denied solely
because of the exemption.
[10]
I recognize that a raft of exemptions could
suggest abuse, particularly if they minimized the academic component. The
Minister enjoys discretion to deny visas for programmes that are nothing more
than ruses to facilitate employment in Canada under the pretence of study. In
the case at bar, however, an exemption reducing the academic component from 50%
to 45% or 46% of the total does not stand out as a manifest abuse of the
work–study scheme. The conclusion that the exemption changed the very nature of
the programme requires a stronger basis in fact than the officer provided. In
such a case, she should have sought an explanation of the exemption before
drawing that conclusion. The officer’s failure to give the applicant an
opportunity to respond to her concerns, on the facts of this case, amounted to
a breach of natural justice.
[11]
For these reasons, the application for judicial review
is allowed and the matter is referred to a different visa officer for
redetermination.
Email this Content