Do FSW-PhD from Quebec really need proof of "intend to reside outside Quebec" ?

[xijunw]

Hey, there,

It is known that Federal FSW-PhD stream applicants from Quebec University are required to provide proof of "definite arrangement" for their "intent tof reside outside Quebec". "Definite arrangement" includes job offer, real estate, relatives, which most PhD students do not have. Many got rejected include me.

However, this so called "definite arrangement" have never been required for applicants from other countries and regions. So why applicants from Quebec are treated specially, and what's their legal basis? After carefully examined their reason of rejection, I found their basis could not stand strictly: the rejection is based on one sentence in the "Immigration and Refugee Protection Regulations", subsection 75(1), "... the federal skilled worker class is hereby prescribed as a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada and who intend to reside in a province other than the Province of Quebec." However, there are no further terms bound to the last definition "who intend to reside in a province other than the Province of Quebec."!!!

What does this mean? It means "definite arrangement" are not required by this regulation. When the act was made, they do not think you need to prove your intention as long as you assign a province other than Quebec in your application. It means the "intent" is some thought you do not have to prove. It means all rejection based on "intent to reside" are not legally stand since you actually do not violate any terms. Then, how did the VO rationalize their rejection if they don't have a corresponding term to cite? That's where they play a trick: by citing an incomplete expression of the Subsection 75(3), which is totally irrelevant to "intent to reside"! Please read the following rejection letter and my reply:

Dear xxx:

I have now completed the assessment of your application for a permanent resident visa as a skilled worker. I have determined that you do not meet the requirements for immigration to Canada.

Subsection 75(1) of the Immigration and Refugee Protection Regulations states that the federal skilled worker class is hereby prescribed as a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada and who intend to reside in a province other than the Province of Quebec.

Although you indicated on your application form that you intend to reside in Vancouver, you currently live and work in Montreal, Quebec. Furthermore, you have not completed your course of study at Concordia University. On January 30, 2015, I wrote to you outlining my concerns and provided you with 30 days to respond to these concerns. On February 25, 2015 you responded by stating that you believed there would be opportunities in Vancouver for you upon graduation.

I am not satisfied that you intend to reside in a province other than the province of Quebec. You are still studying, working and living in Montreal. While you have been looking for employment in early 2015, you have not made definite arrangements to live in Vancouver. I am therefore not satisfied you intend to reside in a province other than the Province of Quebec.

Subsection 75(3)states that if a foreign national fails to meet these requirements, the application shall be refused and no further assessment is required. I am not satisfied that you meet these requirements.

Subsection 11(1) of the Act states that a foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. Subsection 2(2) specifies that unless otherwise indicated, references in the Act to “this Act” include regulations made under it.

Following an examination of your application, I am not satisfied that you meet the requirements of the Act and the regulations for the reasons explained above. I am therefore refusing your application.

Thank you for the interest you have shown in Canada.

Dear officer,

Thanks for your reply. After consulting for legal advice, I believe the basis of your refusal to my application shows a misunderstanding and misuse of subsection 75(1) of the Immigration and Refugee Protection Regulations.

(1) Subsection 75(1) of the Immigration and Refugee Protection Regulations defines "the federal skilled worker class" as "... who are... who may ... who intend to reside in a province other than the Province of Quebec". A legal definition of the "intent' or "intention" is "will and purpose". The application itself is a strong evidence of the "will and purpose", that's why applicants from any other countries and regions are not required to provide extra evidence of the intent.

It's clear that you are expecting evidence of my "definite arrangements to live in Vancouver" beyond "will and purpose", that's totally unfair for applicants from Quebec under PhD stream. Most applicants from other countries and regions get accepted without providing any "definite arrangements" in the province they intend to immigrate into, then why applicants temporarily living in Quebec are particularly required to do so? This misunderstanding of "intent" and requirement of "definite arrangements" violates the regulation, and the principle of "equality". It is a sign of discrimination.

Moreover, if your true concern is "false statement" of the intent, then you have to give evidences or proofs on this charge before using it against an application.

(2) You cited "Subsection 75(3)" as the basis of your refusal. However, your citation is incomplete. Complete expression of Subsection 75(3) is "If the foreign national fails to meet the requirements of subsection (2), the application ... ". Subsection (2) is the definition of the "skilled worker", it is not related to "Intent of living". If your "unsatisfactory" is based on subsection (2), your refusal is a clearly misuse of the Immigration and Refugee Protection Regulations. Actually, by carefully reading the Immigration and Refugee Protection Regulations, we could not find any section that could be used to support your "unsatisfactory".

