Learning moments – Out of status minor child who wishes to continue studies in Canada
July 29, 2020
Question:
Hello, fellow practitioners!
Today’s question deals with an out of status minor child who wishes to continue studies in Canada.
Question:
My client is a minor child (13 years old). She has been studying in Montreal, Quebec since 2017. Her most recent study permit was valid until 20/10/2019.
Her CAQ application was submitted on 18/09/2019. She was issued a CAQ on 22/01/2020, but with a very short validity until 21/03/2020! After communicating with the Quebec Immigration office and informing them of the short validity date of CAQ, later they amended the CAQ with expiry date of 30/09/2020.
Soon after receiving the amended CAQ with a validity date of up to 30/09/2020, I filed for her study permit extension on March 02, 2020. But, on the date of study permit extension application, the applicant’s study permit was expired and more than 90 days (restoration period) was passed. So, her study permit extension application was refused on May 14, 2020 and it was stated in refusal letter that:
You are a person in Canada without legal status and as such are required to leave Canada immediately. If you do not leave Canada voluntarily, enforcement action may be taken against you.
Due to the special situation of COVID-19, the closure of borders, flight cancellations and many more, the minor child student applicant has not been able to leave Canada so far.
It needs to be noted that the applicant and her family members had filed an immigration application under QIIP, their application was approved, investment made, CSQs issued and their federal application is under process since 2017.
So, my question is what would be any other option rather than leaving Canada for my client?
Answer:
There were a number of errors here that led to the client being in this situation. It’s not clear whether the errors were from the client side or another party, but it’s worth taking a look at them.
1. The first error was that the application for a CAQ should have been made earlier so that it would have been issued before the expiration of the study permit. It appears that the CAQ was applied for only one month prior to the study permit expiry.
2. In addition, once the CAQ was pending, a study permit extension application should have been submitted before her study permit expired on 20/10/2019. This would have kept the student in implied status until a decision was made on the extension application. Even without the CAQ, the client should have applied by explaining that the CAQ was under process. There is a chance that the CAQ might have been issued and could have been added to the file before a decision was made. Even if not, it would have kept her in status for a few months more.
3. It is a mystery why the client applied for a study permit extension in March, 2020 when she was already long out of status and not even within the restoration period. That application was without merit and was doomed to failure from the beginning.
It’s not clear from the description who was at fault for any or all of the above, but if any of these errors were caused by you, you have an ethical duty to inform the client of the errors made, and to ask if they want to continue with your representation or whether they prefer to be referred to someone else.
In any event, nothing can now be done about what’s in the past. The only possible remedy, other than the student leaving Canada and reapplying for a new study permit from abroad, would be to apply for a Temporary Resident Permit (TRP) under s.24 of IRPA. That section states as follows:
A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this act becomes a temporary resident if any officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
At this point, your client is inadmissible under s.41 of IRPA because of non-compliance (here without status). Consequently, if she can convince an officer that it is justified in the circumstances, she might be able to get a TRP, and she would then become a legal temporary resident again. She could also apply concurrently for a new study permit, as per R215(1)(e) which states that a foreign national may apply for a study permit after entering Canada if they hold a temporary resident permit issued under subsection 24(1) of the Act that is valid for at least six months.
An application for a TRP involves a discretionary decision. An officer must be subjectively convinced that it is “justified in the circumstances”. You can make virtually any arguments you want to, but keep in mind that you are asking for an exception to the rule, and therefore you must motivate your request with lots of evidence and convincing arguments. Best interests of the child is a relevant factor to be considered. (See Shabdeen v. Canada (Citizenship and Immigration), 2020 FC 492(CanLII), par. 16, http://canlii.ca/t/j6dmj#par16
The policy guidelines for these applications can be found here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/permits.html
I do think you have a reasonable argument to make, given the fact that:
- The family is already approved under the Quebec Investor Program and has made their investment
- Prior to the incident in question, there is no evidence the child violated any rules
- The child is not at fault for the failure to file her applications on time (keep in mind that if any of the fault lies with you as the representative, then you are in a conflict of interest and you should withdraw and refer the client to another counsel)
- COVID has prevented the child from departing in a timely manner even had she wanted to
- There may be other arguments that it is not in the best interests of the child to disrupt her life and education by forcing her to go back to her country
Remember that there is no guarantee of success in such an application, and the processing times can be very lengthy (typically at least 6 months even before COVID). During that time the child will remain out of status. Should the child’s parents decide to keep her in Canada despite the lack of status, keep in mind that s.30(2) of IRPA allows the child to study without a permit unless either of the parents is in Canada as a visitor. Obviously you cannot counsel the client to violate the law by overstaying her status and failing to depart as directed, but should they decide to do so anyway, the child will likely be allowed to study without a permit.
Another thing to keep in mind is that if the child remains out of status, and therefore non-compliant under s.41 of IRPA, and therefore inadmissible, then her inadmissibility will affect the rest of her family members for the purpose of their application for permanent residence, as per s.42 of IRPA. It is therefore extremely important that you either acquire a TRP for the child or else the child should depart Canada prior to a decision being made on the permanent resident application.
