Date: 20091201
Docket: IMM-1611-09
Docket: IMM-1612-09
Citation: 2009 FC 1229
Ottawa, Ontario, December 1, 2009
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
SELVAN RENGASAMY
KUMARENSAN RENGASAMY
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
Selvan Rengasamy
and Kumaresan Rengasamy are brothers, each with a wife and children in India. They applied for work permits at the Canadian
Embassy in New Delhi, India. A visa officer turned them down, primarily because he was not
satisfied that they would return to India when
their permits expired.
[2]
The applicants
argue that the officer treated them unfairly by not giving them a chance to
respond to the officer’s concerns, and by refusing their applications simply
because they would have a financial incentive to stay in Canada beyond the duration of their permits. They ask
me to set aside the officer’s decision and order another officer to reconsider
their applications.
[3]
I agree that the
officer erred and will grant this application for judicial review. There are
two issues:
1.
Were the
applicants treated unfairly?
2.
Was the decision
reasonable?
II. Factual Background
[4]
The applicants currently work as
waiters and cook’s assistants at a hotel in India. They provided letters from
the director of the hotel indicating that they had experience in their
positions. They both received offers to work as kitchen helpers at a Calgary
restaurant, and submitted employment contracts indicating that they would be
paid $10.42 an hour and provided accommodation up to $300 a month. They also
supplied certificates showing that they had studied English, and forms
indicating that they both had wives and children who would not be accompanying
them to Canada.
III.
The Decision
[5]
In fact, two officers reviewed the
applicants’ materials.
[6]
The first officer was concerned
that the applicants’ reference letters did not identify the signatory. The
second officer noted that the letters did not look professional because they
had computer-generated letterhead, contained little information, used poor
English, and used different fonts.
[7]
The officers also noted the large
discrepancy between what the applicants were currently earning in India and
their prospective wages in Canada. They concluded that the applicants did not have
sufficient incentive to return to India at the end of their terms.
[8]
The first officer stated:
Given the difference in salary,
it is highly likely that he would prefer to bear the hardships of separation
with his family than come back to work hard at the same position for much less
salary.
[9]
The second officer concurred:
On balance, I am not satisfied
that [the applicant] would not bear the hardship of separation from his family
in India and remain in Canada by any means in order to take advantage of better
socio-economic opportunities in Canada. On balance, I am not satisfied that
[the applicant] would be a genuine temporary resident in Canada, nor that he
would depart Canada at the end of an authorized stay, even if there were no
legal means of remaining.
1. Were the applicants treated
unfairly?
[10]
The applicants submit that the officers had a duty to give them a chance
to address the concerns about the authenticity of their reference letters.
[11]
Generally speaking, officers have a duty to allow applicants to make
submissions in respect of any extrinsic materials on which the officers rely.
In addition, in my view, officers have a duty to give applicants a chance to
respond to concerns that amount to allegations of misrepresentation or other
serious misconduct (see, e.g., Cornea v. Canada (Minister of
Citizenship and Immigration), 2003 FC 972; Ahmed v. Canada
(Solicitor General), 2005 FC 1111).
[12]
Here, the officers found that the applicants’ letters should be given
little weight. True, there was some concern about the authenticity of the
letters, but the main conclusion was that the letters were “low quality” and
“not professional”. In any case, the officer’s characterization of the letters was
not the main reason for denying the work permits. In the circumstances, I do
not believe the officers had a duty to give the applicants a chance to address
the point.
2. Was the decision reasonable?
[13]
The respondent argues that the officer was entitled to infer from the
vast differential between the applicants’ wages in India and their prospective
earnings in Canada that the applicants would have a powerful incentive to
overstay their work permits.
[14]
Obviously, persons who apply for temporary work permits in Canada are
doing so because they can earn more money here than at home. In that sense,
anyone who seeks or is granted a temporary work permit will have a financial
incentive to stay in Canada beyond the specified term. Accordingly, a financial
incentive to remain in Canada cannot, on its own, justify refusing an
application. Otherwise, no application could succeed. As Justice Sean
Harrington pointed out in similar circumstances, an officer’s decision will be
unreasonable where it “relied on the very factor which would induce someone to
come here temporarily in the first place as the main reason for keeping that
person out” (Dhanoa v. Canada (Minister of Citizenship and
Immigration), 2009 FC 729).
[15]
The Minister submits that the burden is on the applicants to provide
evidence showing that they will return home when their permits expire (Immigration
and Refugee Protection Regulations, SOR 2002/227, s 179(b)). Here,
the applicants submitted evidence of their significant family connections in India
where each has a parent, a spouse and young children. They have only one
distant cousin in Canada. The Minister argues that the applicants’ evidence of
family ties in India is thin and, therefore, that the applicants did not
discharge their burden of proof. The Minister suggests that the applicants
could have supplemented their applications by giving more information about the
quality of their family relationships.
[16]
However, I note that the officer expressed the burden of proof on the
applicants differently from the Minister. The officer stated, in effect, that
the applicants had the burden of proving that the personal hardship of being
separated from their families indefinitely would outweigh the financial
benefits of remaining in Canada. In other words, they had to show that their
families meant more to them than $10.43/hour.
[17]
I
believe the officers misstated of the onus on the applicants. In turn, this
caused them to discount unreasonably the significance of the applicants’ family
ties in India and, therefore, the evidence supporting their undertakings to
return to India when their
permits expire. As a result, the officers’ decision was unreasonable.
[18]
Accordingly,
I would allow these applications for judicial review and order another officer to
re-assess the applications for work permits. No question of general importance
arises.
JUDGMENT
THIS COURT’S JUDGMENT IS
that:
1.
The
application for judicial review is allowed. The matter is referred back to
another officer for reconsideration;
2.
No
questions of general importance are stated.
“James
W. O’Reilly”
Annex “A”
|
Immigration and Refugee Protection Regulations, SOR
2002/227
Issuance
179. An officer
shall issue a temporary resident visa to a foreign national if, following an
examination, it is established that the foreign national
[…]
(b) will leave Canada by
the end of the period authorized for their stay under Division 2;
|
Règlement sur l’immigration et la
protection des réfugiés, DORS/2002-227
Délivrance
179. L’agent délivre un visa de résident temporaire 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 autorisée
qui lui est applicable au titre de la section 2;
|
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