Docket: IMM-4293-11
Citation: 2012 FC 360
Ottawa, Ontario, March 28, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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RANJIT SINGH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks judicial review of the decision of a visa officer (the Officer)
at the High Commission of Canada in New Delhi, India refusing his
application for a temporary work permit as a skilled worker. The decision was
rendered on May 18, 2011. For the reasons that follow, the application is
dismissed.
Facts
[2]
The
applicant seeks to work full-time as a kitchen helper at the Hotel North in
Goose Bay, Labrador.
He submitted a letter from his potential employer and a positive labour market
opinion. The applicant also provided:
a. A supporting
letter from his former employer in the Indian army indicating that the
applicant had sufficient knowledge of English to work as a kitchen helper;
b. A supporting letter
from his current employer confirming that the applicant understood English
sufficiently well to perform his duties as a kitchen helper in Canada; and
c. A supporting
letter from the applicant’s prospective employer in Canada indicating
that she had personally spoken to the applicant and found his language
abilities to be sufficient.
[3]
The
applicant also noted the following facts regarding his ties to India:
a. He has no
close family ties in Canada;
b. His wife, two
children, parents and sibling all reside in India;
c. He and his
spouse have a combined CND$55,718 in assets in India;
d. He will
receive half of his father’s estate upon his father’s death, totalling
approximately CND$53,000;
e. His current
employer had written a letter confirming that he would be able to return to his
job when he came back from Canada.
[4]
The
Officer rejected the applicant’s application on the basis of two main factors:
a. He found the
applicant had insufficient language skills; and
b. He found that
the applicant would have no incentive to return to India given the
disparity in earning power between India and Canada.
[5]
The
Global Case Management System (GCMS) notes in full read as follows:
MARRIED MALE WIFE/2 CHILDREN IN INDIA NO PREVIOUS TRAVEL;
LMO TO WORK IN CANADA AS COOK
IN-NEWFOUNDLAND FOR 10.25 PER HOUR BASED ON 40 HOUR WEEK SEE PREVIOUS NOTES FOR
EMPLOYMENT HISTORY. EARNS 3500 INR/MONTH (77.OOCAD) WOULD BE EARNING OVER 21K
IN CANADA. GIVEN THE GREAT DISPARITY IN
PA’S EARNING POWER IN CANADA VERSUS IN INDIA, AS WELL AS
THE BETTER WORKING CONDITIONS AVAILABLE IN CANADA, IT APPEARS THAT PA WOULD HAVE LITTLE
FINANCIAL INCENTIVE TO RETURN TO INDIA IF ADMITTED TO CANADA. HAS DECLARED THAT HE WILL INHERIT
ANCESTRAL LAND. HAS LIFE INSURANCE. JEWELLERY AND CASH WORTH 9850001NR (APPROX
21800.OOCAD) LANGUAGE REQUIREMENT- ENGLISH WRITTEN AND ORAL. NO EVIDENCE
SUBMITTED THAT CLIENT CAN SPEAK OR WRITE. PER SUBMISSION DATED 06MAY2011
COUNSEL STATES THAT PROSPECTIVE EMPLOYER HAS SPOKEN TO APPLICANT AND FOUND HIS
ABILITIES ON BOTH SPOKEN AND WRITTEN ENGLISH SUFFICIENT. THE ONUS IS ON THE
APPLICANT TO PROVE THAT HE HAS THE ABILITY HE CLAIMS. IT IS SELF-EVIDENT THAT
MODERATE LANGUAGE ABILITY IS AN INHERENT OUALIFICATION FOR WORKING IN CANADA. WHILE THE JOB ITSELF MAY NOT
REOUIRE THE APPLICANT TO HAVE ANY LANGUAGE ABILITY, LIVING IN CANADA DOES. A DEMONSTRATED MODERATE
LANGUAGE ABILITY WILL NOT ONLY ALLOW THE APPLICANT TO BETTER UNDERSTAND THEIR
DUTIES BY ALLOWING THEM TO COMMUNICATE WITH EMPLOYERS OR CO-WORKERS, BUT IT
WILL ALSO PROTECT THE APPLICANTS. THEY WILL BE ABLE TO COMMUNICATE BETTER WITH
AUTHORITIES AND UNDERSTAND MORE FULLY ISSUES OF WORKPLACE SAFETY (SAFE
PRACTICES AT WORK. EMERGENCY INSTRUCTIONS. ETC.). AS IT WILL BE NECESSARY THAT
A WORKER UNDERSTAND AMONG OTHER THINGS THEIR RIGHTS. MORE THAN A BASIC UNDERSTANDING
IS NEEDED. WITHOUT LANGUAGE ABILITY THE APPLICANT MAY BE MORE VULNERABLE TO
ABUSE FROM THE EMPLOYER OR OTHER PARTIES BASED ON DOCS SUBMITTED, I AM NOT
SATISFIED THAT APPLICANT WOULD NOT STAY/WORK ILLEGALLY IN CANADA TO SUPPORT FAMILY IN INDIA. I AM NOT SATISFIED THAT HE HAS HAS
[sic] DEMONSTRATED THAT HE MEETS THE BURDEN OF R200(1)B) REFUSED
[6]
The
decision letter sent to the applicant noted the reasons for refusal as being:
a. That the
applicant was not able to demonstrate that he adequately met the job
requirements of his prospective employment; and
b. That the
applicant had not satisfied the decision-maker that he would leave Canada at the end
of his visa period (taking into account the applicant’s travel history, personal
assets and financial status).
