The Federal Court reviewed the refusal of a Federal Skilled
Worker application submitted by an Indian citizen pursuing a PhD at McGill
University in Montreal.
The officer concluded that she had not demonstrated an
intention to reside outside Quebec, despite her stated plan to settle in
Brampton, Ontario, after completing her studies.
The Court overturned the refusal because the officer applied
an improper test and unreasonably assessed the evidence supporting her
intention to move to Ontario.
Key Principle
The requirement to intend to reside outside Quebec concerns where
an applicant plans to settle, rather than simply where they currently live.
Present residence may provide evidence of intention, but it
cannot determine the issue by itself. Temporarily studying in Quebec can be
consistent with a genuine plan to settle elsewhere.
An assessment of intention must consider the available
evidence, including family ties, language abilities, employment prospects, and
the reasons for temporary residence in a particular province.
Background
Ms. Dhaliwal entered Canada on a study permit in December
2013 and lived with her husband in Montreal while pursuing doctoral studies in
electrical engineering.
She applied under the Federal Skilled Worker program in
August 2014, identifying Brampton as her intended destination.
Her parents, brother, and older sister lived in Brampton.
Her parents were permanent residents, and her sister was a Canadian citizen.
After an initial positive eligibility determination, she
received a fairness letter questioning whether she intended to live outside
Quebec while completing her PhD.
She responded with statutory declarations from herself and
her family explaining her plans to move to Ontario after graduation.
She also explained that McGill offered English instruction
and financial support, while her lack of French and the couple’s career
prospects favoured settling in Ontario.
The officer nevertheless refused the application, relying on
her continued studies, work, residence in Quebec, and request to extend her
study permit.
Court Findings
The Federal Court found that the officer incorrectly
interpreted the requirement to intend to reside outside Quebec.
The officer required Ms. Dhaliwal to show that she had taken
the “necessary steps” to live in another province. However, the applicable
framework did not impose that additional requirement.
The Court also rejected the assumption that she needed to
move outside Quebec immediately upon receiving permanent residence.
Her plan to complete her studies in Montreal did not, by
itself, defeat her stated intention to settle in Ontario.
The Court separately found the assessment of the evidence
unreasonable.
Ms. Dhaliwal had provided a detailed and credible
explanation supported by her family’s declarations. Her relatives confirmed
their residence in Brampton and willingness to provide initial settlement
assistance.
Although statements from an applicant and family members may
warrant caution, objective circumstances supported the stated intention in
this case.
These included her close family’s location, her lack of
French, and the employment prospects of both her and her husband.
The Court emphasized that students may choose a university
because of its academic strengths or financial assistance without intending to
settle permanently in that province.
Her intention to study temporarily in Quebec and later live
permanently in Ontario was therefore consistent.
Nothing in the record suggested that she intended to remain
in Quebec beyond her studies. The officer’s contrary conclusion could not
reasonably be sustained.
Outcome
The Federal Court allowed the application for judicial
review and returned the matter for redetermination by a different officer.
No question was certified, and no costs were awarded.
Case Citation:
Dhaliwal v. Canada (Citizenship and Immigration), 2016 FC 131 CanLII
Written by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