Based on above argument, I hereby request you to give me a legal reason to support your determination, or withdraw your determination and reconsider my application.

I look forward to your reply at your earliest convenience.

Best regards,
xxx

It is clearly shown that what they are expecting (definite arrangement) is not supported by the act. Then you may ask, since they claim "references in the Act to 'this Act' include regulations made under it", there might be some other regulations made under it to support their rejection. I believe they don't, otherwise they will put it out to avoid possible lawsuit! (Please tell me if you know some)

Therefore, I'm asking all rejected applicants under the same reason to network here to discuss what you are thinking, and what's the most effective reaction? Lawsuit? attract media concerning?

 

[scylla]

The most effective reaction would be to appeal the refusal of your application with the help of an experienced immigration lawyer. Good luck.

 

[xijunw]

The most effective reaction would be to appeal the refusal of your application with the help of an experienced immigration lawyer. Good luck.

Thank you scylla, that's what I am thinking. But before I put time and money on this, I'd like to hear some response from the community. The charge I made on them is non-trivial. It is hard to believe that CPC-Ottawa would make this type of mistake. I hope people here would provide me some more information or legal advice.

Also, it would be appreciated if someone tell me how much it might cost in total to hire a lawyer to complete the appeal.

 

[scylla]

I can't answer your first question.

For your second question - I would expect $3K to $6K for the appeal.

 

[xijunw]

I can't answer your first question.

For your second question - I would expect $3K to $6K for the appeal.

Thank you very much, scylla!

 

[xijunw]

Permanent Immigration To Canada: Options For Students And Post-Graduate Work Permit Holders
(Taken from Attorney David Cohen's Newsletter. Please google for full report.)

Changes to certain aspects of Canada’s immigration selection system, and how they may affect past, present and future international students in Canada, have come under the spotlight recently. Reports in some major media publications have led to the perception that these changes have made it more difficult for international students who have graduated from Canadian universities to become permanent residents.

 

[KHase24]

Hello,
I hope this mail meets you well.
Please I would be grateful to read from you as regards what you eventually did regarding your rejection by CIC with respect to the Express entry application for permanent residence.

Did the VO respond to the mail you sent after you received his decision on your application?

Did you eventually decide to appeal the decision? If yes what's the current status of the case?

I am currently in the same boat as you were a couple of years of back and I would be grateful for whatever guidiance or advice you can provide.

Regards
Charles

Hey, there,

It is known that Federal FSW-PhD stream applicants from Quebec University are required to provide proof of "definite arrangement" for their "intent tof reside outside Quebec". "Definite arrangement" includes job offer, real estate, relatives, which most PhD students do not have. Many got rejected include me.

However, this so called "definite arrangement" have never been required for applicants from other countries and regions. So why applicants from Quebec are treated specially, and what's their legal basis? After carefully examined their reason of rejection, I found their basis could not stand strictly: the rejection is based on one sentence in the "Immigration and Refugee Protection Regulations", subsection 75(1), "... the federal skilled worker class is hereby prescribed as a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada and who intend to reside in a province other than the Province of Quebec." However, there are no further terms bound to the last definition "who intend to reside in a province other than the Province of Quebec."!!!

What does this mean? It means "definite arrangement" are not required by this regulation. When the act was made, they do not think you need to prove your intention as long as you assign a province other than Quebec in your application. It means the "intent" is some thought you do not have to prove. It means all rejection based on "intent to reside" are not legally stand since you actually do not violate any terms. Then, how did the VO rationalize their rejection if they don't have a corresponding term to cite? That's where they play a trick: by citing an incomplete expression of the Subsection 75(3), which is totally irrelevant to "intent to reside"! Please read the following rejection letter and my reply:





It is clearly shown that what they are expecting (definite arrangement) is not supported by the act. Then you may ask, since they claim "references in the Act to 'this Act' include regulations made under it", there might be some other regulations made under it to support their rejection. I believe they don't, otherwise they will put it out to avoid possible lawsuit! (Please tell me if you know some)

Therefore, I'm asking all rejected applicants under the same reason to network here to discuss what you are thinking, and what's the most effective reaction? Lawsuit? attract media concerning?

Thank you scylla, that's what I am thinking. But before I put time and money on this, I'd like to hear some response from the community. The charge I made on them is non-trivial. It is hard to believe that CPC-Ottawa would make this type of mistake. I hope people here would provide me some more information or legal advice.

Also, it would be appreciated if someone tell me how much it might cost in total to hire a lawyer to complete the appeal.

