Section 22(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 (‘IRPA’) states that “an intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.” This is commonly known as “dual intent”. However, recent experiences at Gerami Law PC have shown that visa officers are likely to refuse an application for temporary residence where the personal circumstances of the applicant allude to his or her intention of becoming a permanent resident in Canada.
The following examples are real-life situations that we have encountered in our immigration practice at Gerami Law PC:
1) A Canadian citizen marries a foreign national. The foreign national is an intelligent young woman who has distinguished herself as a remarkable and accomplished student. She intends to pursue a degree in Mechanical Engineering in a reputable Canadian university. The foreign national applies for a study permit to Canada. The visa officer denied her application on the basis that she did not demonstrate an intention to leave Canada at the end of her stay.
2) A naturalized Canadian citizen returns to his country of origin, establishes a business, and marries. The couple welcomes four children, who are all Canadian citizens through their paternal filiation. The family made plans to come to Canada to visit relatives. Being a foreign national, the spouse and mother to four Canadian children applies for a visitor visa. This application was denied on the basis that the visa officer was not satisfied that the mother intended to leave Canada at the end of her stay.
Common to these cases is the fact that the foreign nationals are all married to a Canadian citizen, and either had a pending spousal sponsorship application or indicated the intention of submitting a sponsorship application in the near future. Further, the visa officer did not have any evidence to demonstrate that the foreign nationals would not abide by the terms of their temporary residence status. Nevertheless, irrespective of the prescriptions of section 22(2) of the IRPA and the jurisprudence of the Federal Court, the visa officer denied their application for temporary residence.
The Jurisprudence of the Federal Court
The Federal Court has confirmed that a foreign national may lawfully possess a dual intent. Consequently, it does notfollow that a foreign national seeking permanent residence will violate the provisions of the IRPA and remain in Canada beyond the period authorized for his or her stay. This is made clear from the decision of the Federal Court in Rebmann v Canada (Minister of Citizenship and Immigration) where Justice Martineau concluded:
As long as there was an intention to leave Canada when his temporary status expired, even if the applicant had been contemplating obtaining permanent resident status, it was not a violation of the Act to enter Canada with dual intent.[1]
Similarly, in Odewole v Canada (Minister of Citizenship and Immigration)[2], Justice Lagacé ruled:
[14] Pursuant to subsection 22(2) of the Act, a person seeking a temporary entry into Canada may also hold the intention of establishing permanent residence. [15] The Officer was therefore required to weigh the evidence in connection with the application for a study permit and assess the applicant’s intention to leave Canada at the end of her studies under paragraph 20(1) (b) of the Act and subsection 216(1) of the Regulations. [16] The Officer was not dealing with the family application for permanent residence, and the issue of dual intent arose only in relation to that application. The application for permanent residence was an irrelevant consideration for the purposes of the applicant’s application for a Canadian study permit. [17] Although in her affidavit the Officer acknowledged that she lacked jurisdiction to assess the applicant’s eligibility for permanent residence under the family class sponsorship, she nevertheless took this factor into account, as evidenced by the above summary of the factors cited by the Officer. Thus, the Officer committed a reviewable error. Moghaddam v. Canada (Minister of Citizenship and Immigration), 39 Imm. L.R. (3d) 239, 2004 FC 680 (F.C.). [18] Such an approach is unacceptable in respect of the facts and law, and therefore the decision does not meet the test of reasonableness and will be set aside. [3]In Dang v Canada (Minister of Citizenship and Immigration),[4] the Federal Court was seized of an application for judicial review of an immigration officer’s decision to deny an application to renew a study permit on the basis that the applicant did not intend to leave Canada at the end of her authorized period.
In that case, the applicant was a citizen of Vietnam who came to Canada on a study permit. In Canada, she met a Canadian citizen whom she married less than two (2) years after her arrival. The applicant’s husband submitted a spousal sponsorship application, which was denied on the basis that the marriage was not genuine. The applicant then applied to have her study permit renewed, without success.
