Date: 20090716
Docket: IMM-433-09
Citation: 2009 FC 729
Vancouver, British Columbia, July
16, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
JAGPAL
SINGH DHANOA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Dhanoa, a citizen of India, was offered a two-year term of employment
with Paradise Roofing Ltd. of Surrey, B.C. The job was described as the loading
and unloading and transportation of construction material, assisting in
building roofs, levelling earth, removing debris from construction sites and
tending and feeding machines used in roofing. His application for a Canadian
Temporary Resident Visa Work Permit was refused on the grounds that he had
failed to satisfy the visa officer that he would leave Canada at the end
of the authorized period. This is a judicial review of that decision.
[2]
In
the spring of last year, the government initiated a Pilot Project for
occupations requiring lower levels of formal training. According to the “FW 1
Temporary Foreign Worker Guidelines” this:
…Low-Skilled Pilot Project is a
labour-market-driven risk-management strategy aimed at filling this void by
permitting the hiring of low-skilled workers from overseas. When assessing LSP
applications, officers are to be mindful of the compelling policy objectives
addressed by this pilot project and to balance potential risks against the very
real benefits to the Canadian economy.
[3]
Mr.
Dhanoa is 37 years of age, married with two children. He works the family’s
farm which is valued at $150,000. In due course, half of it may devolve to him.
[4]
His
perspective employment would pay $18 an hour plus overtime after 40 hours. He
hopes to earn enough so that with the assistance of a loan from a friend he
would be able to put down a sufficient deposit on a dairy farm, so as to obtain
a mortgage.
[5]
A
Canadian Labour Market Opinion is in place.
[6]
The
visa officer was not satisfied that he would leave Canada at the end of his
two-year employment because he had not demonstrated that he was sufficiently
well-established in India, and that he was not a bona fide foreign
worker but rather would use the program in order to facilitate his entry here.
[7]
The
officer’s notes read:
PA has no previous travel. As per info in
application form his current income in India is low. Is working as a farmer n India. I note that proposed employment in Canada is unrelated to PA’s work
experience. Given PA’s greater earning power in Canada versus India, combined with better
living and working conditions in Canada,
I find that PA would have a strong socio-economic incentive to stay in Canada by any means after the end of
his authorized stay. I am cognizant that PA has a wife and kids in India. However, on a balance of probabilities,
I am not satisfied that PA would not bear the hardship of being separated from
his family in order to take advantage of better socio-economic opportunities in
Canada. Not satisfied PA meets
the requirements of R200(1)(b).
Refused.
[8]
The
reference to R. 200(1)(b) is to the Immigration and Refugee Protection
Regulations which provide that an officer shall issue a work permit if it
is established that the foreign national will leave Canada at the end
of the authorized period.
[9]
While
it is true that a person coming here is initially presumed to be an immigrant,
that there is therefore an onus upon him to disabuse the visa officer of that
notion, and that the decision under review is a highly discretionary one, it
must be kept in mind as stated in Roncarelli v. Duplessis [1959] S.C.R.
121 “… there is no such thing as absolute and untrammelled ‘discretion’ … there
is always a perspective within which a statute is intended to operate…”.
[10]
The
guidelines, which of course are only that, are nevertheless helpful. They state
that the assessment requires answering two basic questions: Does the applicant
intend to do the job and does he have the ability to do the job? Although there
are risks involved, the decision-maker is called upon to be mindful of Canada’s economic
needs.
[11]
The
standard of review is reasonableness (Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190, Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, 304 D.L.R. (4th) 1).
This decision does not meet that standard.
[12]
Lack
of previous travel can only at most be a neutral factor. If one had travelled
and always returned, the visa officer’s concerns might be lessened. If one came
to Canada, claimed
refugee status and was not permitted to stay here on humanitarian and
compassionate grounds, an application for a temporary work permit would
obviously heighten suspicions.
[13]
The
remark that the employment is unrelated to Mr. Dhanoa’s work experience as a
farmer did not serve as an indication that he was unable to do the job, as that
box was not checked off in the decision form. I do not see how it would be
indicative of his intention not to do the job and not to leave Canada at the end
of his employment.
[14]
The
references to greater earning power in Canada and better
living and working conditions are somewhat sterile as no analysis was done of
his living conditions in India, whether his declared intention to purchase a
farm was feasible, and what his standard of living would be in India compared to Canada after he
earned some money here.
[15]
Indeed,
the very basis of the pilot project is these workers will only come here if
they are going to be paid more than in their home country.
[16]
The
thought that he would abandon his wife and children in order to take advantage
of better socio-economic opportunities here is distasteful. It is rather
sanctimonious to suggest that our society is more of a draw for him than India, where he
would be in the bosom of his family, simply because he would have 30 pieces of
silver in his pocket. As per Timothy 6:10 “for the love of money is the
root of all evil.”
[17]
As
noted by Madam Justice Tremblay-Lamer in Minhas v. Canada (Minister of Citizenship
and Immigration) 2009 FC 696 at paragraph 16, the majority of
applicants under programs such as this would have an economic incentive to come
to work here “…and this incentive therefore cannot so easily correlate with
overstay since it is inconsistent with the work permit scheme.” She also
pointed out that a cost of living analysis is important.
[18]
The
decision was unreasonable not simply because it was stereotypical, but also
because 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.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for
judicial review is granted. The matter is referred to a different officer for a
fresh redetermination. There is no question to certify.
“Sean
Harrington”
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