Hello fellow practitioners! This week’s question deals with rule against counting qualified Canadian work experience for CEC applications, where this experience was obtained while enrolled in a “full time” program of study.
QUESTION:
“A foreign national holding both a Post Graduation Work Permit (PGWP) obtained after completing a diploma program and study permit was enrolled in an undergraduate program in Toronto. They took only one course a semester and did not realize that their program of study was classified as full-time.
The individual was working full-time in a skilled occupation during the time they were enrolled in the undergraduate program and applied for permanent residence through Express Entry under the Canadian Experience Class. Recently, this individual’s permanent residence application was refused as the qualifying Canadian work experience took place while they were enrolled in full-time study and cannot be included in their application as per R 87.1(3)(a) and MI 15(7)(a).
Does this individual have any possibility of fighting this decision based on their low course load, even though the program of study was classified as full-time?
Many thanks for your insights on this matter!”
ANSWER:
As you correctly noted, under s. 87.1(3)(a) of the Immigration and Refuge Protection Regulations (“IRPR”), any work experience that is obtained while an Applicant is enrolled in a full-time program of study cannot be counted towards the Canadian work experience requirement for Canadian Experience Class (“CEC”). On this point, s.
87.1(3)(a) provides as follows:
(3) For the purposes of subsection (2) [i.e. membership in CEC],
(a) any period of employment during which the foreign national was engaged in full-time study shall not be included in calculating a period of work experience” (Emphasis added)[1] Furthermore, s. 15(7)(a) of the Ministerial Instructions respecting the Express Entry system essentially reiterate s. 87.1(3)(a) of IRPR in providing as follows:
(7) For the purposes of this section [i.e. calculating Canadian work experience],
(a) a period of employment during which the foreign national was engaged in full-time study is not to be included in calculating a period of work experience; (Emphasis added)[2] Strangely, the term “full-time study” is not explicitly defined in the relevant portion of IRPR which addresses the CEC requirements (i.e. s. 87.1), yet it is explicitly defined in the relevant portion of IRPR which addresses the Federal Skilled Workers (“FSW”) requirements (i.e. ss. 75-85).
In discussing the FSW requirements, s. 83(2) of IRPR defines “full time study” not in terms of the number of courses that the Applicant is enrolled in (e.g. one course vs. four courses), but rather, in terms of the cumulative hours of instruction that the Applicant receives. On this point, s. 83(2) provides as follows:
(2) For the purposes of paragraphs (1)(b) and (b.1) [i.e. defining “full-time study” for a skilled worker or his/her spouse], full-time study means at least 15 hours of instruction per week during the academic year, authorized under a study permit or under section 188, at a secondary or post-secondary institution in Canada that is recognized by the provincial authorities responsible for registering, accrediting, supervising and regulating such institutions, including any period of training in the workplace that forms part of the course of instruction. (Emphasis added)[3] Using the rules of statutory interpretation, one could argue that if “full time study” is defined as “at least 15 hours of instruction per week” in s. 83(2), then absent any clear statutory or regulatory indication otherwise, the term should be defined in the same way when looking at s. 87.1(3)(a).
Therefore, going back to the case example you provided, if the Applicant’s one course amounted to less than 15 hours of instruction per week, then I think you may have a basis to challenge the classification of their program as being “full-time.” However, if the one course amounted to more than 15 hours of instruction per week, then I don’t think you have a legal basis to challenge the Officer’s finding on this point.
That being said, it is important to note that IRCC has long taken the position that Designated Learning Institutes (“DLIs”) have discretion to determine what constitutes “full-time study.”
[4] As such, you may experience pushback in challenging the Officer’s determination on this point.
In terms of the mechanics of going about challenging the decision, you have a few options:
(1) Submit an Request for Reconsideration with IRCC on the aforementioned basis;
(2) Initiate an Application for Leave and Judicial Review (“AFLJR”) through the Federal Court on the aforementioned basis;
(3) Pursue both the Reconsideration request and the AFLJR concurrently, and discontinue the AFLJR if the Reconsideration request bears positive results.
[1] Immigration and Refugee Protection Regulations (SOR/2002-227) at s. 87.1(3)(a)
[3] Immigration and Refugee Protection Regulations (SOR/2002-227) at s. 83(2)