Last updated on January 2nd, 2020
In December 2018 I wrote an article for The Canadian Immigrant about a Supreme Court of Canada case that had just been heard which could have a significant impact on Canadian immigration law. The case, Minister of Citizenship and Immigration v. Alexander Vavilov, was about whether a child who was born in Canada to Russian spies is a Canadian citizen. The Supreme Court of Canada before hearing the case announced that it was considering changing the law on how a legal principle called the “standard of review” works in Canadian administrative law.
On December 19, 2019 the Supreme Court of Canada released its decision. The Supreme Court created a revised framework for the standard of review in judicial review applications. Vavilov has significant implications for how Canada’s Federal Court will review the decisions of immigration officials.
Understanding The Standard of Review
As I wrote in December, the standard of review pertains to how courts review administrative tribunal decisions. In the immigration context, administrative tribunals include visa officers, border officials and Immigration and Refugee Board of Canada members. The Federal Court has the jurisdiction to review all decisions of these tribunals, including visa refusals, stays of removal, deportation orders, etc.
The concept of the standard of review is perhaps best illustrated by using the analogy of a parent asking her child to pick the clothes that she will wear to school that day. A parent who is showing her child a lot of deference will let her child wear whatever she wants to wear to school, as long as what the child picks is reasonable. If the child tries to wear pants over her head, for example, the parent would say that the child’s choice is unreasonable and prohibit the outfit.Read more ›
In 2020, over 400,000 international students at the post-secondary level in Canada will return to school. Many will want to stay and work in Canada after graduating. All will be subject to mandatory conditions of their stay as a student in Canada. It is important for all international students, and especially those who wish to one day work in or immigrate to Canada, to understand these conditions, as the consequence of failing to comply with one of the them is removal from Canada and a one year bar from returning.
The Law on Study Permit Compliance
Regulation 220.1(1) of Canada’s Immigration and Refugee Protection Regulations provides that the holder of a study permit in Canada must enroll at a post-secondary institution that accepts international students, also known as a designated learning institution, and remain enrolled at the designated learning institution until they complete their studies. As well, students must actively pursue their course or program of study.
Canadian immigration authorities typically interpret this legislative requirement as being that students must be enrolled full-time or part-time during each academic semester (excluding regularly scheduled breaks), that they must make progress towards completing their program’s courses and that they cannot take authorized leaves longer than 150 days from their program.
The Immigration, Refugees and Citizenship Canada website state that a leave will count as authorized if a school has authorized a leave from study due to medical reasons, pregnancy, a family emergency, death or serious illness of a family member, or any other type of leave that a school authorizes. A leave will also be authorized if a school has closed permanently, if a school is on strike, if someone has changed schools or if the student or their school has deferred their program start date if the student starts studying during the next semester and gets and updated letter of acceptance.Read more ›