Date:
20130215
Docket:
IMM-2872-12
Citation:
2013 FC 162
Ottawa, Ontario,
this 15th day of February 2013
Present: The
Honourable Mr. Justice Roy
BETWEEN:
JASPREET SINGH MOMI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
Preliminary
issue
[1]
The
respondent, at the outset of the hearing, and without notice to the applicant,
made the argument that this matter is moot in view of the fact that the
labour market opinion issued in this case has expired.
[2]
Applicant’s
counsel, in very short submissions, referred the Court to the case of Obeng
v Canada (Minister of Citizenship and Immigration), 2008 FC 754, where
Justice Lagacé ruled that there was no live controversy between the parties as
the applicant’s invitation to come to Canada had expired. Nevertheless, the
Court exercised its discretion and decided on the issues.
[3]
It
is not contested by the parties that there is discretion in the Court hearing
the matter and deciding the issues in spite of the mootness of the case. Borowski
v Canada (Attorney General), [1989] 1 S.C.R. 342 provides the applicable
framework. Justice Sopinka, for the Court, put it plainly at page 353:
… The general policy or practice is enforced in moot
cases unless the court exercises its discretion to depart from its policy or
practice.
[4]
But
first, the respondent must establish that the case is moot, that a tangible and
concrete dispute has disappeared. I was not convinced at the hearing that such
was the case. Furthermore, counsel for the respondent did not press the issue,
suggesting that he was raising it as “an officer of the Court”.
[5]
My
reluctance to readily conclude to mootness found its expression in this short
dictum of Warren C.J., of the United States Supreme Court in Sibron v. New York, 392 US 40 (1968) at page 55, an appeal of a conviction heard after the
sentence had been already completed:
… most criminal convictions do in fact entail
adverse collateral legal consequences. The mere “possibility” that this will be
the case is enough to preserve a criminal case from ending “ignominiously in
the limbo of mootness”.
Given the narrow issue that is
before the Court, it is not clear that there is not a concrete dispute as substratum.
[6]
Be
that as it may, assuming that the mootness doctrine could find application in
this case, I would exercise discretion and decide the contentious issue between
the parties. The matter was fully argued by the parties. The need to promote
judicial economy is not really present.
[7]
The
third factor considered by the Supreme Court in Borowski, above, was
“the need for the Court to demonstrate a measure of awareness of its proper
law-making function” (page 362). The Court goes on to say that “[o]ne element
of this third factor is the need to demonstrate some sensitivity to the
effectiveness or efficacy of judicial intervention” (page 365). In the
circumstances of this case, that sensitivity militates in favour of exercising
discretion, if there is a need to do so. It would be unfair to an applicant if
the mere passage of time following a negative decision in an immigration matter
could easily negate access to the courts. If, as alleged by respondent’s
counsel, the labour market opinion has expired, I suspect that situation can be
remedied at the new hearing. In view of the decision I have reached, my Reasons
for Judgment may provide some guidance as the matter will have to be
re-assessed.
The issue
[8]
This
is an application for judicial review made pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27, (the “Act”) of the decision of a
Citizenship and Immigration Canada visa officer (the “officer”) to refuse the
temporary work visa sought by the applicant, Mr. Jaspreet Singh Momi (the
“applicant”).
Facts
[9]
The
applicant is a citizen of India who lived, studied and obtained a Bachelor
of Science in India. It appears from the record that the applicant worked in India until 2009.
[10]
From
June 2009 to October 2011, the applicant attended school in Australia where he obtained a “Diploma of Hospitality” and a “Certificate in Commercial
Cookery”. In view of the unavailability in Australia of a permanent residence
program for overseas students, which had been discontinued, the applicant
sought a Canadian work permit. Such permit was denied by the officer in a
decision dated March 2, 2012 which was communicated to the applicant on
March 12.
[11]
The
reason given for the denial of the work permit reads as follows:
… Based on documentation/information provided in
this application I am not satisfied pa would leave Cda at end of authorized
stay. […] At the time of applying for the Australian student visa, this course
of study would have allowed him the future to apply for Australian PR under the
well documented Australian PR immigration program for overseas students. That
option is no longer available to pa as the PR program has been stopped.
[12]
The
applicant raises two issues:
1. Did
the officer err in refusing the applicant’s application for a work permit?
