Chow v. Canada (Minister of Citizenship and
Immigration)
Between
Yin Ji Rachael Chow, Applicant, and
The Minister of Citizenship and Immigration, Respondent
And between
Yin Hong Clara Chow, Applicant, and
The Minister of Citizenship and Immigration, Respondent
And between
Yin Gwan Elisia Chow, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Yin Ji Rachael Chow, Applicant, and
The Minister of Citizenship and Immigration, Respondent
And between
Yin Hong Clara Chow, Applicant, and
The Minister of Citizenship and Immigration, Respondent
And between
Yin Gwan Elisia Chow, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 893
2015 FC 861
Dockets: IMM-7450-14, IMM-7452-14, IMM-7453-14
Federal Court
Toronto, Ontario
Southcott J.
Heard: June 25, 2015.
Judgment: July 22, 2015.
Dockets: IMM-7450-14, IMM-7452-14, IMM-7453-14
Federal Court
Toronto, Ontario
Southcott J.
Heard: June 25, 2015.
Judgment: July 22, 2015.
(37 paras.)
JUDGMENT AND REASONS
1 SOUTHCOTT
J.:-- This Judgment and Reasons relate to three applications for judicial
review of three identical decisions made by an Immigration Officer refusing the
applicants' applications for study permits. At the hearing of these matters,
counsel for the parties agreed that it is appropriate for the Court to issue
one decision in relation to the three applications.
2 For
the reasons set out below, the applications for judicial review are dismissed.
I. Background
3 The
applicants are three sisters, all of whom are minors and nationals of New
Zealand. Their mother is a Korean national and their father is a New Zealand
national. Their parents were in Canada on Visitor Records when they filed
applications for study permits for their daughters for the 2014-2015 school
year.
4 The
applicants first applied for study permits on July 7, 2014. Their applications
were refused by letters dated August 6, 2014. They then submitted new
applications on September 2, 2014, which were refused on October 24, 2014.
Those are the decisions at issue in these proceedings.
5 The
Officer's decisions stated that the applicants were not persons described in
immigration legislation who could apply for a study permit from within Canada.
Rather, an application of this type must be made at a Canadian Visa office in
another country.
6 The
Global Case Management System (GCMS) notes indicate that the officer decided
that, as their parents were on Visitor Records, the applicants were not
eligible to study in Canada under ss. 30(2) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). As
such, the applicants did not fall under the new ss. 215(1)(f)(i) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR) as they were not studying at the preschool,
primary or secondary level. The applicants must therefore apply for study
permits from outside Canada.
7 The
applicants argue that this was an unreasonable interpretation of the relevant
provisions in the IRPA and the IRPR.
II. Issue
8 The
parties agree that the applicable standard of review is reasonableness, given
that the issue is a question of statutory interpretation and a question of
mixed fact and law, involving the Officer's interpretation of his or her
enabling statute and regulations connected with it (Dunsmuir
v New Brunswick, 2008 SCC 9, at para 124 [Dunsmuir]; Alberta
(Information and Privacy Commissioner) v Alberta Teachers Association, 2011 SCC 61, at para 30; McLean v British
Columbia (Securities Commission), 2013 SCC 67, at para
21).
9 Therefore,
the sole issue in these matters is whether the Officer adopted an unreasonable
interpretation of ss. 215(1)(f)(i) of the IRPR and ss. 30(2) of the IRPA.
III. Statutory and
Regulatory Provisions
10 The
principal statutory and regulatory provisions relied on by the parties in
argument are as follows:
·
Immigration and Refugee
Protection Act, SC 2001, c 27.
·
Work and study in Canada
(1) A foreign national
may not work or study in Canada unless authorized to do so under this
Act.
·
Minor children
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.
* * *
·
Études et emploi
(1) L'étranger ne peut
exercer un emploi au Canada ou y étudier que sous le régime de la présente
loi.
·
Enfant mineur
L'enfant mineur qui se
trouve au Canada est autorisé à y étudier au niveau préscolaire, au primaire ou
au secondaire, à l'exception de celui du résident temporaire non autorisé à y
exercer un emploi ou à y étudier.
·
Immigration and Refugee
Protection Regulations, SOR/2002-227.
