Date: 20100223
Docket: IMM-4542-09
Citation: 2010 FC 212
Vancouver, British
Columbia, February 23, 2010
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
KANCHAN
SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) of a decision of a Visa
Officer (the “Officer”) dated July 8, 2009, wherein the Officer rejected the
Applicant’s application for a two-year temporary work permit.
I. The Facts
[2]
The
Applicant, Mr. Kanchan SINGH, born in 1980, is a citizen of the Republic of India. He is married and has three
children.
[3]
On April
6, 2009, the Applicant made a first temporary work permit application that was
denied for the reason that he had not demonstrated that he had sufficient ties
to India, that he was sufficiently well established in his country and that he
would leave Canada after his authorized stay.
[4]
The Applicant
again applied for a two-year temporary work permit in June 2009. By letter
dated July 8, 2009, the Officer denied the application. Again, according to the
Officer, the Applicant had not demonstrated that he was sufficiently well
established in India or that his ties to India were sufficiently strong.
[5]
The
Applicant filed an application for leave and for judicial review with respect to
the July 8, 2009 Officer’s decision on September 11, 2009. Leave was
granted by Justice Heneghan on December 10, 2009.
II. Points in Issue
[6]
The
Applicant is raising the following questions:
a. Did the Visa Officer breach
the duty of procedural fairness by not providing any reasons for the denial and
by not advising the Applicant of his concerns before making the decision?
b. Was the decision of the Visa
Officer reasonable?
III. Analysis
A. Standard of Review
[7]
The
jurisprudence has demonstrated that a visa officer’s decision to deny a
temporary work permit application is reviewable under the standard of
reasonableness (see Choi v. Canada (Minister of Citizenship and Immigration), 2008 FC 577 at paras.
10-12). As stated by Justice DeMontigny in Baylon v. Canada (Minister of Citizenship and
Immigration),
2009 FC 938 at para. 24, “[a]ccordingly, the Court ought to
defer to a visa officer's decision if his or her findings are justified,
transparent and intelligible, and fall within the range of possible outcomes
given the evidence as a whole: Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47”. The decision of a visa officer is discretionary
and is therefore entitled to a high level of deference.
[8]
When there
is a question of procedural fairness, the standard of review is correctness
(see Barnash v. Canada (Minister of Citizenship and
Immigration)
2009 FC 842 at para. 21).
B. Procedural Fairness
[9]
The
Applicant raises two issues concerning procedural fairness. First, he states
that the Officer did not provide any reasons for her denial of the application.
Second, he argues that the Officer did not advise him of any concerns with his
application.
[10]
The
Applicant has received the Decision Letter dated July 8, 2009, as well as the
CAIPS notes of the Officer. Accordingly, these are sufficient reasons as they
give the Applicant the statutory criteria he has failed to meet as well as the
process by which the Officer made her decision (see Singh v. Canada
(Minister of Citizenship and Immigration) 2006 FC 315 at para. 24). The
Officer clearly states where the Applicant has failed to demonstrate his
intention to leave Canada once his temporary work
permit comes to term in his CAIPS notes. The notes also demonstrate that she
has taken into account documents that were sent with Mr. Singh’s application.
[11]
As for the
second argument of the Applicant, the burden of proof is on him and not on the
Officer to put all the relevant evidence forward for his case to be met. “The
onus is on the Applicant to file an application together with any relevant
supporting documentation. There is no duty for the visa officer to try to
bolster an incomplete application” (Tahir v. Canada (Minister of Citizenship
and Immigration), [1998] F.C.J. 1354). The Officer did not have the
obligation to advise the Applicant of the lack of documentation provided to
support his case.
[12]
The duty
of procedural fairness owed to the Applicant has not been breached by the Officer
in this present case.
C. Officer’s Decision is
Reasonable
[13]
The
Applicant argues that the Officer’s decision was unreasonable as she ignored
the evidence before her. As stated at paragraph 7 above, the standard of review
of the Officer’s decision is reasonableness. What is important to highlight in
cases where the reasonableness standard applies is that “there is more than one
reasonable outcome” (Canada (Citizenship and Immigration)
v. Khosa,
2009 SCC 12 at para. 59). A Court reviewing a decision on reasonableness is
“concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir
at para. 47). For the reasons stated below, we believe the Officer’s decision
was reasonable.
[14]
To apply
for a temporary work permit, the Applicant must establish that he meets all of
the requirements as set out in Part 11 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the “Regulations”). Section 200(1)(b)
states that:
|
Work permits
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;
|
Permis de travail
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;
|
[15]
After studying the
Applicant’s application for a temporary work permit, the Officer needed to
determine if the Applicant would leave Canada after his visa comes to term. In doing
so, she reviewed the new information provided. The Officer noted that the
Applicant had not provided any evidence of English abilities which would give
him an understanding of the job and knowledge of his rights as a temporary
worker in Canada. Furthermore, no documentation was submitted
as required to show his income in India. It was also noted that given the
socio-economic benefits in Canada and the fact he was married with three
sponsorable children, that there was little incentive to return to India at the end of the Canadian employment period. It was also
indicated that his documentation concerning his assets in India was not corroborated. Overall, the Officer was not
satisfied that the Applicant had demonstrated he had a high level of personal
establishment in India and that he had a genuine purpose to travel to Canada.
[16]
This is a reasonable
decision and the Court will not intervene.
[17]
Counsel was asked if
a certified question would be presented and they both said no.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1) This
application for judicial review is dismissed; and
2) No
question will be certified.
“Simon
Nöel”
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