 

[steaky]

Why spend money on lawyers / education when buying real estate or get job offers can solve the problem?

 

[xijunw]

Hello Charles, it is sad to know that you ran into the same situation. Good news is, I had already got my PR and have been living in BC for over a year with my family joining me. I am going to tell you the remain part of the story, how did I win the appealing (or juicial review) and what could be useful for you.

First of all, appeal to the federal court. Yes, appealing is the key step to take. In the appealing file, I tried to challenge the rationalization of VO's decision, and I got the "grant for leave" from the court, which showed that the judge believe I was not making nonsense, and allowed an legal case to be started. However, the key to the final victory is not because what I argued. It is because another appealing case with almost exactly the same situation with mine. (Apple Mahmud vs CIC, 2015-08-20, Docket: IMM-705-15)

In Mahmud's case, he, like all of us, student in Montreal, applied for PR via federal PhD stream, rejected, then appealed. He hired a lawyer (probably cost a bunch of money). The hearing was hold in a Vancouver court he chose. The judge finally decided that Apple won, because:

" ...the Officer’s decision is unreasonable because it is not supported by the evidence. Here, the applicant responded promptly to the Officer’s concerns regarding his intention of residing outside of Québec. He even added that his wife would not be able to practice dentistry in Québec to support his intention of leaving that province;" (original word from the court's decision)

"The applicant responded and provided an email from Dr. ******, a professor of engineering at the University of Calgary regarding research collaboration in Alberta. He also informed the Officer about his wife’s inability to practice dentistry in Québec because she does not speak French;"(original words from the court's decision)

Therefore, the key to Mahmud's success is evidence, the evidence that show any action or reason that you want to move to and reside in the destination province.

CIC lose because they could not provide any more evidence that the applicant would not leave Quebec besides the fact that the applicants are currently live here. It is impossible for them to prove their claim. Therefore, they always lose! As far as I know, there were 3 similar cases of appealing at that time include mine, and all of them eventually got PR. Chances to win is 100%.

In my case, I also showed that I have 3 reasons to move to BC. Weather reason(BC is warmer) Culture reason (large Chinese population in BC, more Chinese food) Language reason (Poor French). I also had provided VO some emails showing that I was looking for jobs in BC.(Action is always stronger evidence)

Therefore, soon after Muhmed's case decision, I received a call from CIC's lawyer to seek settlement for my appeal. CIC offered to review my case if I agree to discontinue the appealing.

Then, I accept CIC's offer, discontinued the appeal and agreed to provide more evidence of "definite arrangement" to CIC. Yes, once you return to CIC, "definite arrangement" is the only way to satisfy the officer.

You may have one question here: I was questioning the fundamental of the VO's decision -- should they rejected us based on subsection 75(1)? Is it fair for them to ask for "definite arrangement"? why the judge did not decide that this kind of rejection should never happen again? Unfortunately, neither Muhmed's case nor mine went that further. In Mahmud’s case, the judge wrote "it is unnecessary to address the applicant’s argument on the question of procedural fairness;". The judge did not touch their base stone. That's probably why PhD applicants from Quebec are still suffering from the rejection.

So, what kind of "definite arrangement" I provided to them? At that time, I consulted with a lawyer, a very nice man who charges student in a very low rate. Based on his advice, I decided to do the following things:

(1) First of all, I moved to Cornwall and changed my address to Ontario. I am no longer a Quebec resident then. Once I was not a resident of Quebec, how could CIC charge me any more for living in Quebec?

That was not easy, anyway. Cornwall is a little city in Ontario, 100 km away from Montreal. I commuted between Cornwall and Montreal to continue my study. Fortunately my program was just about to finish in around 3 months at that time. I know another student from McGill moved his whole family to Toronto for the same reason. Is this suspicious to the VO? Yes. So I explained to them that this move was to show my determination to leave QC after my application was rejected. It seems they were fine with the explanation.

(2) Secondly, I further demonstrated that I have strong intent to move to my destination province which is BC. Therefore, I rent a room in Vancouver for my arrival after 3 months. I showed VO the lease. I sent some of my personal stuff to my friend in Vancouver and showed VO the shipping receipt. I booked an air ticket to BC and showed VO the tickets. This is a strong evidence chain showing that I am serious on moving to BC.

Of Couse this is not what I want to do at a very early time. But this is the "definite arrangement" that the VO officers want to see.

I submitted all the above document in 30 days. Then about 1 month later I got the request to do physical exam. Another month later I got the acceptation letter, it was just a few days after I arrived Vancouver.

