加拿大学签联邦法院判例汇总-2024

2024年6月27日

讀畢需時 13 分鐘

加拿大学签判例法汇总，主要是针对学签被拒签，相关的判例法支撑自己的再次申请。

换个角度就是，如果申请学签，是否和签证官提供了合理的解释。

一、拒签原因：申请人的学习计划与学习/工作经验不合理/不合逻辑

Refusal Reason: Applicant’s plan of study unreasonable/illogical in relation to study/work experience

1.Mouivand v Canada (CI), 2023 FC 573

拒签理由：Study Permit was refused because the Officer was not satisfied that the Applicant would leave Canada at the end of his authorized stay, based on family ties, country of residence, and purpose of visit

司法复核：Application for judicial review allowed

签证官在申请中没有考虑申请中的学习计划和解释信。

Officer failed to engage with Applicant’s explanation letter and study plan in their reasoning

2. Safarian v Canada (CI), 2023 FC 775

拒签理由：Refused Study Permit because Officer was not satisfied that the study plan was reasonable, his previous studies were in an unrelated field, and the letter from his employer stated that he would obtain a promotion but made no mention of a salary increase

司法复核：Application for judicial review allowed

The fact that an Applicant’s previous and proposed studies are in different fields is not sufficient reasoning

申请人之前的学习和计划学习属于不同领域这一事实不足以作为理由拒签（针对转专业的人）

3.Nia v Canada (CI), 2022 FC 1648

拒签理由：Officer’s primary reason for refusing the Applicant’s study permit application was that the program is a lower level of education than the Applicant’s previous degrees, and is therefore unreasonable in relation to career path（倒读）

司法复核：Application for judicial review allowed

法院认为：签证官不是职业顾问。

Officer cannot be a career counsellor, citing Adom (below)

Para 29: “ The same reasoning can be applied in the Applicant’s case. The Officer provides no substantive reason for deciding that the Applicant’s pursued program of study is illogical given her previous education at a higher level, especially in the context of her detailed evidence explaining the purpose of this pursuit. Rather than carry out an intelligible, justified and transparent analysis of this evidence, the Officer’s reasoning exhibits a “foray into career counselling” that lacks reasonableness (Seyedsalehi at para 16, citing Adom at para 17).”

同样的推理也适用于申请人的案件。鉴于申请人之前接受过较高水平的教育，特别是在她有详细证据解释这一目的的情况下，但签证官没有提供实质性理由来决定申请人所追求的学习是不合逻辑的。而是表现出缺乏合理性的“涉足职业咨询”

4.Jalilvand v Canada (CI), 2022 FC 1587

法院认为：签证官的角色不是决定学习的价值；（针对签证官认为申请人的学习不是合理的支出）

It is not the role of the Officer to determine the value of learning

Para 18: “Third, the officer states that they are not satisfied the proposed studies would be a reasonable expense. As this Court has held, it is not the role of the officer to determine the value of learning to an applicant, nor to offer career counselling advice: Lingepo v Canada (Citizenship and Immigration), 2021 FC 552 at para 18; Adom v Canada (Citizenship and Immigration), 2019 FC 26 at para 16.”

5. Afuah v Canada (MCI), 2021 FC 596

法院认为：签证官要求提供一定程度的解释，以证明学习计划相对于之前的学习/工作不合理，特别是在有迹象表明申请人在之前已经有相关经验的基础上。比如申请者学习的是财务，但是要转码，但是申请者有学习编码的经历和相关证书，签证官需要提供解释为什么这个是不合理的，不然的话，拒签是不合理的。（针对转专业的案例）

Some degree of explanation required by visa officer to justify finding that study plan is unreasonable in relation to prior studies/work, especially where there is some indication of prior involvement in that area.

Para 12: “While Mr. Menkem-Afuah’s earlier studies were in a different area, there is no explanation why the officer found pursuing a different career unreasonable, particularly after he had worked as a property manager for three years and completed an (admittedly brief) internship at a hotel.”

6. Adom v Canada (MCI), 2019 FC 26

法院认为：签证官不是职业顾问。

It is not an Officer’s place to give what could be properly categorised as career counselling advice.

Para 16: “…[t]his Visa Officer apparently fancied the opportunity to assume the role of career counsellor an opine that the Applicant’s intended studies in Canada would not enhance her work for her brother. Such extraneous considerations make it obvious that the Visa Officer engaged in an unreasonable review of the evidence.”