Issues and Standard of Review
[7]
The
applicant’s principal contention is that the decision that the applicant would
not leave Canada at the end
of his proposed period of stay was unreasonable and that the Officer made a
material error of fact in rejecting the application on the basis that the
applicant had provided no evidence to demonstrate that he could speak or write
English.
[8]
Decisions
of visa officers are entitled to considerable deference and as such will be
reviewed on a standard of reasonableness: Liu v Canada (Minister of
Citizenship and Immigration), 2001 FCT 751, 208 FTR 99 (TD) at para 26; Benammar
c Canada (Minister of Citizenship and Immigration), 2001 FCT 1176, 112 ACWS
(3d) 137 (TD), at para 27; Reznitski v Canada (Minister of Citizenship and
Immigration), 2011 FC 93 at para 11.
Analysis
[9]
Two
decisions frame the analysis of this decision: Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury
Board),
2011 SCC 62 and Chhetri v Canada, 2011 FC 872.
[10]
In
Newfoundland and Labrador Nurses’ Union, the Supreme Court of Canada
clarified the approach to be taken in the judicial review of the reasoning
behind a decision. The Court noted that every reason, argument or other detail
need not be contained in the reasons, nor is a “decision-maker… required to
make an explicit finding on each constituent element… leading to its final
conclusion.” The reviewing court must simply be able to understand why the
decision was made. The reasons are to “be read together with the outcome and
serve the purpose of showing whether the result falls within a range of
possible outcomes”.
[11]
The
issues raised by this case are similar to those that were before me in Chhetri.
In that case, I noted, at para 9:
The combined effect of section 11(1) of
the Immigration and Refugee Protection Act, 2001, c. 27 (IRPA)
and Division 3 of Part 11 of the Immigration and Refugee Protection
Regulations (SOR/2002-227) (the Regulations) is to require visa
officers to be satisfied that the individuals are not inadmissible and that
they will leave Canada on expiry of their visa. It is often over-looked
that it must be “established” that the foreign national will leave at the end
of their visa. The combined effect of the IRPA and the Regulations
does not leave much room for officers to give the applicant the benefit of the
doubt; rather there is a positive obligation that it be established that
the foreign national will leave before the visa be issued.
[12]
Similarly,
the applicant must establish that he meets the requirements of the job for
which he seeks to come to Canada. In this case, the applicant did not meet
his burden of establishing that he met the language requirements of the job
description. While there was evidence regarding his language ability, including
letters from the applicant’s superior, an Indian army commander, and his
employer at the hotel where he worked, these letters did not confirm an ability
to speak or write, but rather only an ability to understand
English.
[13]
The
Officer’s reasons do not explicitly state that the letters are deficient
because they do not mention the applicant’s written or oral English skills.
However, it would be contrary to the guidance of the Supreme Court in Newfoundland
and Labrador Nurses’ Union to require such a statement in the reasons. The
Officer considered the letters, but concluded that the applicant’s English
ability was insufficient to grant the work permit. Based on a review of the
record, this conclusion was reasonably open to the Officer, and therefore the
application must be dismissed.
[14]
I
reach this conclusion despite my agreement with the applicant that the Officer
erred by relying solely on the disparity in earning potential between India and
Canada to conclude
that the applicant was not a bona fide temporary worker. As I
previously stated in Chhetri, disparity in earning potential cannot be
the sole reason for denying the issuance of a temporary employment visa. It is
a necessary component of the decision, but is not the only part of the
analysis.
[15]
In
this case, while the refusal letter also notes a concern regarding the
applicant’s travel history, that concern is found nowhere in the GCMS notes. The
only consideration mentioned in the analysis of whether the applicant was a bona
fide temporary worker was the relative economic advantage the applicant
would enjoy from working in Canada. However, because the Officer reasonably
found the applicant did not meet the necessary language requirements, this
conclusion does not alter the outcome of the application.
[16]
The
application for judicial review is dismissed.
[17]
No
question for certification has been proposed and none arises.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review be and is hereby dismissed. No question for certification has been
proposed and none arises.
"Donald
J. Rennie"
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