What Are Your Options if Your Application for a Post-graduation Open Work Permit Is Refused?

What Are Your Options if Your Application for a Post-graduation Open Work Permit Is Refused?

One of the most stressful situations for an international student in Canada is receiving notice that their post-graduation open work permit has been refused. Typically, this comes as a shock because the international student completed their studies with the anticipation that they had obliged with the prerequisite conditions for a post-graduation open work permit. The reality, however, is that many international students do not realize that certain decisions, like becoming a part-time student for a temporary period, can result in not qualifying for a post-graduation open work permit. 

The eligibility requirements for a post-graduation open work permit are provided online by Immigration, Refugees and Citizenship Canada (“IRCC”)

Applicants can receive only 1 post-graduation work permit in their lifetime.

To obtain a post-graduation work permit, the applicant must currently hold valid temporary status or have left Canada. They must have graduated from an eligible designated learning institution (DLI). They must also submit clear evidence that they meet all of the following criteria:

  • They have completed an academic, vocational or professional training program at an eligible institution in Canada that is at least 8 months in duration leading to a degree, diploma or certificate.
  • They have maintained full-time student status in Canada during each academic session of the program or programs of study they have completed and submitted as part of their post-graduation work permit application. Exceptions can be made only for the following:
    • leave from studies
    • final academic session
  • They have received a transcript and an official letter from the eligible DLI confirming that they have met the requirements to complete their program of study.

Note: The transcript and official letter must be included in a post-graduation work permit application.

Within 180 days of the date of applying for the post-graduation work permit, applicants must also meet one of the following criteria:

  • They hold a valid study permit.
  • They held a study permit.
  • They were authorized to study in Canada without the requirement to obtain a study permit under paragraphs 188(1)(a) and (b) of the Immigration and Refugee Protection Regulations.

Many students forget to get leave or permission from their school to take part-time or stop schooling for a semester all together. Importantly, all hope is not lost. Unfortunately, the rules around post-graduation open work permits is very strict. 

Applying for a Temporary Resident Permit (“TRP”) is an important remedy to a situation where an international student is denied a post-graduation open work permit. A temporary resident permit allows for those who are out of status in the country, which is typically the case when you receive notice that the post-graduation open work permit has been denied, an opportunity to stay in Canada with status and an open work permit. 

The issuance of a temporary resident permit is governed by subsection 24 (1) of the Act: 

Temporary resident permit

24 (1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.

Additionally, it is well understood that open work permit applications can be made alongside the request for a TRP, pursuant to R199(d) and R208(b), specifically: 

199 A foreign national may apply for a work permit after entering Canada if they 

(d) hold a temporary resident permit issued under subsection 24(1) of the Act that is valid for at least six months;   

Humanitarian reasons

208 A work permit may be issued under section 200 to a foreign national in Canada who cannot support themself without working, if the foreign national

(b) holds a temporary resident permit issued under subsection 24(1) of the Act that is valid for at least six months.

The purpose of the TRP is to provide some flexibility in cases where the strict application of the IRPA would lead to a person’s exclusion from Canada. As highlighted in Abdelrahma v. Canada (Citizenship and Immigration), 2018 FC 1085, Section 24 of the IRPA provides an officer with a broad discretionary power to be used in exceptional cases to allow such a person to enter into or to remain in Canada. 

Immigration, Refugees and Citizenship Canada has published guidelines on the eligibility of applicants and the assessment of TRP applications. While these may be useful, they do not have the force of law and are not binding.

As outlined recently in Williams v. Canada (Citizenship and Immigration), 2020 FC 8 at paragraph 37: 

[37] The instructions and guidelines explain that the officer will determine whether “the need for the foreign national to enter or remain in Canada is compelling” and whether “the need for the foreign national’s presence in Canada outweighs any risk to Canadians or Canadian society.” In evaluating “compelling reasons” versus “risks”, officers “must consider the factors that make the person’s presence in Canada necessary and the intent of the legislation to maintain program integrity and protect public health and safety.” The officer must be satisfied that “the reasons or benefits for an individual to enter or remain in Canada outweigh the risks.”

Mousa v. Canada (MCI), 2016 FC 1358 provides further clarity around the interpretation of the Operation Manual: 

[11] … The OP Manual states that to determine whether favourable consideration is warranted, officers must weigh the need and risk factors in each case and must consider factors which make the person’s presence in Canada necessary, such as family ties. It also sets out what that assessment may involve, which includes the essential purpose of the person’s presence in Canada, the type/class of application and pertinent family compositions, the tangible or intangible benefits which may accrue to the person and to others as well as other considerations.

Every case is unique and there is no one-size fits all methodology for these kinds of applications. Visa officers have a high level of discretion when evaluating these applications and if a TRP is granted, they can also be taken away at any time if an officer decides to do so. That being said, this route may be the most viable option for you in such a stressful time in your immigration journey in Canada.

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