·
No permit required
A foreign national may
work in Canada without a work permit
...
if they are the holder
of a study permit and
they are a full-time
student enrolled at a designated learning institution as defined in section
211.1,
the program in which
they are enrolled is a post-secondary academic, vocational or professional
training program, or a vocational training program at the secondary level
offered in Quebec, in each case, of a duration of six months or more that leads
to a degree, diploma or certificate, and
although they are
permitted to engage in full-time work during a regularly scheduled break
between academic sessions, they work no more than 20 hours per week during a
regular academic session; or
if they are or were the
holder of a study permit who has completed their program of study and
they met the
requirements set out in paragraph (v), and
they applied for a
work permit before the expiry of that study permit and a decision has not
yet been made in respect of their application.
·
No permit required
(1) A foreign national
may study in Canada without a study permit
...
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;
...
·
Application before entry
Subject to sections 214
and 215, in order to study in Canada, a foreign national shall apply for a
study permit before entering Canada
·
Application on entry
A foreign national may
apply for a study permit when entering Canada if they are
a national or a
permanent resident of the United States;
a person who has been
lawfully admitted to the United States for permanent residence;
a resident of
Greenland; or
a resident of St.
Pierre and Miquelon.
·
Application after entry
(1) A foreign national
may apply for a study permit after entering Canada if they
hold a study
permit;
apply within the period
beginning 90 days before the expiry of their authorization to engage in studies
in Canada under subsection 30(2) of the Act, or paragraph 188(1)(a) of these
Regulations, and ending 90 days after that expiry;
hold a work permit;
are subject to an
unenforceable removal order;
hold a temporary
resident permit issued under subsection 24(1) of the Act that is valid for at
least six months;
are a temporary
resident who
is studying at the
preschool, primary or secondary level,
is a visiting or
exchange student who is studying at a designated learning institution, or
has completed a course
or program of study that is a prerequisite to their enrolling at a designated
learning institution; or
are in a situation
described in section 207.
* * *
·
Permis non exigé
L'étranger peut
travailler au Canada sans permis de travail
...
s'il est titulaire d'un
permis d'études et si, à la fois :
il est un étudiant à
temps plein inscrit dans un établissement d'enseignement désigné au sens de
l'article 211.1,
il est inscrit à un
programme postsecondaire de formation générale, théorique ou professionnelle ou
à un programme de formation professionnelle de niveau secondaire offert dans la
province de Québec, chacun d'une durée d'au moins six mois, menant à un diplôme
ou à un certificat,
il travaille au plus
vingt heures par semaine au cours d'un semestre régulier de cours, bien qu'il
puisse travailler à temps plein pendant les congés scolaires prévus au
calendrier;
s'il est ou a été
titulaire d'un permis d'études, a terminé son programme d'études et si, à la
fois :
il a satisfait aux
exigences énoncées à l'alinéa v),
il a présenté une
demande de permis de travail avant l'expiration de ce permis d'études et une
décision à l'égard de cette demande n'a pas encore été rendue.
·
Permis non exigé
(1) L'étranger peut
étudier au Canada sans permis d'études dans les cas suivants :
...
il suit un cours ou un
programme d'études d'une durée maximale de six mois qu'il terminera à
l'intérieur de la période de séjour autorisée lors de son entrée au
Canada;
...
·
Demande avant l'entrée au
Canada
Sous réserve des
articles 214 et 215, l'étranger qui cherche à étudier au Canada doit,
préalablement à son entrée au Canada, faire une demande de permis
d'études.
·
Demande au moment de
l'entrée
L'étranger peut faire
une demande de permis d'études au moment de son entrée au Canada dans les cas
suivants :
il est un national ou
résident permanent des États-Unis;
il a été légalement
admis aux États-Unis à titre de résident permanent;
il est résident du
Groenland;
il est résident de
Saint-Pierre-et-Miquelon
·
Demande après l'entrée au
Canada
(1) L'étranger peut
faire une demande de permis d'études après son entrée au Canada dans les cas
suivants :
il est titulaire d'un
permis d'études;
il a été autorisé à
étudier au Canada en vertu du paragraphe 30(2) de la Loi ou de l'alinéa 188(1)a)
du présent règlement et la demande est faite dans la période commençant
quatre-vingt-dix jours avant la date d'expiration de l'autorisation et se
terminant quatre-vingt-dix jours après cette date;
il est titulaire d'un
permis de travail;
il fait l'objet d'une
mesure de renvoi qui ne peut être exécutée;
il est titulaire, aux
termes du paragraphe 24(1) de la Loi, d'un permis de séjour temporaire qui est
valide pour au moins six mois;
il est un résident
temporaire qui, selon le cas :
poursuit des études au
niveau préscolaire, primaire ou secondaire,
est un étudiant en
visite ou participe à un programme d'échange dans un établissement
d'enseignement désigné,
a terminé un cours ou
un programme d'études exigé pour s'inscrire à un établissement d'enseignement
désigné;
il se trouve dans l'une
des situations visées à l'article 207.
