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May 14, 2024

Surent Sivasubramaniam v. The Minister of Citizenship and Immigration and The Minister of Public Safety and Emergency Preparedness

Mr. Sivasubramaniam is a Sri Lankan national who entered Canada on a Study Permit.  He had planned to pursue his studies at a DLI in January 2023, however, after arriving in Canada he discovered that the institution did not offer a Post-Graduate Work Permit.

He then proceeded to explore other post-secondary education options, and was unable to find a program opening prior to September 2023. During his search, Mr. Sivasubramaniam applied to Immigration Canada to change his status from Student to Visitor, but his application was Administratively Withdrawn by IRCC on July 6, 2023.

Subsequently, Mr. Sivasubramaniam was offered a job in Canada and his prospective Canadian employer applied for and received a Labour Market Impact Assessment.  Mr. Sivasubramaniam, then applied for a Work Permit to change in temporary resident status from student to worker. To do so, he exited Canada (“flag poled”) via the U.S.A. land border. However, it was here where he ran into trouble.

After providing his Work Permit application to the port of entry officer, the Minister’s Delegate found Mr. Sivasubramaniam to be inadmissible, and subsequently issued an Exclusion Order against him.

The Minister’s Delegate based the Exclusion Order on his finding that Mr. Sivasubramaniam had not complied with the conditions imposed on him as a study permit holder.  This finding was based on the Minister’s Delegate’s Review of the GCMS notes on Mr. Sivasubramaniam’s immigration file.

Those notes stated that Mr. Sivasubramaniam “is not currently attending school nor has any intention to do so as he has withdrawn.”  The notes go on to recite paragraph 220.1(1)(b) of the IRPR, which state that the holder of a study permit “shall actively pursue their course or program of study”. 

The Minister’s Delegate therefore found that Mr. Sivasubramaniam “was not actively pursuing his program of study” and therefore, pursuant to paragraph 200(3)(e)(i) of the IRPR, he could not issue Mr. Sivasubramaniam a work permit in light of subsection 29(2) of the IRPA.

Eastman Law Office successfully argued before the Federal Court that IRCC should have approved Mr. Sivasubramaniam’s application to change conditions from student to visitor because he was no longer attending school, and therefore the Minister’s Delegate erred in issuing an Exclusion Order against Mr. Sivasubramaniam, because, according to the guidelines, Mr. Sivasubramaniam remained compliant with his Study Permit. 

Immigration Canada agreed with Eastman Law Office’s legal argument and consented to the Federal Court granting Mr. Sivasubramaniam’s Application for Leave and Judicial Review. The court ordered that the Exclusion Order issued against Mr. Sivasubramaniam be quashed and that his application to change conditions from a student to a visitor be reopened and reconsidered by another officer.

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