Exercise Caution When Claiming Dual Intent on Study Permit Applications

Mr. Justice Boswell writes:

[13] It is not unreasonable for a visa officer, as the Officer did in this case, to consider the availability of similar programs offered elsewhere at a lower cost; this is “simply one factor to be considered by a visa officer in assessing an applicant’s motives for applying for a study permit” (see Zuo at para 23). Similarly, it is not unreasonable for a visa officer, as the Officer did in this case, to consider other factors such as the Applicant’s family ties in Canada and his country of residence, the purpose of his visit, his employment prospects in the Philippines, and his travel history.

(emphasis added)

5) Cases may be outdated to a time prior to detailed IRCC instructions.

There have been cases where dual intention was argued successfully in the context of international students and study permit applications. However, I would warn these decisions as possibly being outdated or possibly not even re-occurring on the facts due to other mechanisms available to IRCC.

In Hernandez Bonilla v. Canada (Minister of Citizenship and Immigration), 2007 FC 20 (CanLII), Mr. Justice O’Keefe found that the Applicant (who affirmed through her guardian’s affidavit that she would return to Colombia once her studies were completed) was owed the opportunity to respond to the Officer’s concerns that her formative years would be spent in Canada and that she could not reintegrate into Colombia society and therefore would be unable to leave Canada. Mr. Justice O’Keefe found that this was a generalization that did not take into account the Applicant’s specific facts. Still, again, this decision had the Applicant confirming the intent to return in writing. While dual intention was framed successfully by the Applicant, it was procedural fairness rather than a failure to consider dual intention that won the day.

In Dang v. Canada (Minister of Citizenship and Immigration), 2007 FC 15 (CanLII), another 2007 case, Mr. Justice Kelen found an Officer’s assessment of a study permit extension patently unreasonable – in that it ignored dual intention. The Applicant, Ms. Dang, had a spousal sponsorship refused on bona fides and after an interview focused on that permanent residence application, the Officer refused the study permit extension – citing among other things, a lack of progress in learning English as proof she intended to remain in Canada. Mr. Justice Kelen found that inference patently unreasonable – yet in today’s day in age, with actively pursuing studies requirements and clearer guidelines, arguably an officer would be able to find other grounds to refuse. Dual intention did come handy and I do believe was properly applied in this case.

In light of new instructions and contexts, I am not sure that Madam Justice Heneghan’s decision in Moghaddam v. Canada (Minister of Citizenship and Immigration), 2004 FC 680 (CanLII), would be decided the same way especially now that it is clear dual intention requires looking at the totality of the applications situation including ongoing permanent residence applications. In Moghaddam, Madam Justice Heneghan found that the permanent residence application was not in front of the Officer and therefore was considered extraneous considerations.

Conclusion: Be Cautious Applying Dual Intent to Study Permit Applications

Ultimately, my review of the IRCC instructions and case law suggests that dual intention may not be the most effective argument when an applicant is not yet in the process or position of applying for permanent residency, as most international students would be. Emphasis should instead be placed on future compliance knowledge, individual knowledge of processes, and strong intentions and ability to effect a return at the end of the authorized stay. It is still my position that overemphasizing permanent residence does more harm than good and instead more creative ways to tie those ties to Canada (such as family, past immigration history, of courses) to a future career pathway or the possibility of employment in the country of origin should be explored. Those details should also be clearly stated, in a non-contradictory way.

While dual intention may have some back-end use in judicial review applications, it is also clear that these are usually secondary factors to underlying unreasonable assessments of evidence conducted by reviewing Officers. Proper caution should also be applied when reviewing case law to differentiate recent cases (which have or will have reference to a more robust instruction guide provided by IRCC) as opposed to those from a decade back where dual intention may have been a lesser understood concept. Still, dual intention (where there is not a permanent residence application pending) is a tricky word and evidence play that should ultimately be used very carefully by representatives and applicants alike.