IV. Argument
Applicants' Submissions
11 The
applicants note that, under ss. 30(1) of the IRPA, no foreign national is
eligible to study in Canada "unless authorized to do so under the
Act", which is why the applicants applied for study permits. Ss. 30(2)
creates an exception for children at the pre-school, primary or secondary level
who do not require a study permit. However, this exception does not apply to
minor children of temporary residents who are not themselves authorized to work
or study. The applicants submit that this means that such children must apply
for study permits in order to study in Canada, which is what the applicants
did.
12 The
applicants then turn to their argument that the Officer erred in the
interpretation of ss. 215(1)(f)(i) of the IRPR. The Officer has interpreted
this provision to mean that the applicants would have to have been actively
studying at a school to apply for a study permit pursuant to this provision,
which allows for application after entering Canada. Otherwise, s. 213 of the
IRPR provides that application must be made before entering Canada.
13 The
applicants submit that this is an untenable interpretation of ss. 215(1)(f)(i).
They note that, when interpreting a statute, "the words of an Act are to
be read in their entire context and in there grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the intention
of Parliament" (Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at para 21). Additionally, an "enactment is
deemed remedial, and shall be given such fair, large and liberal construction
and interpretation as best ensures the attainment of its objects" (Interpretation Act, RSC, 1985, c I-21, s
12). The applicants submit that the newly enacted ss. 215(1)(f)(i) of the IRPR
must benefit from a liberal interpretation, because it is meant to act as an
exception to the general rule that foreign nationals must apply for a study
permit before entering Canada.
14 The
interpretation favoured by the applicants is that the words "is studying
at the preschool, primary or secondary level" in ss. 215(1)(f)(i) refer to
the level at which the child will be studying, not to a requirement that the
child be currently actively studying. In oral submissions, the applicants'
counsel also argued that the fact the applicants were enrolled in school,
albeit not yet entitled to enter the classroom, was sufficient to consider them
to be studying for purposes of ss. 215(1)(f)(i).
15 The
applicants argue that this provision cannot logically be taken to require that
the child already be attending school in Canada when applying for the study
permit. They contend this would happen in only three scenarios: the child
already has a study permit obtained outside of Canada, the child is the minor
child of a temporary resident who is authorized to work or study in Canada, or
the child is illegally attending school without a permit. None of these
scenarios apply to the applicants or to other minor children in circumstances
similar to the applicants. The applicants argue that the Officer's
interpretation therefore renders this provision meaningless and defeats the
objective of the enactment.
16 The
applicants refer to such objective being to allow minor children such as the
applicants, who are already in Canada but do not fall under the exemption in
ss. 30(2) of the IRPA, to apply for a study permit from within the country. In
support of their contention as to the objective of the new ss. 215(1)(f)(i),
the applicants refer to a Notice dated February 12, 2014 issued by the
Government of Canada following publication of the relevant regulatory
amendments in the Canada Gazette (SOR/2014-14 January 29, 2014, Regulations Amending the Immigration and Refugee Protection
Regulations), which referred to the amendments as
aiming to strengthen Canada's status as a study destination of choice for
prospective international students.
17 The
applicants also refer to the Regulatory Impact Analysis Statement (RIAS) that
accompanied the amendments as noting that strong support had been expressed for
increasing the pool of those foreign nationals eligible to apply for a study
permit from within Canada.
Respondent's
Submissions
18 The
respondent argues that the Officer reasonably found that the applicants did not
meet the criteria of ss. 215(1)(f)(i) of the IRPR given that they were not
studying at the preschool, primary or secondary level at the time of the
application. The subsection states that the application for the study permit
can be made from within Canada if the person is studying at the preschool, primary or secondary level. A plain and
ordinary reading of the provision leads to the same conclusion as the Officer.
