Docket: IMM-326-16
Citation:
2016 FC 1019
Ottawa, Ontario, September 8, 2016
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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LAKSHMAN
SANTOSH KUMAR NOOKALA
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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
[1]
The Post‑Graduation Work Permit Program
allows foreign students who have graduated from a participating Canadian
post-secondary institution to gain Canadian work experience. Skilled Canadian
work experience gained through the Program then helps graduates qualify for
permanent residence in Canada.
[2]
There are a number of criteria that must be
satisfied for a student to qualify for a Post‑Graduation Work Permit.
Amongst other things, the individual must have completed a program of study of at
least eight months’ duration, and have received written notification from their
educational institution indicating that they are eligible to obtain a degree or
diploma. Applicants must also have a study permit that is valid at the time
that the application for a Post‑Graduation Work Permit is made.
[3]
Lakshman Santhosh Kumar Nookala is a citizen of
India who arrived in Canada in August of 2013 to attend Concordia University.
His study permit was valid from August 28, 2013 to August 31, 2015. On August
6, 2015, Mr. Nookala was advised that he had completed his studies, having
earned a Master’s degree in Industrial Engineering from Concordia.
[4]
Nothing prevented Mr. Nookala from applying
for a Post‑Graduation Work Permit prior to the expiry of his study permit
at the end of August, 2015, other than the fact that he chose to take a
vacation after completing his university program.
[5]
Although his application documentation was
somewhat confused, it is common ground that Mr. Nookala applied for a Post‑Graduation
Work Permit on September 12, 2015, after his study period had expired. As a
consequence, Mr. Nookala’s application for a Post‑Graduation Work
Permit was accompanied by an application to restore his status, pursuant to
section 182 of the Immigration and Refugee Protection Regulations,
SOR/2002-227.
[6]
An immigration officer held that because Ms.
Nookala was not in possession of a valid study permit at the time of his
application, he was not eligible for a Post‑Graduation Work Permit. The
officer also refused to restore Mr. Nookala’s status.
[7]
Mr. Nookala says that the immigration
officer fettered his or her discretion by requiring that he have a valid study
permit in order for him to be eligible to apply for a Post‑Graduation
Work Permit.
[8]
According to Mr. Nookala, the only basis
for the immigration officer’s determination that a valid study permit is
required in order to be eligible for a Post‑Graduation Work Permit is
what he calls the respondent’s “Policy Guideline”
for the Post‑Graduation Work Permit Program. Mr. Nookala submits
that it is well-established that administrative guidelines are not law, and
that, therefore, the Post‑Graduation Work Permit Program “Guidelines” cannot bind the Immigration Officer’s
decision.
[9]
As will be explained below, I do not accept Mr. Nookala’s
arguments. As a result his application for judicial review will be dismissed.
I.
Analysis
[10]
The standard of review to be applied to the
immigration officer’s decision in this case is that of reasonableness: Ur Rehman
v. Canada (Minister of Citizenship and Immigration), 2015 FC 1021 at para.
13, [2015] F.C.J. No. 1015.
[11]
Fettering of discretion occurs when a
decision-maker treats guidelines as mandatory: see, for example, Canadian
Reformed Church of Cloverdale B.C. v. Canada (Minister of Employment and Social
Development), 2015 FC 1075, 2015 F.C.J. No. 1089. The operative portion of
the document establishing the Post‑Graduation Work Permit Program is not,
however, a “guideline”, as that term is used in
the jurisprudence: see, for example, Kanthasamy v. Canada (Citizenship and
Immigration), 2015 SCC 61 at para. 32, 3 S.C.R. 909.
[12]
The Program document at issue in this case
establishes criteria that must be satisfied for a candidate to qualify
for a Post‑Graduation Work Permit. While the Program document also
provides information and guidance as to how the program is to be administered,
nothing in the document confers any discretion on immigration officers to
modify or waive the Program’s eligibility requirements. Consequently, no
fettering of discretion occurred when the immigration officer determined that Mr. Nookala
was required to hold a valid study permit in order for him to be eligible for a
Post‑Graduation Work Permit.
[13]
Mr. Nookala agrees that it was open to the
Minister to establish the Post‑Graduation Work Permit Program under
section 205 of the Regulations. This provision allows the Minister to create
programs allowing foreign nationals to receive work permits where the Minister
deems it necessary for, amongst other things, reasons of public policy relating
to the competitiveness of Canada’s academic institutions or economy.
