Docket: IMM-2346-11
Citation: 2012 FC 484
Ottawa, Ontario, April
25, 2012
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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NEWN SHIN LI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP &
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of an officer at the New Delhi Immigration Section of the Canadian
High Commission (the officer), dated January 27, 2011, wherein the applicant’s
request for a work permit was denied. This conclusion was based on the officer’s
finding that the applicant did not meet the necessary language and work
experience requirements.
[2]
The applicant requests that the officer’s
decision be quashed and the matter sent back for redetermination by a different
officer.
Background
[3]
The
applicant is of Chinese ancestry and is a citizen of India. He is married and has
three dependants. He lives with his family in India.
[4]
On
December 3, 2010, the applicant submitted an application for a Canadian work
permit as a cook of Indian-style Hakka Chinese food.
[5]
The
application included a positive Labour Market Opinion (LMO) issued on October 27,
2010 to the Royal Chinese Seafood Restaurant, the applicant’s proposed employer
in Scarborough,
Ontario. The letter in which
the LMO was issued included a confirmation by Service Canada of the Royal
Chinese Seafood Restaurant’s offer of employment to the applicant (the LMO-approved
employment offer).
[6]
The
LMO specified that the job required the applicant to have oral and written
English. The LMO-approved employment offer stated that the position was for a
cook specializing in Indian / Cantonese Chinese Cuisine (Hakka food).
[7]
The
Citizenship and Immigration Canada (CIC) document checklist for a work permit
requires that applicants include “proof indicating you meet the requirements of
the job being offered”. To fulfill this requirement, the applicant included the
following documentation in his application:
Language:
School certificates from 1989 and 1991 showing passing grades in English; and
Work
experience: Letters of recommendation and recent salary slips from Golden
Empire Restaurant and Bar in India.
The letters indicated that the applicant was employed as head chef at the
restaurant for over seven years on a full time basis and described the
applicant as a “chef for all seasons” who is “particularly good in Asian foods
preparations”.
Officer’s Decision
[8]
In a
letter dated January 27, 2011, the officer denied the applicant’s request for a
work permit (the decision). The decision was based on the officer’s finding
that the applicant did not meet the language and work experience requirements
specified in the LMO.
[9]
In
the Global Case Management System (GCMS) notes that form part of the decision,
the officer acknowledged that the applicant had provided banking documents, pay
slips, an income tax form and school records. However, the officer found that
the applicant had not provided proof that he met the English requirements
specified in the LMO or the requirements of work experience in Indian-style
Hakka Chinese food. The officer also found that the letter from the applicant’s
employer did not state the applicant’s qualifications. The officer therefore
refused the applicant’s application.
Issues
[10]
The
applicant submits the following point at issue:
Error of Law: Did the respondent err
in failing to provide the applicant an opportunity to disabuse the officer’s
concerns?
[11]
I
would rephrase the issues as follows:
1. What is the appropriate
standard of review?
2. Did the officer deny the
applicant procedural fairness?
3. Did the officer err in
denying the applicant’s application?
Applicant’s Written Submissions
[12]
The
applicant submits that he was never given an opportunity to respond to the officer’s
concerns regarding the language and work experience requirements and that this
was a clear breach of procedural fairness. As this is fundamentally a question
of law, natural justice and procedural fairness, it attracts a standard of
review of correctness.
[13]
Nevertheless,
the applicant submits that he did provide school documents as evidence of his
ability to meet the English requirement. As such, unless the credibility of the
documents was at issue, there was no reason for the respondent not to believe
that the applicant met the English requirement. The applicant submits that the
officer’s decision on this point was therefore completely unsupported.
[14]
Similarly,
the applicant submits that he did provide clear evidence of his experience as a
Chinese food chef. Although the letters did not specify that it was Hakka
Chinese food, a quick inquiry would have clarified this issue. The applicant
refers to case law in which it submits the Court has held that an officer’s
failure to make simple inquiries was remarkably unfair. The applicant submits
that in this case the officer’s decision on this point was willfully blind.
Respondent’s Written Submissions
[15]
The
respondent submits that the applicant has not demonstrated an arguable case upon
which the application for judicial review may proceed.
[16]
The
respondent submits that an officer’s decision on a work permit application is
reviewable on a reasonableness standard. As this type of decision is highly
fact-based and discretionary and involves interpretation by the officer of its
own statutes and policies, deference is warranted.
