03/14/2023
Do you need an authorization to study online at a Canadian institution while being outside of Canada? The following FCC case has the answer.
In March 2023 Federal Court of Canada decision (Mohammadaghaei v. Canada (Citizenship and Immigration), the Court was asked to decide on a reasonableness of a decision of a visa officer refusing an applicant’s study permit application. The Court determined that the decision was unreasonable as the officer considered negatively factors that were not relevant to the case. The applicant is a 18 year old Iranian girl who had been studying at a private college in Ontario before an in-person attendance was required to complete her program of study. She was required to apply for study permit and complete her high school in person in Ontario. Her application was refused as the officer was not satisfied that she would leave Canada at the end of her stay. The following factors were considered:
1. Applicant is a single, mobile, not well established and has no dependents.
2. Applicant could not demonstrate strong ties to Iran.
3. Applicant had been studying online (from Iran) at a Canadian school without proper authorization.
4. No IELTS or other acceptable proof of English proficiency provided.
5. Recent Education transcripts not provided.
The Federal Court has dealt with most of the above factors one by one. Here is what the court had to say:
1. The officer considers the applicant's status as a single, mobile, and lacking dependents to be negative factors. The court asks a rhetorical question, “what 17- or 18-year-old student would not be single? What 17- or 18-year-old student would have dependants? And finally, what 17- or 18-year-old would not be relatively mobile? The Court questions why these factors are considered negative as they are common among young students who wish to study in Canada. The Court also suggests that these characteristics may not necessarily make someone more likely to violate Canadian law and that there should be an explanation as to why these characteristics would do so.
2. In the refusal letter, the Court notes the officer’s statement that based upon the Applicant’s family ties in Canada, and he is not satisfied she will leave Canada at the end of her stay. The Court mentions that there is no evidence that the applicant has any family member in Canada and that this observation “appears to be a clear factual error – or worse – the Officer may be confusing this Applicant with another who has family ties in Canada.”
3. The officer considers it negative that the applicant did not obtain a study permit before starting her online courses. However, the Court notes that there is no Canadian law that requires foreign nationals to obtain a permit of any kind to study online from their home country or anywhere else. Therefore, the Court deems the officer's consideration irrelevant.
4. The Officer's negative consideration of the Applicant's failure to provide proof of English Second Language testing, specifically the standardized International English Language Testing System (IELTS) or another recognized method, is unwarranted. The school did not impose an English language testing requirement, and instead stated that testing would occur upon arrival in Canada. Moreover, the applicant is currently enrolled in online courses that include English language training. Given the absence of any Canadian legislation or regulation mandating proof of ESL testing before starting studies in Canada, the Court deemed the Officer's observation on this matter to be irrelevant.
With these errors in the officer’s decision, the Federal Court of Canada ordered that a decision be set aside and sent for re-determination by a different officer.
Key takeaways
1) Young applicant’s lack of dependents, marital status or their relatively mobile nature should not be regarded as a negative factor. These characteristics are present in a vast number of study permit applicants. In other words, young applicants should not be expected to marry and/or have dependents to overcome the officer’s stated negative considerations.
2) There is no Canadian law that prohibits any person from taking classes online from outside country. They only need to obtain study permit if they wish to pursue their studies while being physically in Canada.
3) Proof of language proficiency is not needed if the school does not require such certification. There are various ways to satisfy the language requirements, one being an internal school testing.
Source: https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/523040/index.do