19 The
respondent also relies on the RIAS to support the proposition that the new
provision was not intended to apply to persons such as the applicants, but
rather to allow students already properly studying in Canada without a study
permit to apply for a permit from within Canada. In reliance on the RIAS, the
respondent notes that ss. 215(1)(f) would apply to students studying pursuant
to ss. 30(2) who need to apply for a study permit once they reach the age of
majority, students studying in Canada for less than six months (as permitted
without a permit pursuant to ss. 188(1)(c) of the IRPR) who want to continue
their studies in Canada, or students who do not need a study permit but who
still desire one as tangible proof of authorization to study or to derive
certain benefits under the IRPA or the IRPR (such as the right to work under
ss. 186(v) or (w) of the IRPR without a work permit).
20 Therefore,
the fact that the applicants, or others in the applicants' circumstances, do
not qualify for the exemption under ss. 215(1)(f)(i) does not render the
Officer's interpretation unreasonable.
V. Analysis
21 Pursuant
to ss. 30(1) of the IRPA, the default position is that a foreign national
requires authorization to study in Canada. Ss. 30(2) provides an exception
allowing for children to study at the pre-school, primary or secondary level,
except for children of temporary residents who are not authorized to work or
study in Canada. In this case, the parties agree that the applicants are
children of temporary residents not authorized to work or study in Canada,
given that their parents are in Canada on Visitor Records. Therefore, the
exception in ss. 30(2) does not apply to the applicants.
22 Where
a study permit is required by a foreign national, the default position under s.
213 of the IRPR is that the application for the permit must be made before
entering Canada. Ss. 214 and 215 of the IRPR create exceptions to this
requirement and allow, in certain circumstances, for application to be made
when entering Canada or after entering Canada.
23 Where
the parties diverge is whether the new ss. 215(1)(f)(i) of the IRPR, which came
into force on June 1, 2014, applies to the applicants and whether the Officer
should have granted them study permits pursuant to this regulation. The Court
finds, for the reasons that follow, that it was reasonable for the Officer to
come to the conclusion that ss. 215(1)(f)(i) did not apply to the applicants,
and that they therefore had to apply for the study permits from outside Canada.
24 Based
on a grammatical and ordinary meaning (Bell Express Vu
v Rex, [2002] 2 SCR 559 at para 26) of ss.
215(1)(f)(i), which reads "is studying at the preschool, primary or
secondary level", it was reasonable for the Officer to interpret this
subsection as applying only to a temporary resident who is currently studying
at the preschool, primary or secondary level. There is nothing in this
provision or in the rest of the IRPA or IRPR that would make this
interpretation unreasonable. While this interpretation is narrower than the
interpretation the applicants would prefer, it is harmonious with the scheme of
the IRPA and the other provisions of the IRPA and the IRPR that limit the right
of foreign nationals, who want to study in Canada on a temporary basis, to
apply from within Canada.
25 As
detailed above, the respondent has cited examples of circumstances where
foreign nationals who are lawfully studying in Canada would benefit from this provision
by being entitled to apply for a study permit to continue their studies without having to leave Canada.
As such, the new ss. 215(1)(f)(i) is not rendered meaningless by the Officer's
interpretation as the applicants contend.
26 Both
parties also referred the Court to the applicable RIAS as an interpretive aid.
As noted by the Federal Court of Appeal in Astral Media
Radio Inc v Society of Composers, Authors & Music Publishers of Canada, 2010 FCA 16, at para 23:
·
Although not a part of the
Regulations, the Regulatory Impact Analysis Statement issued by the Board to
accompany the Regulations may be taken into account by the Court in
interpreting them.
27 The
portion of the RIAS that relates to the question in the case at hand reads as
follows:
·
Regulatory amendments to
in-Canada study permit applications
·
Certain foreign nationals who
wish to apply for a study permit to attend a designated institution after they
have entered Canada as a temporary resident, including those studying at the
pre-school, primary or secondary level, exchange or visiting students, or those
who have completed a course or program of study that is a condition for
acceptance at a designated institution, are authorized under the new
Regulations to apply for a study permit from within Canada instead of being
required to leave the country to apply from abroad. This
change facilitates the transition from visitor to study permit holder for minor
students once they reach the age of majority, exchange
or visiting students at a designated institution who wish to transfer to that
institution permanently to complete their studies, and those students who wish
to transition from a short term preparatory to a longer-term college or
university program. (emphasis added)
28 The
language of the RIAS highlighted above, which appears to relate to ss. 215(1)(f)(i),
supports the respondent's argument that this subsection applies to students
studying pursuant to subsection 30(2) who need to apply for a study permit once
they reach the age of majority. It does not support the applicants' argument
that this subsection applies to foreign nationals in the circumstances of the
applicants who wish to study, or have enrolled to study, at a pre-school,
primary or secondary level.
