Nchelem v. Canada (Citizenship and Immigration), 2016 FC 1162 : PGWP Refusal Overturned Because Applicant Was Not Given a Fair Opportunity to Explain His Practicum

Ø  Introduction

The Federal Court reviewed the refusal of a Post-Graduation Work Permit (PGWP) application where the officer concluded that the applicant had worked in Canada without authorization during his nursing practicums.

The Court overturned the refusal because the applicant was not informed of the officer’s concern about his practicum courses and was instead asked to provide information that appeared to relate to a study permit rather than a PGWP.

Ø  Key Principle

Where an officer’s concern is based on an applicant’s practicum or course-related activities potentially constituting unauthorized work, procedural fairness requires that the applicant be informed of the concern and given a meaningful opportunity to respond.

A fairness letter that asks for documents but does not identify the actual concern underlying the potential refusal may be insufficient.

Ø  Background

The applicant came to Canada from Nigeria in 2010 as an international student. He completed a practical nursing program at NorQuest College and graduated in May 2015.

He subsequently applied for a PGWP. The officer became concerned that the applicant had worked without authorization because his nursing program included several practicums.

On October 8, 2015, CIC sent the applicant a letter requesting English-language test results, transcripts, and “a letter from the school he wished to attend showing that all the requirements of admission have been met.” However, the applicant had already graduated and was applying for a work permit, not a study permit.

The applicant provided his NorQuest transcript. On October 19, 2015, the officer refused the PGWP, finding that the practicums constituted unauthorized work and that the applicant had violated the conditions of his study permit.

Ø  Court Findings

The Federal Court found that the applicant had been treated procedurally unfairly.

The Court noted that the officer’s October 8 letter did not tell the applicant that the concern was specifically about whether his practicum courses constituted unauthorized work.

Instead, the letter requested information that was directed toward a study permit application, even though the applicant was applying for a PGWP after completing his program.

The Court explained that the applicant should have been given an opportunity to address the practicum issue. A subsequent letter from NorQuest, although not part of the original record, demonstrated the type of evidence the applicant could have provided if he had been properly informed of the concern.

Because the applicant was not given a meaningful opportunity to explain his practicum coursework before the officer made the adverse finding, the process was unfair.

Ø  Outcome

The Federal Court allowed the application for judicial review and set aside the PGWP refusal.

Case Citation:

Nchelem v. Canada (Citizenship and Immigration), 2016 FC 1162 CanLII