[17]
The
respondent submits that the duty of procedural fairness applicable to these
types of decisions varies according to context. As there is no evidence that
reapplying with improved information and documentation will cause the applicant
hardship, the respondent submits that the procedural fairness required is
relatively low.
[18]
The
respondent also submits that the question of whether the officer should have
provided the applicant an opportunity to respond to concerns should be assessed
on a standard of correctness. However, in this case, the procedural fairness
does not require an officer assessing a work permit to inform the applicant of
concerns regarding inadequacies in the application or to request additional
information. In addition, an applicant is not entitled to an interview to
correct deficiencies in the application. The burden of establishing the merits
of the application rests on the applicant.
[19]
The
respondent submits that this case does not fall into one of the exceptions
where an officer may be required to provide an applicant with the opportunity
to respond to its concerns. Rather, the officer’s decision shows that the officer
assessed the letter from the applicant’s employer and the applicant’s
submission on his English language ability and found that these failed to
substantiate his work experience and language ability. It was within the officer’s
purview to reject the application on these bases.
[20]
The
respondent also submits that the officer’s decision was reasonable. In support,
the respondent refers to paragraph 200(3)(a) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations), which the
respondent submits prevents an officer from issuing a work permit if there are
reasonable grounds to believe that the foreign national is unable to perform
the work sought. The respondent submits that the applicant must establish that
there are no reasonable grounds to believe that he will be unable to perform
the work.
[21]
As
the reference letters from the applicant’s employer, Golden Empire Restaurant
and Bar, do not clearly substantiate that he has experience specifically in
Indian-style Hakka Chinese food, the respondent submits that it was reasonable
for the officer to find that the applicant had submitted insufficient evidence
of his work experience as a cook with that speciality. Similarly, the
respondent submits that as there was no evidence specifically addressing the
applicant’s English abilities, it was reasonable for the officer to find
insufficient proof that the applicant met the English requirements specified in
the LMO.
[22]
For
these reasons, the respondent submits that the officer’s decision was
reasonable.
Analysis and Decision
Distinguishing Permits: Skilled Worker Class
versus Worker
[23]
This
case pertains to an application for a work permit under Part 11 (Workers) of
the Regulations (workers work permit). The associated regulatory regime differs
in some significant ways from the skilled worker applications regulated under
Division 1 of Part 6 (Economic Class – Skilled Workers) of the Regulations (skilled
worker class permit).
[24]
Most
notably, persons in the skilled worker class may seek permanent residency in
Canada (subsection 75(1) of the Regulations) whereas workers work permits only
grant holders a temporary stay in Canada until the end date indicated on their permits.
As the skilled worker class grants greater access to Canadian residency,
specific selection criteria are outlined in the Regulations (sections 76 through
83). For example, points are specified for different levels of education (i.e.,
secondary, post-secondary, university, etc.). Conversely, the statutory provisions
for worker work permits are more general, with few details on actual
application requirements.
[25]
Provisions
under Division 1 of Part 6 (Economic Class – Skilled Workers) have also had
greater judicial treatment than those under Part 11 (Workers) of the
Regulations. As such, jurisprudence on workers work permit applications has
drawn from the case law on skilled worker class permit applications (see Singh
v Canada (Minister of Citizenship and Immigration), 2010 FC 1306, [2010]
FCJ No 1663; and Randhawa v Canada (Minister of Citizenship and Immigration),
2006 FC 1294, [2006] FCJ No 1614 at paragraph 12). However, as the two
processes and associated rights differ, some care must be taken in applying the
jurisprudence of one to the other. In the following analysis, I have therefore
noted where cases pertain to skilled worker class permits as opposed to workers
work permits.
[26]
Issue
1
What is the appropriate standard
of review?
Where previous jurisprudence has determined
the standard of review applicable to a particular issue before the court, the
reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at paragraph 57).
[27]
Determinations
by officers on work permit applications are administrative decisions made within
their legislative authority. These fact-based decisions should be granted a
high degree of deference and are therefore reviewable on a reasonableness
standard (see Samuel v Canada (Minister of Citizenship and Immigration),
2010 FC 223, [2010] FCJ No 256 at paragraph 26; Randhawa above, at
paragraph 10; and skilled worker class jurisprudence: Castro v Canada
(Minister of Citizenship and Immigration), 2005 FC 659, [2005] FCJ No 811
at paragraph 6; and Akbar v Canada (Minister of Citizenship and Immigration),
2008 FC 1362, [2008] FCJ No. 1765 at paragraph 11).
[28]
In
reviewing the officer’s decision on the standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] SCJ No 12 at paragraph 59). As the Supreme Court held in Khosa above,
it is not up to a reviewing court to substitute its own view of a preferable
outcome, nor is it the function of the reviewing court to reweigh the evidence
(at paragraphs 59 and 61).