29 The
applicants submit that the Officer's interpretation of the provision is unreasonable
because it does not apply to the applicants or other minor children in
circumstances similar to the applicants. With respect, the applicants' argument
is flawed because it relies on a premise that the objective of the enactment is
to allow all minor children such as the applicants, who are already in Canada
but do not fall under the exemption in ss. 30(2) of the IRPA, to apply for a
study permit from within the country. However, the applicants have provided no
compelling support for this premise.
30 The
applicants disagree with the Officer's interpretation of the statute, but this
is not a basis to overturn the decision. The interpretation of the Officer
still renders subsection 215(1)(f)(i) of the IRPR remedial, albeit in a narrower
way than the interpretation suggested by the applicants. This does not mean
that the Officer's interpretation falls outside the "range of possible,
acceptable outcomes which are defensible in respect of the facts and law"
(Dunsmuir, at para 47).
VI. Conclusion
31 Given
the reasons above, and the Court's resulting conclusion that the Officer's
interpretation of the relevant provisions is reasonable, the applications for
judicial review are dismissed.
VII. Certified Question
32 The
applicants requested that the following question be certified for appeal to the
Federal Court of Appeal as a serious question of general importance:
·
Whether the provision in
section 215(1)(f)(i) of the Immigration and Refugee
Protection Regulations, which states:
(1) A foreign national
may apply for a study permit after entering Canada if they ... (f) are a
temporary resident who (i) is
studying at the preschool, primary or secondary level (emphasis added)
·
should be restricted to those
students who are actually/ physically studying at a preschool, primary or
secondary institution in Canada (as per a literal, restrictive interpretation
of the words "is studying") or whether the section is to be
interpreted to define the exemption to cover the study "level" of the
individuals who are granted an exemption by virtue of this section from the
requirement to apply for a study permit from outside Canada because they study
at "the preschool, primary or secondary level".
33 Pursuant
to ss. 74(d) of the IRPA, only a "serious question of general
importance" can be certified. As submitted by the applicants in reliance
on Zhang v Canada (Citizenship and Immigration), 2013 FCA 168 at paragragh 9, to be certified a question must (i)
be dispositive of the appeal and (ii) transcend the interests of the immediate
parties to the litigation, as well as contemplate issues of broad significance
or general importance.
34 The
applicants submit that this test is met because (i) the applications would be
allowed if the interpretation of ss. 215(1)(f)(i) for which the applicants
contend were to be adopted; and (ii) such interpretation will affect
applications for study permits beyond those of the three applicants.
35 The
respondent opposes the request for certification on the basis that the question
is not one of general importance but rather is a question of construction,
confined to just one component of the regulatory amendments made by
SOR/2014-14, which can be addressed by well-established principles of statutory
interpretation.
36 While
I agree with the applicants that their proposed interpretation of ss.
215(1)(f)(i) of the IRPR would be dispositive of an appeal, I agree with the
respondent's position that the proposed question is not a serious question of
general importance. In so concluding, I note Justice Strayer's description, in Gittens v Minister of Public Safety and Emergency Preparedness, 2008 FC 526 at para 6, of serious questions being those that raise
matters of significant doubt. I am not convinced that the question proposed by
the applicants raises such a matter.
37 Rather,
I find this matter to be similar to that considered by Justice Mainville in Jin v Canada (Minister of Citizenship and Immigration), 2009 FC 1234, which turned on the interpretation of a ministerial
instruction that was given legislative effect pursuant to the IRPA and
published in the Canada Gazette. The Court observed at para 24 that ss. 74(d)
of the IRPA is not to be invoked lightly (Varela v
Canada (Minister of Citizenship and Immigration), 2009
FCA 145 at para 23) and concluded that the interpretation of the ministerial
instruction on the narrow facts of that case was not of general importance.
JUDGMENT
THIS COURT'S JUDGMENT is that the applications for judicial review are dismissed. No question is
certified for appeal.
SOUTHCOTT J.
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