7.Omijie v Canada (MCI), 2018 FC 878

拒签理由：Officer’s rejection of Study Permit application turned on his finding that “…the applicant has already completed a qualification at the same level to that which the applicant proposes to study in Canada. […] Unclear why applicant would incur costs of relocating to Canada in order to undertake study at the same academic level to that already completed.”(平读)

法院认为：如果签证官认为所学项目与之前完成的教育项目足够相似，从而引起对学生真实身份的疑问，则需要做出解释。

If Officer is going to conclude that the program at issue is sufficiently similar to a previously completed educational program to raise concerns over bona fide status of student, an explanation is required.

The Officer didn’t appear to question any of the evidence provided by the Applicant to explain why he wanted to participate in this program, yet concluded that it was “unclear” why he would relocate to Canada

二、拒签理由：申请者可以在原籍国就读类似的项目

Refusal Reason: Local education alternatives are available in Applicant’s country of origin

1.Nesarzadeh v Canada (CI), 2023 FC 568

拒签理由：Applicant wanted to come to Canada to complete Grade 12 and to pursue post-secondary education in Canada before returning to Iran to work on his family farm.

The Officer found that the course of study did not make sense, because Applicant could complete high school in Iran for a fraction of a cost

法院认为：签证官需要为结论提供理由。签证官认为申请人及其家人花这么多钱送他去加拿大完成高中是错误的，但官员需要根据申请人这样做的原因解释为什么他们得出这样的结论。

The Court stated that the Officer needed to provide reasoning for this conclusion

Para 15: “The Officer may think that the Applicant and his family are making a mistake in spending so much money to send him to Canada to finish high school, but the Officer needed to explain why they reached that conclusion in light of the Applicant’s reasons for doing this.”

2.Afuah v Canada (MCI), 2021 FC 596

法院认为：若申请人就以下问题提出解释和支持证据：为什么他要攻读加拿大课程而不是原籍国课程，且签证官在拒绝学习许可申请时依赖于“当地可用的替代方案”，那么仅提及未确定的替代方案不足以满足合理性要求；

If an Applicant puts forward explanations and supporting evidence re: why he is pursuing a Canadian program instead of one in COI and officer relies on the grounds of “locally available alternatives” in refusing a Study Permit application, mere reference to unidentified alternatives is insufficient to meet the requirements of reasonableness (paras 13-15).

3. Patel v Canada (MCI), 2020 FC 77

法院认为：仅本地可用替代方案的成本较低，而因为申请人选择支付更多费用来加拿大学习拒签申请人是不合逻辑的

Lower cost of locally available alternatives alone does not render Applicant’s choice to pay more to study in Canada illogical

Para 19: “…[L]ower-cost options for English programs in India does not make enrollment in a Canadian English program unreasonable. Foreign students worldwide often pay substantial fees for the experience of studying abroad, and all the salutary effects that it may have, including receiving advanced education, improving language skills, gaining international perspectives, being immersed in foreign cultures, and improving career prospects.”

印度英语课程的成本较低，但这并不意味着报名加拿大英语课程是不合理的。世界各地的外国学生经常为出国留学的经历及其可能产生的所有有益效果支付大量费用，包括接受高等教育、提高语言技能、获得国际视野、沉浸在外国文化中以及改善职业前景；

三、拒签理由：缺乏旅行历史

Refusal Reason: Lack of Travel History

1.Ocran v Canada (CI), 2022 FC 175

法院认为：将缺乏任何旅行历史视为负面因素是错误的, 换句话说，不能仅仅因为申请人缺乏履行历史拒签申请人。

Treating lack of any travel history as a negative factor is an error (although it may not be fatal on JR – see para 48).

Treating lack of travel history as positive or neutral factor is proper.

The applicant had no travel history outside Ghana. She contended that the officer erred by using the absence of any travel history as a negative factor, when it should have been at most neutral (citing Patel v Canada (Citizenship and Immigration), 2020 FC 517, at para 18 and Adom v Canada (Citizenship and Immigration), 2019 FC 26, at para 15).

2. Iyiola v Canada (MCI), 2020 FC 324

法院认为：在我看来，将缺乏出国旅行记录本身（并且没有其他东西，例如不良旅行记录）解释为个人将在加拿大停留超过其授权时间的迹象是不可理解的.

Para 20: “…it is unintelligible in my view to construe a lack of documented travel abroad in itself [and without something else, such as a negative travel history] as an indication that an individual will overstay their authorized time in Canada.”