[29]
Conversely,
issues that go to the fairness of an impugned decision must be decided on a
standard of correctness (see Suresh v Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at paragraph 115;
and Campbell Hara v Canada (Minister of Citizenship and Immigration), 2009 FC 263, [2009]
FCJ No 371 at paragraph 15).
[30]
In
this case, the applicant submits that he was not granted an opportunity to
respond to the officer’s concerns. A denial of the opportunity to respond to an
officer’s concerns is a procedural fairness issue that is reviewable on a
standard of correctness (see Hara above, at paragraph 16). No deference
is owed to the decision maker and the Court must form its own opinion on this
issue (see Dunsmuir above, at paragraph 50).
[31]
Issue
2
Did the officer deny the
applicant procedural fairness?
In immigration applications, the
onus is on the applicant to satisfy the officer of all parts of the
application. As such, it is generally not a procedural fairness requirement
that work permit applicants be granted an opportunity to respond to the
concerns of officers. This is particularly true where there is no evidence of
serious consequences to the applicant (see Qin v Canada (Minister of
Citizenship and Immigration), 2002 FCT 815, [2002] FCJ No 1098 at paragraph
5). A lack of serious consequences has been found in situations where
applicants are able to re-apply for workers work permits and there is no
evidence that doing so will cause them hardship (see Masych v Canada (Minister of
Citizenship and Immigration), 2010 FC 1253, [2010] FCJ No 1563 at paragraph
30).
[32]
However,
there are exceptions to this rule and, in certain circumstances, the duty to
grant applicants an opportunity to respond is warranted. For example, if an
officer uses extrinsic evidence to form an opinion or forms a subjective
opinion that an applicant could not have known would be used in an adverse way,
the officer may be under a duty to grant the applicant an opportunity to
respond (see Li v Canada (Minister of Citizenship and Immigration), 2008
FC 1284, [2008] FCJ No 1625 at paragraph 36; and Hara above, at
paragraph 23).
[33]
In
jurisprudence on applications for skilled worker class permits it has also been
held that if the officer has concerns about the veracity of documents,
procedural fairness demands that the officer make further inquires (see Kojuri
v Canada (Minister of Citizenship and Immigration), 2003 FC 1389, [2003]
FCJ No 1779 at paragraphs 18 and 19; and Olorunshola v Canada (Minister of
Citizenship and Immigration), 2007 FC 1056, [2007] FCJ No 1383 at
paragraphs 29 and 33).
[34]
However,
an officer is generally not under a duty to inform a skilled worker class
permit applicant about his concerns when they arise directly from the
requirements of the legislation or regulations (see Hassani v Canada
(Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 FCR 501
at paragraphs 23 and 24; and Gulati v Canada (Minister of Citizenship and
Immigration), 2010 FC 451, [2010] FCJ No 771 at paragraph 43).
[35]
These
findings in cases on skilled worker class permits have been approvingly
referred to in jurisprudence on workers work permit applications (see Singh
above, at paragraphs 40 to 42).
[36]
In
this case, there is no evidence that re-application would cause serious
consequences to the applicant. Similarly, there is no indication that the officer
had concerns about the veracity of the documents, relied on extrinsic evidence
to form his opinion, or formed a subjective opinion that the applicant could
not have known would be used in an adverse way.
[37]
Nevertheless,
relying on skilled worker class permit jurisprudence, it should be determined
whether the officer’s concerns arose directly from the requirements of the
legislation or regulations. If they did not, it is more likely that the
procedural fairness required might include an opportunity for the applicant to
respond to the officer’s concerns in specific circumstances.
[38]
As
mentioned above, the statutory provisions describing the requirements for
workers work permit applications are less specific than those for skilled
worker permits. Part 11 of the Regulations only describe minimal requirements
for worker work permit applications. Subsection 200(1) of the Regulations
states that an officer shall issue a workers work permit to a foreign national
if, following an examination, the officer is satisfied that the applicant meets
all of the requirements of that section.
