Last Updated on September 7, 2016 by Steven Meurrens
Foreign nationals are required to obtain a study permit for engaging in academic, professional, vocational or other education or training that is more than six months in duration at a designated learning institution (“DLI“) in Canada.
So what does this mean, and who doesn’t need a study permit?
The Immigration and Refugee Protection Act (the “Act“) provides that every minor child in Canada, other than a child of a temporary resident not authorized to work or study, is authorized to study at the pre-school, primary or secondary level.
The Immigration and Refugee Protection Regulations (“IRPR“) further provide that a foreign national does not need a study permit to study in the following circumstances:
(a) if they are a family member or a member of the private staff of a foreign representative who is properly accredited by the Department of Foreign Affairs and International Trade and who is in Canada to carry out official duties as a diplomatic agent, consular officer, representative or official of a country other than Canada, of the United Nations or any of its agencies or of any international organization of which Canada is a member;
(b) as a member of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act, including a person who has been designated as a civilian component of those armed forces;
(c) if the duration of their course or program of studies is six months or less and will be completed within the period for their stay authorized upon entry into Canada; or
(d) if they are an Indian.
There is alot of confusion regarding whether people can complete short-term courses in Canada without a study permit. The Immigration, Refugees and Citizenship Canada website states that foreign nationals may enter Canada or remain in Canada without a study permit to attend a course or program of study of six months’ duration or less. This, however, does not provide the whole story. As noted above, IRPR also requires that the course or program of studies be completed within the period authorized to the foreign national upon entry to Canada.
In Zhang v. Canada (Citizenship and Immigration), 2016 FC 964, a Chinese national arrived in Canada on a visitor visa on August 23, 2014. The period authorized for her stay was six months, or February 23, 2015. In January 16, 2015, Ms. Zhang applied for and obtained an extension of her visa until August 30, 2015.
On January 5, 2015, Ms. Zhang began a 3 month ESL course.
In a subsequent application, IRCC determined that Ms. Zhang had studied without authorization, and the Federal Court agreed. Her lawyer argued that this was unfair, especially since the IRCC website stated:
You can study in Canada without a study permit if: the duration of your course of program of study is six months or less and you will complete your course or studies within the time you are allowed to stay in Canada. [My emphasis]
However, Justice Bell disagreed, and stated:
I cannot accept Ms. Zhang’s contention regarding the interpretation of paragraph 188(1)(c) of 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 words “upon entry into Canada” as found in paragraph 188(1)(c) are unambiguous. It is common ground that words in a statute are to be given their plain meaning unless the context requires otherwise: see, Ruth Sullivan, Statutory Interpretation, 2d ed (Toronto: Irwin Law, 2007) at 49-50. Upon entry into Canada Ms. Zhang was authorized to remain until February 23, 2015. I find it reasonable to conclude that that is the date by which she was required to complete any study, pursuant to paragraph 188(1)(c), for which she did not have a study permit. Even if I were to hold the view that the Officer was incorrect in his interpretation of the relevant provisions, he or she must be afforded deference when interpreting his or her home statute. Reasonableness, not correctness, is the standard of review to be applied.