3.Donkor v Canada (MCI), 2011 FC 141

法院认为：之前出入境记录是积极因素。

Prior history of leaving and returning to the country of residence may be a positive factor; other circumstances may be a neutral or negative factor (para 9) BUT the recent case law says that a lack of travel history cannot be negative factor (see Iyiola and Ocran above)

四、拒签理由：资金不足

Refusal Reason: Proof of Finances

1.Ezedu v Canada (MCI), 2022 FC 582

法院认为：在提交学习许可申请(学签)之前，不规律，一次性存入银行账户将会造成签证官疑问，——不足以证明对申请人的持续财务支持。也就是说如果有大笔进账，需要解释，如果无解释，签证官可认为这笔钱是借来的或其他来源，从而认为申请者没有此资金。

Irregular, lump sum deposits into bank account right before study permit application is submitted will raise questions for Officer (para 17) – insufficient to demonstrate sustained financial support for the applicants

2.Ohuaregbe v Canada (CI), 2023 FC 480

拒签理由：Application for Study Permit refused because Officer not satisfied that Applicant would leave Canada at the end of her stay based on personal assets and financial status

法院认为：申请者应该解释其收入的来源和范围。

Para 24: ”In the present matter, the Officer was not satisfied with the state of the Applicant’s financial information as reflected in her bank statements. The Applicant did not explain the nature and extent of her other income sources in her application. For instance, the Applicant’s Statement of Intent states only that “I equally have income from my registered Business Management Firm with monthly return on investment and a Board member of ITATS Pharmacia Limited, the benefit of being a member of the board comes with financial bonuses and profit sharing yearly.” Accordingly, the Officer reasonably rejected the Applicant’s study permit application due to “[c]oncerns that these funds would be sufficient and available for the whole course”. The Officer had no discretion to conclude otherwise (Adekoya at para 9).”

Para 25: “This conclusion is sufficient to dismiss this application”

五、拒签理由：原籍国缺乏家庭纽带

Refusal Reason: Lack of Family Ties in COI

1.Mouivand v Canada (CI), 2023 FC 573

法院认为：申请人的婚姻状况、流动性和缺乏家属是相关的个人因素，签证官可以将其作为整体分析的一部分予以考虑，但在没有进一步分析的情况下，不能将其视为负面因素

Para 11: “That is, an applicant’s marital status, mobility, and lack of dependents are relevant personal factors that can by considered by a visa officer as part of an overall analysis but, without any further analysis, cannot be considered a negative factor (Tehrani at paras 18, 19; Hassanpour at para 19; Gilavan at para 22).”

2. Nesarzadeh v Canada (CI), 2023 FC 568

法院认为在没有解释的情况下，高中生单身不能作为负面的因素

The fact that a high school student is single, cannot be a negative factor, without explanation

Para 17: “In addition, the fact that a person entering Grade 12 is unmarried and has no children may support a finding that the “push” factors would lead the Applicant to try to remain in Canada, depending on the particular circumstances of the case (for example, if all of their other close family members had previously come to Canada). This will depend on the facts of each case because, as this Court has often noted, it is not uncommon for younger people to be single and without dependents. The relevance of this particular fact needs to be explained by an Officer who seeks to rely on it. In this case, that was not done.”

3.Gilavan v Canada (CI), 2022 FC 1698

法院认为模板理由不是充足的解释

Boilerplate statements are not sufficient explanations.

Para 17: “The refusal letter sets out a boilerplate statement that the Officer is not satisfied that the Applicant will leave Canada at the end of his stay “based on [his] family ties in Canada and in [his] country of residence.” The Officer’s GCMS notes, which form part of the Decision, are meant to explain the Officer’s findings. However, no such explanation is offered on the record before me.”

The Court cannot be left to speculate as to the reasons for a decision

4.Iyiola v Canada (MCI), 2020 FC 324

法院认为仅单身并不能成为申请人在逗留结束时不返回原籍国的充分理由. (不能仅仅因为单身拒签申请人)

Being single and having no dependents alone cannot be a sufficient reason to find that the applicant won’t return to COI at end of stay

Para 20: “…[A]n applicant’s lack of a dependent spouse or children, without any further analysis [as in this case], should not be considered a negative factor on a study permit application; otherwise, this would preclude many students from being eligible.”

