Key Takeaways:
- International graduates in Canada must submit proof of language test results within 180 days of graduating to apply for a Post-Graduate Work Permit (PGWP).
- Many students are unable to upload language proficiency documents due to a lack of a designated field on the Immigration, Refugees and Citizenship Canada (IRCC) website portal.
- Inconsistent decisions by IRCC officers have resulted in different outcomes for students who submitted identical applications without language test results.
- The lack of internal guidelines for frontline immigration officers deciding PGWP applications raises questions about procedural fairness.
- The use of automation in the decision-making process has raised concerns about transparency, disclosure, and procedural fairness.
Introduction to the Issue
The process of applying for a Post-Graduate Work Permit (PGWP) in Canada has become increasingly complex and uncertain for international graduates. As of November 1, 2024, graduates are required to submit proof of language test results within 180 days of graduating. However, many students have encountered difficulties in uploading their language proficiency documents due to a lack of a designated field on the Immigration, Refugees and Citizenship Canada (IRCC) website portal. This has led to inconsistent decisions by IRCC officers, resulting in different outcomes for students who submitted identical applications without language test results.
Inconsistent Decisions by IRCC Officers
Four students who recently graduated from Canadian designated learning institutions have faced different outcomes despite submitting identical applications that omitted proof of language test results. Student A was able to upload their language test results after an IRCC officer requested them, and subsequently received their work permit. In contrast, students B and C had their applications rejected outright, with no opportunity to submit missing documents. The material differences between these cases remain unclear, raising questions about the application of procedural fairness. Student D submitted their language test results through the "Contact IRCC" section of the website but still had their application rejected, with the reason cited as failure to provide language results.
Procedural Fairness and Legitimate Expectation
The inconsistencies in the decision-making process raise concerns about procedural fairness, which is a legal principle that requires individuals affected by administrative decisions to have an opportunity to respond. The Supreme Court of Canada has reaffirmed that applicants may be entitled to submit omitted documents through the doctrine of legitimate expectation, if a public authority assures them of a procedure through a clear statement or consistent practice. In this case, the IRCC portal displays a statement that suggests applicants will be given the opportunity to submit additional information if their initial submission is incomplete. However, the rejected applicants were not afforded this opportunity, potentially constituting a breach of their legitimate expectations.
Uncertainty and Confusion
The rejected applicants face additional uncertainty about their options, with the 180-day window for submitting language test results having expired. Student B was instructed by IRCC to reapply for the PGWP and restoration of status, while student C was advised by an immigration lawyer that the new 180-day rule bars them from reapplying. The contradictory instructions create confusion about the correct procedures for graduates who have had their applications rejected. Furthermore, the use of automation in the decision-making process has raised concerns about transparency, disclosure, and procedural fairness, with some immigration practitioners arguing that non-disclosure of automation may compromise an applicant’s meaningful opportunity to respond and challenge decisions.
Concerns about Automation
The use of automation in the decision-making process has raised several concerns, including the lack of transparency and disclosure. Immigration lawyers Will Tao and Karina Juma have pointed to the lack of transparency, disclosure, and procedural fairness in automated decision-making systems. They argue that non-disclosure of automation in individual decision-making may compromise an applicant’s meaningful opportunity to respond and their ability to challenge decisions. The IRCC has stated that automation is used to streamline decision-making and reduce processing times, but questions remain about whether these automated tools have access to additional information submitted through IRCC web forms.
Conclusion
The cases of the four international graduates highlight the need for clarity and consistency in the application process for Post-Graduate Work Permits. The lack of internal guidelines for frontline immigration officers and the use of automation in the decision-making process have raised concerns about procedural fairness and transparency. The Canadian government should take steps to address these concerns and ensure that international graduates are able to navigate the application process with certainty and fairness. This includes providing clear guidelines for applicants and ensuring that automation is used in a way that is transparent and fair. Ultimately, the goal should be to create a system that is efficient, effective, and fair for all applicants.
