Exercise Caution When Claiming Dual Intent on Study Permit Applications

In assessing an application for temporary residence, an officer should consider, among other factors, the following:

• the length of time that the client will be spending in Canada
• means of support
• obligations and ties to the home country
• the purpose and the context of the stay
• the credibility of documents and information submitted
• past compliance with requirements of the IRPA and the Immigration and Refugee Protection Regulations (IRPR) that are applicable to temporary residents (visitors, students and workers), as well as information available in biographic and biometric information sharing

Assessing an application where there are dual intent implications is no different from assessing any other temporary residence application. Each applicant receives the benefit of a procedurally fair, individual assessment. The applicant must, in turn, satisfy the officer that they meet all the requirements of the IRPA and the IRPR relating to temporary residence, before any temporary residence application is approved.

If an officer has concerns or doubts about the applicant’s intentions, the applicant must be made aware of these concerns and given an opportunity to respond to them. If an application for temporary residence is not approved, the officer will provide the client with a letter explaining why the application has been refused.

To me, I think it is all about the last paragraph of IRCC’s guidance that the ‘applicant must be made aware of concerns and doubts’ and the Officer must give the Applicant an opportunity to respond. This runs directly counter to some of the speculative decisions we see that extend beyond the evidence provided. Ultimately, this creates the whole dilemma between sufficiency of evidence and credibility which will be a topic of a future blog.

However, on this point, it is worth highlighting Mr. Justice Campbell’s decision in Yaqoob v. Canada (Citizenship and Immigration), 2015 FC 1370 (CanLII). Very similar to many study permit refusals a trite, short summary was provided to a very detailed application which included very extension dual intention submissions that set out the pathway to PR. Here, Mr. Justice Campbell read between the lines that there must have been some credibility concern for which an opportunity to respond was denied. He also awarded costs to the Applicant. I read this decision as a bit of an outlier (where the dual intention submission was entirely ignored it appears). That being said, it would set a good precedent if more decisions would turn the way of Yaqoob. This would force IRCC either to refuse by properly addressing evidence or else cap the number of applicants if that is ultimately the concern, rather than arbitrarily refuse with pro forma refusal reasons and letters.

Nevertheless, this misunderstanding and confusion may be further reason to not create or counsel a ‘dual intention’ where none may currently exist. For example, many international students only learn about permanent residence options through counsel or advisors and do indeed wish to come to study and then decide their plans after. Presenting this single intention does not in any way hurt an international student’s study permit application. Of course, there may be other factors that do require addressing dual intention head on.

4) Dual intent not as effective as a back-end argument on judicial review. Courts still struggle with applying this concept in reviewing decisions.

In several cases I reviewed, it appeared that dual intention was not raised on the initial application but later argued on judicial review as a failed consideration by the Officer.

In these cases, it appears the Courts effectively sidestepped the question by stating that the Applicant’s failed to discharge their burden and/or the Officer took into account reasonable factors.

In Ali v. Canada (Immigration, Refugees and Citizenship), 2018 FC 702 (CanLII), Madam Justice Strickland acknowledged the submission but stated that ultimately, the Applicant had to first demonstrate that he or she would leave Canada at the end of their authorized stay and that this was not demonstrated.

She writes:

[23] As to the written submissions of the parties as to dual intent, as stated by Justice Gascon in Solopova (at para 30) this Court has confirmed that a person may have the dual intent of immigrating and of abiding by the immigration law respecting temporary entry (Kachmazov v Canada (Citizenship and Immigration), 2009 FC 53 (CanLII) at para 15). The two intentions are complementary, not contradictory (Loveridge v Canada (Citizenship and Immigration), 2011 FC 694 (CanLII) at para 18 (“Loveridge”)). However, the burden lies on the applicant to first demonstrate that he or she will leave at the end of their study period (Loveridge at para 20, Wang v Canada (Citizenship and Immigration), 2009 FC 619 (CanLII) at para 14). In Solopova, as here, this threshold requirement has not been met.

Similarly in Cayanga v. Canada (Citizenship and Immigration), 2017 FC 1046 (CanLII), Mr. Justice Boswell did not delve into the Applicant’s argument that the officer failed to consider dual intention and that all temporary resident visas are premised on the idea that individuals may come to Canada to improve their economic situation (para 9). Nor, was the Respondent’s response that dual intention is permitted but reasonably found not to exist in this matter. Mr. Justice Boswell focused his reasons on the fact that evidence utilized was not extrinsic and that there was nothing unreasonable about the factors considered and applied deference to the officer’s decision.