Affirming: Onyeka v Canada (MCI), 2009 FC 336 at para 48

5.Bteich v Canada (MCI), 2019 FC 1230

Applicant = 19-y/o citizen of Lebanon

Applicant currently residing in Lebanon but has immediate family in Canada

Parents both have valid WPs (mother was working in Canada; evidence was unclear whether father was also present in Canada or if he just possessed a valid WP) & his 3 sisters were currently pursuing their education in Québec

法院认为签证官不应根据申请人在加拿大的家庭关系得出负面推论。如果有的话，官员应该将申请人家庭提供的经济支持视为积极因素。至少，该官员应该证明他/她的推理是合理的：仅仅因为申请人在加拿大有牢固的家庭关系就推断他/她将非法留在加拿大是不合理的。

Para 2: “…[T]he Officer should not have drawn negative inferences from the Applicant’s family ties in Canada. If anything the Officer should have considered the financial support the Applicant’s family provides as a positive factor. At the very least, the Officer should have justified his/her reasoning: it is unreasonable to infer that Applicant will remain in the country illegally simply because he has strong family ties in Canada.”

六、拒签理由：无法平衡学习和照顾孩子

Refusal Reason: Balancing childcare and studies

1.Jalilvand v Canada (CI), 2022 FC 1587

法院认为签证官应该关注身份证明和经济能力证明，而不是申请人如何平衡育儿和学习

Officer should be focused on proof of identity and financial sufficiency, not how the applicant will be able to balance childcare and studies.

Para 19: “Fourth, the officer observes that there is no information in the study permit application about childcare arrangements or how the PA plans to balance her studies and children. The PA’s evidence is that her children are school age and her motivation letter describes that her planned studies in Canada provide an opportunity for the children to study in an English-speaking country. Further, Immigration, Refugees and Citizenship Canada guidance for assessing study permit applications, as reproduced in the Applicants’ record, is focussed on proof of identity and financial sufficiency. The Court is left wondering how or why the officer weighed this childcare factor, especially when subsection 30(2) of the Immigration and Refugee Protection Act, SC 2001, c 27, authorizes minor children in Canada to study without a study permit if their parent is authorized to study.

七、拒签理由：之前的学习成绩不佳

Refusal Reason: Poor prior academic performance

1.Kumar v Canada (CI), 2023 FC 817

拒签理由：Officer found that Applicant’s transcripts had not demonstrated the academic proficiency required to successfully complete the study program

法院认为：不能仅仅因为之前学习成绩不佳而拒签申请人。申请人在某个学科不好不能证明他会在另外一个学科同样也不好。

Officers can consider prior academic performance, but in this case, was not done with care

Para 21: Specifically, the Officer failed to connect the dots between the Applicant’s previous academic history and the likelihood of success in his intended program of study. Without more, this Court is not in a position to assume that low grades in environmental studies and statistical analysis for example, necessarily means that the Applicant cannot excel in or complete a college program in International Business Management. Justice Norris’ insightful analysis on this point at paragraph 24 of Patel bears repeating: “one can complete a program successfully without necessarily excelling in it. And many of the factors that can determine academic success are dynamic, not static”.

八、旅转学案例

1.Li v. Canada (Citizenship and Immigration), 2020 FC 279

IRPR s 215(1)(f)(iii) is silent about what an in-Canada study permit applicant must provide in order to demonstrate they have completed a prerequisite course or program of study. Nor does the provision specify what constitutes a “prerequisite course or program of study”; instead, this falls within the purview of the DLI to determine: Virk v Canada (Citizenship and Immigration), 2018 FC 1181 at para 7.

Logically, there are at least two circumstances under which a correctly completed “form” LOA will indicate that conditions [or prerequisites] of acceptance are “N/A”: either there are none, or a DLI applicant completed the applicable prerequisite[s] for “enrolling” at the DLI and provided satisfactory proof of completion to the DLI prior to the issuance of the LOA, as occurred in this case.

Aslani v Canada (Minister of Citizenship and Immigration), 2022 FC 1729 拒签，因为没有提供相关支持性文件，说明材料一定要有逻辑并完整。

Virk v. Canada (Citizenship and Immigration), 2018 FC 1181

[7] As to the university using Mr. Virk’s previously completed courses, it was satisfied that, to use the language of the regulation, Mr. Virk “had completed a course or program of study that is a prerequisite”. It was the university’s decision, as a designated learning institution, to make, not the visa officer’s. There is no ambiguity whatsoever in the letter.

以上案例总结下来也就是签证官在审理申请时会考察的三个关键点：