2. Did
the officer breach procedural fairness in failing to interview the applicant?
The impugned
decision
[13]
As
already stated, the officer concluded that the foreign national, the applicant
in this case, would not leave Canada by the end of the period authorized for
his stay. The reason given is limited to “[o]nce in Cda there would be little
motivation to leave at the end of authorized stay or if a further CDN PR
application was unsuccessful.” There does not seem to have any other issue
before the officer, including whether there was a labour market opinion that
was satisfactory or that the applicant would have employment in this country.
Standard of
review
[14]
The
case law is well established to the effect that, in light of their
discretionary nature, the decisions of visa officers regarding temporary work
permits are reviewable according to a standard of reasonableness (Dunsmuir v
New Brunswick, [2008] 1 S.C.R. 190; Baylon v Canada (Minister of
Citizenship and Immigration), 2009 FC 938; Dhillon v Canada (Minister of
Citizenship and Immigration), 2009 FC 614). It follows that the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and is within the range of acceptable
outcomes based on the evidence before it. It is not up to a reviewing Court to
substitute its own view of a preferable outcome; the reviewing Court is not
sitting de novo.
Position of the
parties
[15]
The
applicant submits that the officer’s decision was unreasonable because it was
based on generalizations. He claims that the officer appears to have satisfied
himself that the mere fact that the applicant has remained outside of his own
country for a period of time would suggest that he automatically does not want
to return there. That is in the view of the applicant an unreasonable
inference. Indeed, the applicant abides by the laws of Australia, which should be a strong indication that he will follow Canadian law and leave
once the work permit has expired. The applicant also argues that the officer
seems to have failed to consider the applicant’s strong ties to India and his lack of existing ties in Canada. Furthermore, the applicant submits that he was denied
procedural fairness because the officer did not provide him with an opportunity
to address his credibility concerns. He claims that an interview was warranted.
[16]
The
respondent submits that the applicant did not satisfy his burden of showing
that he will leave Canada at the end of an authorized period. The respondent
argues that the officer relied on the applicant’s specific situation, noting
the fact that the applicant had been residing outside of his own country since
2009. Furthermore, the respondent draws a negative inference from the fact that
the applicant would have obtained in Canada a position that is permanent, as
both the job ads and the offer letter say so. Finally, as for the applicant’s
compliance with Australian immigration laws, the respondent submits that it is
irrelevant because the applicant never had the opportunity to overstay his
welcome in Australia.
Analysis
[17]
Foreign
nationals seeking to enter Canada must establish that they meet the
requirements of the Act. Paragraph 20(1)(b) of the Act sets out the
obligation to be fulfilled for a foreign national who wishes to enter Canada. It reads:
|
20. (1) Every foreign national,
other than a foreign national referred to in section 19, who seeks to enter
or remain in Canada must establish,
(b)
to become a temporary resident, that they hold the visa or other document
required under the regulations and will leave Canada by the end of the period
authorized for their stay.
|
20. (1) L’étranger
non visé à l’article 19 qui cherche à entrer au Canada ou à y séjourner est
tenu de prouver :
b) pour devenir un
résident temporaire, qu’il détient les visa ou autres documents requis par
règlement et aura quitté le Canada à la fin de la période de séjour
autorisée.
|
[18]
It
is section 200 of the Immigration and Refugee Protection Regulations,
SOR/2002-227, (the “Regulations”) which would apply in this case. The
appropriate paragraphs read as follow:
|
200.
(1) Subject to
subsections (2) and (3), an officer shall issue a work permit to a foreign
national if, following an examination, it is established that
[…]
(b)
the foreign national will leave Canada by the end of the period authorized
for their stay under Division 2 of Part 9;
(c)
the foreign national
[...]
(iii)
has been
offered employment and an officer has determined under section 203 that the
offer is genuine and that the employment is likely to result in a neutral or
positive effect on the labour market in Canada;
|
200. (1) Sous réserve
des paragraphes (2) et (3), l’agent délivre un permis de travail à l’étranger
si, à l’issue d’un contrôle, les éléments suivants sont établis :
[…]
b) il quittera le Canada
à la fin de la période de séjour qui lui est applicable au titre de la
section 2 de la partie 9;
c) il se trouve dans
l’une des situations suivantes :
[…]
(iii)
il
s’est vu présenter une offre d’emploi et l’agent a, en application de
l’article 203, conclu que cette offre est authentique et que l’exécution du
travail par l’étranger est susceptible d’avoir des effets économiques
positifs ou neutres sur le marché du travail canadien;
|
[19]
I
do not believe that it is necessary to determine whether the officer relied on
generalizations or not. In my view, the considerations relied upon by the
officer are irrelevant or neutral, or even worse, draw an inference that is not
reasonable given the state of the record.