Finally, some information about the appealing process:

(1) You don't have to find a lawyer to file an appeal in the federal court. I did it myself, with the help from a friend. It only cost me $50 when submiting the documents to the court, and 3 nights to prepare them.

(2) All the procedure and documents you need to file an appeal is written in the "ENF 09 - Judicial Review". (Link: www.cic.gc.ca/English/resources/manuals/enf/enf09-eng.pdf)

(3) All the documents I prepared including order on Muhmed's case can be shared with you upon request. You definitely want to cite them in your filing document.

(4) There is time limit for you to file an appeal. 30 days. However, if you miss it, you can still try to seek for "extension of time" to get your "leave". For me, it was 6 months after I get rejected when I filed the case in the court. There are 2 situations in which that you can get the grant for extension of time: Reason for appealing does not change with time; The VO officer's decision did not tell you that you have the right to appeal or they did not tell you the time limit. (failure to perform duty of disclosure)

Feel free to ask me for more details. I will try my best.

Good luck!

Hello,
I hope this mail meets you well.
Please I would be grateful to read from you as regards what you eventually did regarding your rejection by CIC with respect to the Express entry application for permanent residence.

Did the VO respond to the mail you sent after you received his decision on your application?

Did you eventually decide to appeal the decision? If yes what's the current status of the case?

I am currently in the same boat as you were a couple of years of back and I would be grateful for whatever guidiance or advice you can provide.

Regards
Charles

 

[applebuet]

Hi xijunw

I am Apple Mahmud who was in the federal court for this case that you mentioned here. (Apple Mahmud vs CIC, 2015-08-20, Docket: IMM-705-15)

I was trying to look at the original decision file for some personal purpose. but unfortunately couldn't retrieve the file.
If you can give me the link of my case detailed, it would be very helpful. which website at what pages I will be able to retrieve the file please let me know.
Thanks in advance!
Apple

Hey, there,

It is known that Federal FSW-PhD stream applicants from Quebec University are required to provide proof of "definite arrangement" for their "intent tof reside outside Quebec". "Definite arrangement" includes job offer, real estate, relatives, which most PhD students do not have. Many got rejected include me.

However, this so called "definite arrangement" have never been required for applicants from other countries and regions. So why applicants from Quebec are treated specially, and what's their legal basis? After carefully examined their reason of rejection, I found their basis could not stand strictly: the rejection is based on one sentence in the "Immigration and Refugee Protection Regulations", subsection 75(1), "... the federal skilled worker class is hereby prescribed as a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada and who intend to reside in a province other than the Province of Quebec." However, there are no further terms bound to the last definition "who intend to reside in a province other than the Province of Quebec."!!!

What does this mean? It means "definite arrangement" are not required by this regulation. When the act was made, they do not think you need to prove your intention as long as you assign a province other than Quebec in your application. It means the "intent" is some thought you do not have to prove. It means all rejection based on "intent to reside" are not legally stand since you actually do not violate any terms. Then, how did the VO rationalize their rejection if they don't have a corresponding term to cite? That's where they play a trick: by citing an incomplete expression of the Subsection 75(3), which is totally irrelevant to "intent to reside"! Please read the following rejection letter and my reply:





It is clearly shown that what they are expecting (definite arrangement) is not supported by the act. Then you may ask, since they claim "references in the Act to 'this Act' include regulations made under it", there might be some other regulations made under it to support their rejection. I believe they don't, otherwise they will put it out to avoid possible lawsuit! (Please tell me if you know some)

Therefore, I'm asking all rejected applicants under the same reason to network here to discuss what you are thinking, and what's the most effective reaction? Lawsuit? attract media concerning?

Hello Charles, it is sad to know that you ran into the same situation. Good news is, I had already got my PR and have been living in BC for over a year with my family joining me. I am going to tell you the remain part of the story, how did I win the appealing (or juicial review) and what could be useful for you.

