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“Dual Intent” Applications

We receive a lot of calls from people seeking advice regarding their Canadian immigration matter. One of the most common enquiries that people have is whether they apply for both Canadian permanent residency and a Canadian temporary resident visa, simultaneously. This prompted us to write about this issue.

Generally, people are of the view that they “cannot” apply for the two applications at once. This belief is usually grounded upon ill-informed legal advice or hearsay. Instead, the correct answer is “Yes,” you can apply both together. However, there are some caveats.

So, what is the rule?

The keyword in an immigration matter is “Intention”. Submitting both permanent and temporary resident application is known as “Dual Intent”. Section 22(2) of the Immigration Act, states that:

“An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.”

It is legal for the applicant to have a dual intent, i.e., one for permanent residency and one for temporary residency. Therefore, having two intents per se is not a ground for refusal. The visa officers are required to assess applications on a case by case basis and consider all the contextual factors. In distinguishing between a bona fide temporary resident applicant and a temporary resident applicant who has no intention of leaving Canada in case his/her permanent residency application is declined- the visa officers take following factors into consideration:

  • The length of time that the client will be spending in Canada
  • Means of support
  • Obligations and ties to the home country
  • The purpose and the context of the stay
  • The credibility of documents and information submitted
  • Past compliance with requirements of the IRPA and the Immigration and Refugee Protection Regulations (IRPR) that are applicable to temporary residents (visitors, students and workers), as well as information available in biographic and biometric information sharing

It is incumbent on the applicant to indicate that his two intents are detached and distinct- something more than distinguishable. It implies the applicant has to demonstrate that he would abide by the terms and conditions of both the applications, independent of each other. An approval for permanent residency will not exempt the applicant from fulfilling his temporary visa requirements.

While applying, we recommend to be as explicit as possible in stating the purpose of the temporary residency. A temporary resident is expected to leave Canada once their visa expires. An applicant for a work or study permit who indicates that they have no intention of leaving Canada has demonstrated only a single intent – permanent residence. Their application would be refused, even if the applicant might subsequently qualify for the Canadian experience class (CEC) or the Provincial Nominee Program (PNP). This is because the applicant has shown that they would not respect the terms and conditions of temporary residence, should they not qualify for permanent residence.

In the case of Musadiq v. Canada, the applicant applied for a student visa to pursue the Art Transition program at the University of Regina. The applicant indicated that this course would help him to enter the Petroleum Systems Engineering Program and get a job in the Middle East. The applicant detailed his study plan and his intent to leave Canada on completion of his education.

However, the application was denied as the visa officer was not convinced of the applicant’s underlying motivation for the course. The visa officer was also not convinced that the applicant would leave Canada on graduating from the program. The application for judicial review was dismissed as the applicant failed to show that the visa officer’s decision was not justified in “light of the facts” or “neglected the “central issue”. The Federal Court refused to intervene on the ground that the deference given to visa officers in the context of temporary visas is very high, which prevents it from simply reweighing the evidence.

It is essential to understand the rules so that one can make an informed decision. Immigration matters are crucial and should not be taken lightly. One blemish can jeopardize the whole application.

Therefore, don’t jump- first consult Aitken Robertson. Our combined years of experience allow us to make sure that you receive the optimal legal advice.

 

 

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