[20]
The
fact that the applicant seeks to obtain the appropriate visa from Canada because his immigration situation in Australia will become precarious would in my view
militate in favour of considering the applicant as law abiding. As this Court
has held in the past, previous immigration encounters are good indicators of an
applicant’s likelihood of future compliance (see Calaunan v Canada (Minister of Citizenship and Immigration), 2011 FC 1494 at para 28 and Murai v Canada (Minister of Citizenship and Immigration), 2006 FC 186). That, in turn, suggests
compliance with applicable laws. While the applicant’s compliance with
Australian immigration rules is not evidence directly related to the matter of
complying with periods of authorization in Canada, it does indicate in my
estimation that the applicant has respected immigration policy in the past, and
there is no further evidence to the contrary.
[21]
I
find it difficult to understand how the fact that the applicant appears to have
stayed in Australia since 2009 is sufficient to conclude that if he were
awarded a temporary work permit, he would not return to India at its expiration. At best, not wishing to return to India following a stint in Australia by seeking to obtain a temporary work visa in Canada should be considered as neutral as to
whether or not the applicant “will leave Canada by the end of the period
authorized for their stay”. Similarly, having a “permanent job” in Canada does not allow for an inference that the applicant will break the law and remain in
this country past the expiry of the work permit. There is no evidence on the
record that the applicant would have ties in Canada such that he would be
tempted to stay for that reason alone. We should guard against connecting
temporary residence and becoming a permanent resident (section 22 of the Act).
[22]
Conversely
his ties with India remain as his family is there.
[23]
In
this case, the officer relied on his belief that the applicant will not leave Canada by the end of the period he would be authorized to stay. However, the articulation
of the reasons for such a belief is not transparent, justifiable and
intelligible. From the record before the Court, they appear to be speculations,
without adequate consideration given to countervailing factors. As such, and
without a further articulation, they appear to be arbitrary. They do not meet
the basic standard of reasonableness articulated in Dunsmuir v New Brunswick
, [2008] 1 S.C.R. 190, and they are not saved by the following decision of the
Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v.
Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708.
[24]
I
am struck by the following passage taken from the decision of Justice
Mainville, then of this Court, in Gu v Canada (Minister of Citizenship and
Immigration), 2010 FC 522:
[21] Second, the other
fact which the officer draws upon to conclude that the applicant will not leave
Canada at the end of the study period is her continued presence in Canada since March 2002 with either work or study permits. This is unreasonable. A foreign
national who has remained in Canada under validly issued work or study permits
should not be penalized for having followed the immigration legislation of this
country. The simple fact the applicant has legally remained in Canada cannot reasonably support a conclusion that she would choose to go “underground” or try to
stay in Canada without authorization once her study permit expires.
[25]
I
would apply the same reasoning, mutatis mutandis, to the case at bar. It
is in my view unreasonable to deny a temporary visa for the sole reason that
the applicant has not gone back to India. Indeed the applicant appears to have
followed the law in Australia and attempts to follow the law of this country by
making a proper application.
[26]
As
a result, although the decisions of visa officers are entitled to a high degree
of deference, this Court’s intervention is warranted where a conclusion is not
transparent, justifiable or intelligible. In the case at bar, I find that it is
not possible to reconcile the decision made with reasons that would lead in the
direction of that conclusion. As such, the decision is not reasonable.
[27]
I
would allow the application. The matter is remitted for re-determination of the
applicant’s temporary work visa by a different officer.
[28]
The
parties did not seek to have a question certified pursuant to section 74 of the
Act, and none arose.
JUDGMENT
The application for
judicial review is allowed. The decision of a Citizenship and Immigration
Canada visa officer dated March 2, 2012 refusing the applicant’s
application for a temporary work visa is quashed and the matter is remitted for
re-determination by a different visa officer.
“Yvan Roy”
Email this Content