First of all, appeal to the federal court. Yes, appealing is the key step to take. In the appealing file, I tried to challenge the rationalization of VO's decision, and I got the "grant for leave" from the court, which showed that the judge believe I was not making nonsense, and allowed an legal case to be started. However, the key to the final victory is not because what I argued. It is because another appealing case with almost exactly the same situation with mine. (Apple Mahmud vs CIC, 2015-08-20, Docket: IMM-705-15)

In Mahmud's case, he, like all of us, student in Montreal, applied for PR via federal PhD stream, rejected, then appealed. He hired a lawyer (probably cost a bunch of money). The hearing was hold in a Vancouver court he chose. The judge finally decided that Apple won, because:

" ...the Officer’s decision is unreasonable because it is not supported by the evidence. Here, the applicant responded promptly to the Officer’s concerns regarding his intention of residing outside of Québec. He even added that his wife would not be able to practice dentistry in Québec to support his intention of leaving that province;" (original word from the court's decision)

"The applicant responded and provided an email from Dr. ******, a professor of engineering at the University of Calgary regarding research collaboration in Alberta. He also informed the Officer about his wife’s inability to practice dentistry in Québec because she does not speak French;"(original words from the court's decision)

Therefore, the key to Mahmud's success is evidence, the evidence that show any action or reason that you want to move to and reside in the destination province.

CIC lose because they could not provide any more evidence that the applicant would not leave Quebec besides the fact that the applicants are currently live here. It is impossible for them to prove their claim. Therefore, they always lose! As far as I know, there were 3 similar cases of appealing at that time include mine, and all of them eventually got PR. Chances to win is 100%.

In my case, I also showed that I have 3 reasons to move to BC. Weather reason(BC is warmer) Culture reason (large Chinese population in BC, more Chinese food) Language reason (Poor French). I also had provided VO some emails showing that I was looking for jobs in BC.(Action is always stronger evidence)

Therefore, soon after Muhmed's case decision, I received a call from CIC's lawyer to seek settlement for my appeal. CIC offered to review my case if I agree to discontinue the appealing.

Then, I accept CIC's offer, discontinued the appeal and agreed to provide more evidence of "definite arrangement" to CIC. Yes, once you return to CIC, "definite arrangement" is the only way to satisfy the officer.

You may have one question here: I was questioning the fundamental of the VO's decision -- should they rejected us based on subsection 75(1)? Is it fair for them to ask for "definite arrangement"? why the judge did not decide that this kind of rejection should never happen again? Unfortunately, neither Muhmed's case nor mine went that further. In Mahmud’s case, the judge wrote "it is unnecessary to address the applicant’s argument on the question of procedural fairness;". The judge did not touch their base stone. That's probably why PhD applicants from Quebec are still suffering from the rejection.

So, what kind of "definite arrangement" I provided to them? At that time, I consulted with a lawyer, a very nice man who charges student in a very low rate. Based on his advice, I decided to do the following things:

(1) First of all, I moved to Cornwall and changed my address to Ontario. I am no longer a Quebec resident then. Once I was not a resident of Quebec, how could CIC charge me any more for living in Quebec?

That was not easy, anyway. Cornwall is a little city in Ontario, 100 km away from Montreal. I commuted between Cornwall and Montreal to continue my study. Fortunately my program was just about to finish in around 3 months at that time. I know another student from McGill moved his whole family to Toronto for the same reason. Is this suspicious to the VO? Yes. So I explained to them that this move was to show my determination to leave QC after my application was rejected. It seems they were fine with the explanation.

(2) Secondly, I further demonstrated that I have strong intent to move to my destination province which is BC. Therefore, I rent a room in Vancouver for my arrival after 3 months. I showed VO the lease. I sent some of my personal stuff to my friend in Vancouver and showed VO the shipping receipt. I booked an air ticket to BC and showed VO the tickets. This is a strong evidence chain showing that I am serious on moving to BC.

Of Couse this is not what I want to do at a very early time. But this is the "definite arrangement" that the VO officers want to see.

I submitted all the above document in 30 days. Then about 1 month later I got the request to do physical exam. Another month later I got the acceptation letter, it was just a few days after I arrived Vancouver.

Finally, some information about the appealing process:

(1) You don't have to find a lawyer to file an appeal in the federal court. I did it myself, with the help from a friend. It only cost me $50 when submiting the documents to the court, and 3 nights to prepare them.

(2) All the procedure and documents you need to file an appeal is written in the "ENF 09 - Judicial Review". (Link: www.cic.gc.ca/English/resources/manuals/enf/enf09-eng.pdf)

(3) All the documents I prepared including order on Muhmed's case can be shared with you upon request. You definitely want to cite them in your filing document.

(4) There is time limit for you to file an appeal. 30 days. However, if you miss it, you can still try to seek for "extension of time" to get your "leave". For me, it was 6 months after I get rejected when I filed the case in the court. There are 2 situations in which that you can get the grant for extension of time: Reason for appealing does not change with time; The VO officer's decision did not tell you that you have the right to appeal or they did not tell you the time limit. (failure to perform duty of disclosure)

Feel free to ask me for more details. I will try my best.

Good luck!