Nookala v. Canada (Citizenship and Immigration), 2016 FC 1019 : PGWP Refusal Upheld Because Applicant Applied After His Study Permit Expired

Ø  Introduction

The Federal Court reviewed the refusal of a Post-Graduation Work Permit (PGWP) application where the applicant applied after his study permit had expired and also sought restoration of status.

The Court upheld the refusal, finding that a valid study permit was an eligibility requirement under the PGWP Program and that the applicant could not restore his study permit status because he had already completed his studies.

Ø  Key Principle

A PGWP applicant must satisfy the program’s eligibility requirements, including holding a valid study permit when applying.

Although administrative guidelines generally cannot improperly fetter an officer’s discretion, the PGWP program document established eligibility requirements rather than merely discretionary guidelines.

Restoration under section 182 of the IRPR also requires the applicant to continue meeting the initial requirements for the status being restored.

Ø  Background

The applicant, an Indian citizen, completed a Master’s degree in Industrial Engineering at Concordia University in August 2015. His study permit was valid until August 31, 2015.

Instead of applying for a PGWP before his study permit expired, he took a vacation after completing his studies. He subsequently applied for a PGWP on September 12, 2015, together with an application to restore his status.

The officer refused the PGWP because the applicant did not hold a valid study permit when he applied and also refused his restoration request. The applicant argued that the officer had improperly treated the PGWP program guidelines as mandatory.

Ø  Court Findings

The Federal Court found that the officer acted reasonably.

The Court held that the PGWP program document established eligibility criteria, rather than merely providing optional guidelines that an officer could disregard. The requirement to hold a valid study permit was therefore properly applied.

The Court also considered section 182 of the IRPR. Although restoration may be available within 90 days after status expires, the applicant must continue to meet the initial requirements for the status being restored. Because the applicant had already completed his studies and was no longer enrolled in a qualifying program, he could not restore his study permit status.

The Court rejected the argument that his student status could be “momentarily” restored simply to allow him to qualify for a PGWP. There was no authority supporting such an approach.

The Court noted that the applicant could have sought restoration while he was still enrolled in a qualifying program, but once his studies were completed, he no longer met the requirements for restoration of study status.

Ø  Outcome

The Federal Court dismissed the application for judicial review and upheld the refusal of the PGWP and restoration application.

Case Citation:

Nookala v. Canada (Citizenship and Immigration), 2016 FC 1019 CanLII