Popova v. Canada (Citizenship and Immigration), 2018 FC 326 : Federal Court Reviews Study Permit Refusal After Officer Raised Unexpected Concerns About Applicant’s Past Studies

The Federal Court reviewed the refusal of Anastasia Popova’s study permit application after an officer concluded that she had not actively pursued studies during her previous time in Canada and was therefore not a bona fide temporary resident. Her immediately preceding study permit refusal had concerned only insufficient finances, which she addressed in her new application. The Court held that procedural fairness required an opportunity to respond because the new concern about her past study history was unexpected and ultimately determinative.

Key Principle

Even though the duty of procedural fairness in study permit applications is relatively limited, an officer may be required to give an applicant an opportunity to respond where a determinative concern could not reasonably have been anticipated. When an earlier refusal identified one specific deficiency and a later officer instead relies centrally on an entirely different concern involving past permits or compliance, fairness may require notice and an opportunity to address that new concern.

Background

Ms. Popova, a Russian citizen, received a study permit in 2012 and studied English at Seneca College before transferring to Centennial College for a three-year Advertising and Marketing Communications Management diploma.

After becoming pregnant and giving birth in August 2015, she stopped studying and proactively changed from student to visitor status. She later re-enrolled at Centennial and applied for another study permit. That application was refused in December 2016 solely because the officer found her available funds insufficient.

After losing her Centennial place, Ms. Popova obtained admission to a similar Humber College program and applied again in July 2017 with significant additional financial documentation. This time, the officer refused because of her immigration status, family ties, purpose of visit, and particularly an alleged failure to actively pursue studies while previously holding a study permit.

Court Findings

• Study History Concern Required an Opportunity to Respond

The Court found procedural fairness determinative. Ms. Popova had addressed the financial concern identified in the 2016 refusal and had no reason to anticipate that her study history would become fatal in 2017. Although officers need not provide applicants a running score of weaknesses, fairness can require notice where an unexpected concern involving past permits becomes determinative.

• Previous Refusal Made the New Concern Particularly Unforeseeable

The officer deciding the 2016 application had raised no concern about Ms. Popova’s study history. The Court relied on Gu and related jurisprudence recognizing that concerns about past permits or conduct may require an opportunity to respond where an applicant could not reasonably anticipate the officer’s opinion.

• Officer Also Appeared to Misunderstand the Study History

The Court noted that the officer incorrectly stated Ms. Popova had held a study permit for four years while attending Seneca. The evidence showed that she studied until giving birth and then proactively changed to visitor status. That conduct suggested an effort to maintain proper immigration status rather than non-compliance.

Outcome

The Federal Court granted judicial review, set aside the refusal, and remitted the application to a different visa officer for redetermination. The Court declined to certify the Minister’s proposed question concerning consideration of previous study history and awarded no costs.

Case Citation:

Popova v. Canada (Citizenship and Immigration), 2018 FC 326 (CanLII)