In allowing the judicial review, Justice Kelen asserted that it was unreasonable for the immigration officer to consider the applicant’s negative spousal sponsorship application and her intention to remain in Canada permanently in denying the study permit considering that section 22(2) of the IRPA does not preclude an applicant for having a dual intent. More specifically, Justice Kelen stated that the fact that the applicant has pursued a spousal sponsorship application “does not establish that she would not leave Canada at the end of the period authorized for her study”.[5] In fact, Justice Kelen determined:
Without an evidentiary basis on which to support the immigration officer’s findings, the immigration officer’s conclusion that the applicant would not leave Canada at the end of the period authorized for her stay was patently unreasonable.[6]
Justice Kelen’s ruling clearly suggests that a visa officer’s decision to deny an application for temporary residence must have an evidentiary basis. An officer cannot refuse an application for a temporary residence simply on the basis of speculation or conjecture.
Of significance is Justice Martineau’s decision, in Patel v Canada (Minister of Citizenship and Immigration)[7], where he allowed the judicial review of a visa officer’s refusal to restore the applicant’s visitor visa. In that decision, the Federal Court accepted that a 79-year old widow, with no living family in India, who had previously obtained three (3) extensions of her visitor visa maintained a dual intent and a bona fide intent to leave Canada upon the expiry of her temporary status.
The only requirement is the existence of a “temporary purpose” and in the present case, I find that the Officer did not address his mind to this question in relation to the prevailing personal circumstances of the Applicants (sic). That is a reversible error.[8]
As a further confirmation, in Ogunfowora v Canada (Minister of Citizenship and Immigration)[9], a visa officer had denied the applicant a temporary residence visa because he was not convinced that the applicant would return to Nigeria at the end of the authorized period of entry. The Federal Court determined that:
Legally, an officer is obligated to consider each application on its own merits. The officer was not entitled to use the fact that the applicants have an outstanding application for permanent residence to deny them their temporary resident visas and this is evident from the plain language of the legislation. Subsection 22(2) of IRPA explicitly precludes denying an application for temporary status on the basis that there is an outstanding permanent resident application if the decision maker believes the person will return. Thus, the legislation appears to demand that a decision-maker determine on the basis of objective evidence whether the person will return, irrespective of any outstanding permanent resident applications.[10]
Therefore, an officer must assess objectively the evidence in order to decide whether an applicant should be granted a temporary resident visa. That officer must not base his or her decision on subjective factors with complete disregard for any evidence that favours the granting of a temporary status to a deserving applicant.[11]
An assessment of the merits of an application for temporary residence means that considerations pertaining to a foreign national’s intention to become a permanent resident are irrelevant. The visa officer must limit his or her analysis to whether the applicant has demonstrated a bona fide intention to respect the requirements of their temporary resident status, which includes the intention to leave Canada at the end of the authorized period.
Intention to leave Canada by the end of the authorized stay
The visa officer examining an application for a temporary visa will turn his or her mind to the foreign national’s travel history; immigration status; family ties in the country of origin; length of proposed stay in Canada; purpose of the visit; employment prospects in the country of origin; personal assets; and financial status.
The Federal Court’s decision in Dang[12] must not be misconstrued as to mean that the visa officer must establish that the foreign national would not leave Canada at the expiry of the temporary residence status. Ultimately, the burden of proof lies with the applicant for a temporary residence status to prove the existence of a dual intent and to satisfy the visa officer that he or she would return to their country of origin.[13]
In support of an application for temporary residence, a foreign national may submit affidavits; letters from employers; letters of support from friends and relatives; proof of studies; financial statements; proof of assets in their country of origin or any other document that may dispel any conclusion that their only intent is to remain in Canada.
*Please note that the information contained in this blog does not constitute legal advice. Please consult an immigration lawyer at Gerami Law PC for specific information concerning your immigration matter.
[1] Rebmann v Canada (Minister of Citizenship and Immigration), [2005] 3 FRC 285 at para 19
[2] Odewole v Canada (Minister of Citizenship and Immigration), 2008 FC 697
[3] Ibid
[4] Dang v Canada (Minister of Citizenship and Immigration), 2007 FC 15
[5] Ibid at para 17
[6] Ibid at para 20.
[7] Patel v Canada (Minister of Citizenship and Immigration), 2006 FC 224
[8] Ibid
[9] Ogunfowora v Canada (Minister of Citizenship and Immigration), 2007 FC 471
[10] Ibid at para 46.
[11] Ibid at para 49.
[12] Dang, supra note 4 at para 17
[13] Wang v Canada (Minister of Citizenship and Immigration), 2009 FC 619 at paras 13-14.
