Docket: IMM-1643-15
Citation:
2015 FC 1356
Toronto, Ontario, December 7, 2015
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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RAJENDRA PRASAD
APPIDY
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
UPON an application for
judicial review of a decision of an Officer of Citizenship and Immigration
Canada dated March 30, 2015, wherein the Officer did not grant a Post-Graduate
Work Permit to the Applicant under the Post-Graduate Work Permit Program
(PGWPP);
AND UPON being satisfied
that the Applicant, who is self-represented and did not appear at the December
3, 2015 hearing of this application, was given notice of the hearing in
accordance with the Federal Courts Rules;
AND UPON reading the material
before the Court, including the parties’ written submissions, and hearing the
oral submissions of the Respondent;
AND UPON determining that this
application is allowed for the following reasons:
[1]
The Applicant is a citizen of India who was
issued study permits authorizing him to study in Canada from May 5, 2013 to
August 31, 2014. In that time, he completed a one year program of study at
Fanshawe College in Information Security Management, as a result of which he
was given advanced standing and completed a two year program in General Arts
and Science at Niagara College over the course of one semester.
[2]
The Officer denied the Applicant’s application
for a Post-Graduate Work Permit on the basis that 5 of the 6 classes he
completed at Niagara College were online courses and the PGWPP provides that
students who participate in and complete their program of study by distance
learning are not eligible for the issuance of a work permit under the PGWPP.
The Officer considered only the Applicant’s final program of study to determine
his eligibility. The PGWPP requires that applicants apply for a permit within
90 days of written confirmation from the educational institution of completion
of the program of study. As a result, the Officer found that the Applicant’s program
at Fanshawe College did not qualify for consideration.
[3]
The Applicant argues that he completed two years
of full time studies in Canada and that only 25% of his courses were taken
online, and even then at the suggestion of his professor, and 75% of his
courses were taken in-class. Specifically, the Applicant obtained 42 in-class
credits from Fanshawe College and 3 in-class credits from Niagara College. Only
15 credits were obtained online. The Applicant also argues that he paid the
full time student fee under the legitimate expectation that he would be granted
a three year work permit.
[4]
The Respondent argues that the Officer’s
decision was reasonable as it was based on the conclusion that the Applicant
had completed the majority of his program of study via distance learning. A
letter from Niagara College indicates that, of the 6 courses he took in his
last semester to complete his two year program, 5 were completed online. As the
Applicant’s one year diploma from Fanshawe College was completed in December
2012, more than 90 days before the Applicant applied for the work permit, it
could not be taken into account in the assessment of whether the Applicant’s
studies were eligible for the permit.
[5]
I consider the applicable standard of review to
be whether the Officer’s decision is reasonable (see Rehman v Canada
(Citizenship and Immigration), 2015 FC 1021).
[6]
My decision is that the Officer’s decision was
not reasonable because of the failure to take into account the in-class credits
earned by the Applicant though his study at Fanshawe College. The Officer
relies on the portion of the relevant Citizenship and Immigration Canada Manual
(CIC Manual) related to the PGWPP, which reads as follows:
Applicants must apply for a work permit within
90 days of receiving written confirmation (for example, a transcript or an
official letter) from the educational institution indicating that they have met
the requirements for completing their program of study. Calculation of the 90
days begins the day when the student’s final marks are issued or when formal
written notification of program completion is received.
(Emphasis in original)
[7]
The issue with the Officer’s reliance on this
portion of the CIC Manual, to exclude from consideration the courses completed
by the Applicant at Fanshawe College, is the fact that the credits from those
courses formed part of the requirements for the Applicant’s program of study at
Niagara College. The Applicant’s explanation of his educational process,
contained in the Certified Tribunal Record, describes the transfer of his
credits from Fanshawe College to Niagara College, allowing him to take the
remaining credits at Niagara College to complete a two year course. Indeed, the
Officer’s decision notes that the Applicant was given advanced standing and
completed a two year program of study over the course of one semester at
Niagara College.
[8]
As such, it was not reasonable for the Officer
to interpret the CIC Manual as precluding consideration of the credits from
Fanshawe College, as those credits formed part of the requirements for
completing the Applicant’s program of study at Niagara College. The Officer did
not take issue with the timeliness of the Applicant’s application for a
Post-Graduate Work Permit following receipt of the requisite confirmation from
Niagara College. Therefore, the Officer acted unreasonably in relying on the
CIC Manual to assess the application based only on the courses actually taken
from Niagara College, rather than based on all credits that contributed to the
Applicant meeting the requirements for the course of study the Applicant
completed at Niagara College.
[9]
No question of general importance has been
raised for certification for appeal.
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