Foreign Students May Apply for Permanent Residence in Canada

by Sergio R. Karas, Karas and Associates, Canada

On November 28, 2008, the Minister of Citizenship and Immigration published the Ministerial Instructions that govern the filing of applications under the Federal Skilled Worker program. Those long awaited instructions were published as part of a partial overhaul of the Federal Skilled Worker Program and allow the following applications to be considered for Permanent Residence:

·         Applications submitted with an offer of Arranged Employment and applications submitted by foreign nationals residing legally in Canada for at least one year as Temporary Foreign Workers or International Students; 

·         Applications from skilled workers with evidence of experience, at least one year of continuous full-time or equivalent paid work experience in the last ten years under one or more of the National Occupation Classification (NOC) categories published by the Minister from time to time.

A key provision in the Ministerial Instructions that concern foreign students is their ability to submit applications for Permanent Residence in Canada as “foreign nationals residing legally in Canada for at least one year as Temporary Foreign Workers or International Students” as stated above. Many foreign students are availing themselves of that option, given that they have come to Canada with the necessary prior degrees and experience attained in their home country. Those students can file their applications because they already have enough points accumulated for immigration purposes to pass the 67 point mark, including completion of the appropriate language testing, degrees, and verifiable experience in a foreign country.

However, many students do not understand the Ministerial Instructions and rush to file their applications for Permanent Residency based on the advice, often erroneous, given by well-intentioned friends or by unscrupulous individuals. Such was the case in the recent federal court decision in Jin v. Canada (Minister of Citizenship and Immigration) ([2009] F.C.J. No. 1552) where the applicant sought to have the court interpret the words “applications submitted […] by foreign nationals residing legally in Canada for at least one year […] as International Students” set out in the Ministerial Instructions. The applicant argued that the instructions included international students who at any time in the past resided legally in Canada for at least one year. The court rejected her contention, holding that such interpretation would expand the category beyond the scope intended by the Ministerial Instructions.

In that case, the applicant was studying at a college in Toronto from September 2004 to August 2006. She then took a leave from her studies and resided in China until her return to Canada to study in May 2008. She pursued her studies in Canada continuously since that date, and held a valid Study Permit until August 30, 2012. In September 2008, she applied for Permanent Residence under the Federal Skilled Worker class deeming herself eligible as an International Student who has resided in Canada for at least one year. However, after the release of the Ministerial Instructions, the visa post notified the applicant that her application for permanent residence could not be processed, as she had not completed one year of legal residence in Canada with her current Study Permit.

The court held that the terms of the Ministerial Instructions are clear in the residency requirements and that the words “applications submitted by foreign nationals residing legally in Canada for at least one year as Temporary Foreign Workers or International Students” leave no room to ambiguity. The said instructions make it abundantly clear that the Temporary Foreign Worker, or the International Student, must have been residing legally in Canada for at least one year immediately prior to his or her application. The court added that, while the refusal letter issued by the visa post was convoluted and somewhat unclear and the litigation could have been avoided if clear reasons would have been provided, the lack of clarity was insufficient for the applicant to succeed in her application for judicial review. The court further held that the solution to the applicant’s problem was to simply submit another application which, in light of her continuing studies in Canada for well over a year since May of 2008, could be processed in accordance with the Ministerial Instructions. In addition, while the applicant argued that this could delay her application for Permanent Residence, the court rejected her argument and relied on the Minister representative’s representations that the application would be processed in due course.