Ø Introduction
The Federal Court reviewed the refusal of an application for
restoration of temporary resident status and a Post-Graduation Work Permit
(PGWP).
The Court upheld the refusal because the applicant allowed
his study permit to expire before receiving his final academic documents and
then applied for restoration and a PGWP without holding a valid study permit.
Ø Key Principle
For a PGWP application accompanied by restoration, the
applicant must satisfy the applicable PGWP eligibility requirements,
including the requirement to have a valid study permit when applying.
The fact that an applicant is within the 90-day restoration
period does not, by itself, overcome the requirement to meet the applicable
PGWP criteria.
Ø Background
The applicant was an Indian national studying for a Master
of Mechanical Engineering at Concordia University. His study permit and
temporary resident status expired on August 30, 2015.
He completed his final examinations on August 18 but
expected to receive his grades and completion documents within seven days. When
those documents did not arrive before his study permit expired, he did not
apply to extend his study permit.
He received confirmation of program completion on September
2 and applied the following day for restoration of status and a PGWP.
The officer refused both applications because the applicant
did not have a valid study permit when he applied for the PGWP.
Ø Court Findings
The Federal Court found that the officer’s decision was
reasonable.
The Court rejected the argument that the PGWP program
instructions were merely optional guidelines that could not be applied to the
applicant. Following Nookala, the Court held that the PGWP instructions
establish mandatory eligibility criteria, including the requirement for
a valid study permit when applying.
The Court found no conflict between the PGWP requirements
and section 182 of the IRPR. Restoration may be available after a loss of
status, but the applicant must still meet the applicable requirements for the
status being restored.
Because the applicant had allowed his study permit to expire
before applying for the PGWP, he did not meet the PGWP requirement of holding a
valid study permit when applying. Consequently, he also failed to meet the
requirements for restoration under sections 182 and 179.
The Court therefore found that the officer reasonably
applied the applicable requirements and was entitled to refuse both restoration
and the PGWP.
Ø Outcome
The Federal Court dismissed the application for judicial
review and upheld the refusal of the restoration and PGWP applications.
Case Citation:
Abubacker v. Canada (Citizenship and Immigration), 2016 FC 1112 CanLII
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
