Student Visa Regime - Part 2

In Part 1, I discussed the general framework of the student visa application. The program delivery instructions, also called PDI are very helpful for someone who wishes to apply themselves.

Requirements for a study permit - Legal Requirments

Note: Students are Temporary Residents and all general conditions under s.183 of the Regulations are applicable.

1. Acceptance letter from DLI.

2. Proof of Identity.

3. Admissible to Canada.

4. Must intend to leave Canada at the end of studies (remember studies can finish before the authorized period of stay).

5. Financial Sufficiency.

Bona fide Students (Genuineness test)

There is nothing as such "Bona fide" in the Act or the Regulation, rather this is an extension of s.216 of the Regulation.

A bonafide student would intend to come to Canada and study for their career progression. This is accessed on an individual basis. The common factors that an officer can consider are:

1. Age of the applicant,

2. Change in career plan,

3. Choosing the lower level of studies,

4. Choice of School,

5. Family in the home country,

6. Years of employment or limited job opportunities in the home country.

These factors are important and must be explained (if relevant) through a submission letter. As said above, these factors are assessed on an individual basis and are personal, many applicants would want to copy ideas from the submission letter of a successful applicant which should be avoided.

Another thing officers look for is a study plan, which should explain how you selected the study program, choosing to study in Canada over your home country, and future opportunities.

Ties to home country, (in other words factors or reasons for which applicant would come back)

This factor is again an extension of s.216 of the Regulations, the officer will issue a study permit if satisfied that the applicant will leave Canada by the end of the period authorized for their stay determined based on ties to the home country.

Most refusals are based on this because applicants are not able to understand what they need to provide as evidence to satisfy this condition.

Ties to home country are subjective which include economic, financial and family. Any genuine reason (supported by the evidence) an applicant puts forward under this factor will be considered.

Proof of Funds

Covered in part 1

More details can be found on the IRCC website here.

Study Permit Conditions

IRCC has a summary regarding the study permit conditions which can be found here.

Students are recommended to be knowledgeable about these conditions to avoid any problems.

Key point:

1. Students need to be cautious and maintain full-time status (except last semester). Every DLI has its own definition of full-time/part-time status which is reflected in transcripts. For example, when I was a student at university for my master's program, enrollment in a single course was regarded as full-time student status.

2. Leave of absence should not be more than 150 days and authorized by DLI.

3. Students must update IRCC if they are changing their DLI, however, it is not needed if they change the program at the same DLI.

NEW REFORMS

The year 2023 has been challenging for many international students who became victims of fake LOE. In this scandal, questions were raised about why IRCC at the time of visa application didn't verify these LOE and CBSA at the POE, ultimately implementing a stronger scrutiny process.

This scam got the limelight this year but it has been going on for a little while. CBSA has been following this scam for a while. The article for one news report shows an officer from CBSA has been investigating this matter for a very long time. As per this article, this scam originally started with some individuals who came to Canada by providing fake LOEs from the University of Waterloo. UoW is the premier educational institution in Canada, highly reputed in the field of science and engineering. Officers during the assessment have to determine that the applicant is a bonafide student, providing an offer letter from premier institutions would create an impression of genuine students.

This is also reflected in IRCC's internal policies and manuals.

To know more about this issue refer IRB case of Singh.

The government already had a process in place to maintain the integrity of the Student visa regime by communicating with DLI, where DLI would regularly share details with the government using the DLI portal. From December 1, 2023, now, DLI has to confirm every LOE directly with IRCC. IRCC also plans to process study permit applications faster for certain DLIs (recognized institutions) that have better credibility and level of service.

UPDATE - 07 Dec 2023 IRCC on 07 Dec 2023, released updates related to the student visa program. 1. The bar for financial sufficiency is raised to CAD 20,000 from CAD 10,000 in addition to the first year. This bar is now expected to change every year based on LICO.

2. The policy to allow international students to work full-time during full-time studies is extended till April 30, 2024. This is only applicable to current study permit holders and applicants who have submitted their application as of December 07, 2024. The GoC also indicated that they are considering allowing students to work for 30 hr during full-time studies in future. In my opinion, this should only be allowed for FN when the residence, work location and school are outside metropolitan cities (promoting small and rural communities).

3. Students who begin their study program before September 1, 2024, can still benefit from distance learning facilitative measures and count the time spent on online (should be less than 50%) courses toward PGWP.

4. Temporary policy to extend PGWP, will not be extended a fourth time. The Government is expected to provide updates on the SDS program soon. From this announcement, the most affected group will be PGWP holders.

Common Scenarios and Case Law

1. Wang, 2020 FC 262, where the applicant used an agent who submitted a falsified transcript to secure admission to York University. The officer found discrepancies in the application submitted to the university and refused the application based on misrepresentation. The court determined misrepresentation (direct or indirect that induced or could induce an error in the administration of the Act) has to be to IRCC and not to a third party.

2. Patel, 2020 FC 77, where an officer concluded that the applicant was not a bona fide student (one of the reasons). The court in this case determined that the officer breached Mr. Patel's right to procedural fairness. Procedural fairness for a TRV application falls on the low end of the spectrum and the applicant must provide sufficient evidence in the application to address possible concerns. However, this changes when the officer is concerned about the credibility of the evidence. Procedural fairness is also triggered when the officer is relying on extrinsic evidence that the applicant might not be aware of.

3. Ran, 2023 FC 1447, this recent judgement from the Federal Court is important for applicants whose application has been delayed for no reason. The court granted a mandamus order with a deadline. In this case, a Chinese FN who got LOA from UoT faced an unreasonable delay in processing her application.

4. Wang, 2020 FC 262, in this case, FN (through an agent) provided falsified documents to DLI to secure LOE, and IRCC refused the application based on misrepresentation. The FC quashed the decision and determined that the misrepresentation had to be directly to IRCC, not to a third party.

5. Afuah, 2021 FC 596 AND Patel 2020 FC 77, to overcome challenges related to locally available alternative study programs in the home country.

6. Generally, study permit applications are submitted before entry or outside Canada, however, if you are already in Canada and fall under certain conditions as described in Regulation (R215), you can apply for study permit application inside Canada too. This area of law has become more common in practice due to recent changes in policies for family reunification.