[39]
In
this case, the applicant applied from outside Canada and had an offer of employment that had
been approved in a valid LMO (the LMO-approved employment offer). Subsection
200(1) therefore only required that it be established that the applicant would
leave Canada by the end of the
period authorized for his stay. No evidence was presented on this issue and the
officer’s decision does not suggest that this was a concern that led to the
denial of the application.
[40]
There
is little other statutory guidance to inform a workers work permit applicant of
the specific application requirements.
[41]
Nevertheless,
subsection 200(1) of the Regulations must be read in conjunction with
subsection 200(3), which lists various exceptions for which an officer shall
not issue a workers work permit. An applicant has the onus to establish that
there are no reasonable grounds to believe that he or she will be unable to
perform the work sought (see Samuel above, at paragraph 30). The only
exception relevant to this case is paragraph 200(3)(a), which prohibits an
officer from issuing a workers work permit if “there are reasonable grounds to
believe that the foreign national is unable to perform the work sought”.
[42]
In
this case, the officer found that:
Subject
has not provided proof that he meets the requirement of English according to
the LMO or that he meets with the work experience in Indian style Hakka Chinese
food. Letter from employer does not state subject’s qualifications.
[43]
However,
in his application, the applicant submitted school records showing passing
grades in English in support of the language requirement. Nevertheless, the officer
found that the applicant had not provided proof that he met the English
requirements “according to the LMO”. The LMO merely stated that the job
requires written and oral English. Further, as mentioned above, unlike the
skilled worker class, there are no levels of education specified in the
Regulations for worker work permits. Although the applicant’s English grades
were not high, there was no evidence on which to find them inadequate for the
requirements specified in the LMO. In addition, there is nothing in either the
statutory provisions or the CIC policies to suggest that school records would
be inadequate to establish the applicant’s proficiency in English.
[44]
In
his application, the applicant also included letters of reference and pay slips
in support of his work experience. As noted by the officer, the reference
letters do not clearly specify Hakka cuisine. They do, however, speak highly of
the applicant as a cook with many years experience and particular skills in
Asian foods preparation. In addition, they are from the Golden Empire
Restaurant and Bar. Therefore, if there was any confusion on the type of
restaurant that the applicant’s previous employer in India was, it could easily
have been uncovered that it was likely a Chinese food restaurant. This is
further supported by the fact that the applicant holds Indian citizenship but
is of Chinese ancestry (as indicated in his work permit application).
[45]
The officer
also stated that the applicant had failed to establish his work experience in
Indian-style Hakka Chinese food. However, the LMO-approved employment offer
clearly states that the duties of the position are for a cook specializing in
“Indian/Cantonese Chinese Cuisine (Hakka food)”.
[46]
The
evidence from the applicant’s previous employer, his cultural heritage and his
nationality renders it difficult to find the reasonable grounds on which the officer
could find the applicant unable to perform the work sought.
[47]
A comparison of the
employment duties listed in the LMO-approved employment offer and the
applicant’s responsibilities and skills stated in the reference letters from
his Indian employer also shows significant similarities:
1. Duties
listed in LMO-approved employment offer:
Specialization
in Indian/Cantonese Chinese Cuisine (Hakka food); preparing the main sauces and
marinades for meat and poultry; cooking, garnishing and presentation of food;
preparing and cooking individual dishes and foods; ensuring quality of food;
and determining size of food proportions.
2. Reference
letter from Golden Empire Restaurant and Bar (India):
Chef
for all seasons, and particularly good in Asian foods preparations; training
second cooks and junior kitchen staff; taking care of the discipline and
neatness of kitchen staff; checking the presentation of food before it is
served to the customers; and speaking with customers for food inquiries.
[48]
This
evidence also contradicts the officer’s finding that the reference letters did
not state the applicant’s qualifications.
[49]
In
summary, the evidence before the officer, coupled with the limited guidance
provided in the statutory provisions relating to workers work permit
applications, renders this a situation in which procedural fairness demands
that the officer give the applicant an opportunity to respond to his concerns.
Although there is generally no obligation on an officer to make further
inquiries when an application is ambiguous, this is an instance where the facts
favour an exception to the rule. Therefore, in this case, the officer’s failure
to grant the applicant the opportunity to respond to his concerns results in a
denial of procedural fairness to the applicant.
[50]
Because
of my finding on Issue 2, I need not deal with the remaining issue.
[51]
As a
result of the breach of procedural fairness, the officer’s decision must be set
aside and the matter referred to a different officer for redetermination.
