On the 6th podcast episode, Dani Willetts joins Peter Edelmann and I to discuss the decision making process at Canada’s immigration department, her experience transitioning from a career working for CIC to being an immigration consultant, some recent cases impacting international graduates in particular with regards to the Post-Graduate Work Permit program, a recent Parliamentary report on the Temporary Foreign Worker Program, and the discovery that Canada has started negotiating an extradition treaty with China.
Dani Willetts is an immigration consultant at TDWImmigration. From 1989 – 2012 she worked in numerous capacities with Canada’s immigration department, including as a Supervisor in Vancouver.
First, using three recent cases as examples we discussed how Immigration, Refugees and Citizenship Canada officers view themselves. Do they see themselves as administering the Immigration and Refugee Protection Act or as administering Canadian immigration programs. Three recent cases from the Federal Court were used to guide our discussion.
The first was Zhang v. Canada (Citizenship and Immigration), 2016 FC 964, where the Federal Court determined that a visa officer was correct when it determined that a person had engaged in unauthorized study in Canada while in Canada as a visitor. Ms. Zhang had arrived in Canada on a visitor’s visa on August 23, 2014, which was valid until February 23, 2015. On January 16, 2015, she applied for, and was eventually granted an extension of that visa, until August 30, 2015. On January 5, 2015, she began a 14-week English as a Second Language [ESL] program. The Officer determined that the study was unauthorized because Ms. Zhang did not complete the studies within the initial period authorized by her stay. When Ms. Zhang argued that this was unfair because the IRCC said that she could study, Justice Bell said:
I cannot accept Ms. Zhang’s contention regarding the interpretation of paragraph 188(1)(c) of the Immigration and Refugee Protection Regulations (the “IRPR”). Indeed, the Officer’s conclusions cannot be based upon information found on websites. He or she is required to interpret the Act and the IRPR.
The second case was Zhang v. Canada (Citizenship and Immigration), 2016 FC 1057 . There, the Federal Court found that it was for immigration officers, and not post-secondary institutions, to determine what constituted full-time studies for the purpose of eligibility to the Post-Graduate Work Permit Program. Once again, this seemed to contradict information that was on the IRCC website, and once again the Federal Court found that it was reasonable.
The third case was Nookala v. Canada (Citizenship and Immigration), 2016 FC 1019. Once again, the Federal Court determined that it was reasonable for an officer to determine that it was not possible for an applicant to restore his status from student to post-graduate work permit holder, despite language on the IRCC website that indicated the contrary. When confronted with the inconsistency between the officer’s decision and the website, Madam Justice Mactavish noted that:
After these reasons had been completed, but before they were signed, the applicant provided the Court with a portion of a guideline published on a Departmental website. The operative position of the guideline states that “the phrase ‘initial requirements for their stay’ should not be read too literally when it is being applied in the context of a restoration application”. The guideline goes on to state that “the preferred interpretation in this context would be that the person seeking restoration must meet the requirements of the class under which they are currently applying to be restored as a temporary resident”.
According to Mr. Nookala, this means that an individual who has previously held a study permit can have their status “restored” to a work permit, including a Post‑Graduation Work Permit.
I do not need to decide in this case whether this interpretation suggested by the Departmental guideline is a reasonable one. The decision to refuse Mr. Nookala’s restoration request was one that accorded with the express language of section 182 of the Regulations. It was, therefore, well within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. In other words, it was reasonable.
Given these numerous decisions in which officers seemingly ignored the IRCC website I asked Dani whether IRCC officers view themselves as implementing Canadian immigration law or Canadian immigration programs? What does the Department do when officers deviate from the website? Her answers were fascinating.
Dani then provided a summary of her experience transitioning from a career at Canada’s immigration department to being an immigration consultant.
The topic then shifted to a discussion of three recommendations from the Huma Committee. These were (1) whether work permits should not be limited to specific employers, (2) whether there should be a trusted employer program within the Labour Market Impact Assessment program, and (3) whether specific industries should get preferential treatment in the Temporary Foreign Worker Program.
Finally, Peter provided an overview on Canadian extradition law.
All in all a great episode, if I may say so myself.