[14]
Mr. Nookala also accepts that it is open to
the Minister to establish eligibility criteria for programs such as the Post‑Graduation
Work Permit Program, and indeed, he does not take issue with the majority of
the eligibility criteria. However, as I understand Mr. Nookala’s argument,
he says that it was not open to the Minister to create an eligibility criterion
that had the effect of rendering a provision of the Regulations meaningless.
[15]
Mr. Nookala submits that section 182 of the
Regulations expressly allows for a temporary resident who has been in Canada on
a study permit to have his status restored after the expiry of his study
permit, as long as he applies for restoration within 90 days of the expiry of
the study permit. This is true as far as it goes.
[16]
However, section 182 of the Regulations also
expressly states that for an applicant to be entitled to a restoration of
status, the applicant must also establish that he or she continues to meet the
initial requirements for his or her stay. This makes perfect sense. Indeed, it
is implicit in the notion of “restoration” that
what is being sought is to have a past status restored.
[17]
Perhaps because what he was seeking was a form
of work permit, Mr. Nookala’s application for restoration of status stated
that he was seeking to restore his status as a “worker”.
This request is what was considered by the immigration officer. However, Mr. Nookala
had never held a work permit in Canada, and the officer’s decision to refuse
his request for restoration was thus reasonable.
[18]
Even if Mr. Nookala’s application and
covering letter could be interpreted as seeking restoration of his study
permit, he also did not meet the requirements of section 182 of the Regulations
for the restoration of that permit.
[19]
To be entitled to a study permit, an applicant
has to be accepted into a program of study at a designated Canadian learning
institution: see subsection 216(1)(e) of the Regulations. Thus, in accordance
with the express wording of section 182 of the Regulations, in order to be
entitled to a restoration of his status, Mr. Nookala had to establish that
he had been accepted into a program of study at a designated learning
institution at the time of his restoration application in order for his
study permit status to be restored. However, Mr. Nookala completed his
studies in August of 2015, and was no longer enrolled in a Canadian educational
program. Consequently, Mr. Nookala no longer met the initial requirements for
his stay, with the result that he did not satisfy the requirements of section
182 of the Regulations.
[20]
Mr. Nookala suggests that it was open to
the immigration officer to “momentarily” restore
his student status so that he would qualify for a Post‑Graduation Work
Permit. He has, however, provided no authority to support this argument, which
flies in the face of the express wording of section 182 of the Regulations. The
decision in Ni v. Canada (Citizenship and Immigration), 2014 FC 725, [2014]
F.C.J. No. 814, cited by the applicant did not consider this issue, and thus
provides no assistance to the applicant.
[21]
I also do not agree with Mr. Nookala that by
requiring that an applicant have a valid study permit in order to be eligible
for a Post‑Graduation Work Permit, the Minister has created a criterion
that makes section 182 of the Regulations meaningless.
[22]
Mr. Nookala could have sought to have his
status under a study permit restored in accordance with section 182 of the
Regulations, if he met the requirements of that provision: that is, if he was
still enrolled in a post-secondary program. Nothing in the Post‑Graduation
Work Permit Program changed that.
[23]
However, because Mr. Nookala was no longer
in school, he failed to satisfy the requirements of section 182 of the
Regulations. Because Mr. Nookala did not hold a valid study permit at the
time that he applied for a Post‑Graduation Work Permit, he also did not
meet the requirements of the Post‑Graduation Work Permit Program. It was,
therefore, entirely reasonable for the officer to deny Mr. Nookala’s
application for the Work Permit.
Addendum
[24]
After these reasons had been completed, but
before they were signed, the applicant provided the Court with a portion of a
guideline published on a Departmental website. The operative position of the
guideline states that “the phrase ‘initial requirements
for their stay’ should not be read too literally when it is being applied in
the context of a restoration application”. The guideline goes on to
state that “the preferred interpretation in this
context would be that the person seeking restoration must meet the requirements
of the class under which they are currently applying to be restored as a
temporary resident”.
[25]
According to Mr. Nookala, this means that an
individual who has previously held a study permit can have their status “restored” to a work permit, including a Post‑Graduation
Work Permit.
[26]
I do not need to decide in this case whether
this interpretation suggested by the Departmental guideline is a reasonable
one. The decision to refuse Mr. Nookala’s restoration request was one that
accorded with the express language of section 182 of the Regulations. It was,
therefore, well within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law. In other words, it was reasonable.
II.
Conclusion
[27]
For these reasons, the application for judicial
review is dismissed. No question was proposed for certification by the parties and
none will be certified.
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