[52]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is allowed, the decision of the officer is set aside and the matter is
referred to a different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1)
Judicial review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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Immigration and Refugee Protection Regulations, SOR/2002-227
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75. (1) For
the purposes of subsection 12(2) of the Act, the federal skilled worker class
is hereby prescribed as a class of persons who are skilled workers and who
may become permanent residents on the basis of their ability to become
economically established in Canada and who intend to reside in a province
other than the Province of Quebec.
200. (1) Subject
to subsections (2) and (3) — and, in respect of a foreign national who makes
an application for a work permit before entering Canada, subject to section
87.3 of the Act — an officer shall issue a work permit to a foreign national
if, following an examination, it is established that
(a) the
foreign national applied for it in accordance with Division 2;
(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
(i) is
described in section 206, 207 or 208,
(ii) intends
to perform work described in section 204 or 205 but does not have an offer of
employment to perform that work,
(ii.1) intends
to perform work described in section 204 or 205, has an offer of employment
to perform that work and an officer has determined
(A) that
the offer is genuine under subsection (5), and
(B) that
during the two-year period preceding the day on which the application for the
work permit is received by the Department,
(I) the
employer making the offer provided each foreign national employed by the
employer with wages, working conditions and employment in an occupation that
were substantially the same as the wages, working conditions and occupation
set out in the employer’s offer of employment to the foreign national, or
(II) in
the case where the employer did not provide wages, working conditions or
employment in an occupation that were substantially the same as those
offered, the failure to do so was justified in accordance with subsection
203(1.1), or
(iii) has
been offered employment, and an officer has made a positive determination
under paragraphs 203(1)(a) to (e); and
(d) [Repealed,
SOR/2004-167, s. 56]
(e) the
requirements of section 30 are met.
. . .
200.(3) An
officer shall not issue a work permit to a foreign national if
(a) there are
reasonable grounds to believe that the foreign national is unable to perform
the work sought;
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75. (1) Pour
l’application du paragraphe 12(2) de la Loi, la catégorie des travailleurs
qualifiés (fédéral) est une catégorie réglementaire de personnes qui peuvent
devenir résidents permanents du fait de leur capacité à réussir leur
établissement économique au Canada, qui sont des travailleurs qualifiés et
qui cherchent à s’établir dans une province autre que le Québec.
200. (1) Sous
réserve des paragraphes (2) et (3), et de l’article 87.3 de la Loi dans le
cas de l’étranger qui fait la demande préalablement à son entrée au Canada,
l’agent délivre un permis de travail à l’étranger si, à l’issue d’un
contrôle, les éléments ci-après sont établis :
a) l’étranger
a demandé un permis de travail conformément à la section 2;
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 :
(i) il
est visé par les articles 206, 207 ou 208,
(ii) il
entend exercer un travail visé aux articles 204 ou 205 pour lequel aucune
offre d’emploi ne lui a été présentée,
(ii.1) il
entend exercer un travail visé aux articles 204 ou 205, il a reçu une offre
d’emploi pour un tel travail et l’agent a conclu que :
(A) l’offre
était authentique conformément au paragraphe (5),
(B) au
cours des deux années précédant la date de la réception de la demande de
permis de travail par le ministère :
(I)
l’employeur a versé à tout étranger à son emploi un salaire ou lui a ménagé
des conditions de travail qui étaient essentiellement les mêmes que ceux
qu’il lui avait offerts ou lui a confié un emploi qui était essentiellement
le même que celui précisé dans son offre d’emploi,
(II) l’employeur
qui a versé à tout étranger un salaire ou lui a ménagé des conditions de
travail qui n’étaient pas essentiellement les mêmes que ceux qu’il lui avait
offerts, ou qui lui a confié un emploi qui n’était pas essentiellement le
même que celui précisé dans son offre d’emploi, peut justifier ce manquement
conformément au paragraphe 203(1.1);
(iii) il
a reçu une offre d’emploi et l’agent a rendu une décision positive
conformément aux alinéas 203(1)a) à e);
d) [Abrogé,
DORS/2004-167, art. 56]
e) il
satisfait aux exigences prévues à l’article 30.
. .
.
200.(3) Le
permis de travail ne peut être délivré à l’étranger dans les cas
suivants :
a) l’agent
a des motifs raisonnables de croire que l’étranger est incapable d’exercer
l’emploi pour lequel le permis de travail
est demandé;
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