Date: 20090916
Docket: IMM-97-09
Citation: 2009
FC 925
Calgary, Alberta, September 16, 2009
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
ISSAM
AMRI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER AND REASONS FOR ORDER
UPON hearing
this application for judicial review of a decision of a Visa Officer (Officer)
dated November 18, 2008 wherein the Applicant’s request for a temporary work
visa was denied;
AND UPON reviewing the materials filed
and upon hearing counsel for the parties at Calgary, Alberta on September 15, 2009;
AND UPON reserving decision;
AND UPON concluding that this application
be dismissed for the following reasons:
[1]
The
evidence indicates that Mr. Amri was the subject of a positive Labour Market
Opinion issued by Service Canada. This was the first step in obtaining a
temporary work permit which would have allowed him to work for his brother as a
commercial cleaner. That Opinion indicated that the position required no formal
education or English language skills.
[2]
I agree
with Mr. Amri’s counsel that the Officer’s reliance on a lack of English and
the absence of prior related work experience are somewhat disingenuous. This
was, after all, a cleaning position which the employer presumably had difficulty
filling with a Canadian employee. The expectation that this type of work
should require previous experience or minimal language skills is inconsistent
with the Labour Market Opinion and seems to me to be perverse.
[3]
The
problem for Mr. Amri is that the Officer declined a work permit for a second
reason, that being a concern that Mr. Amri would not return to Tunisia when his authorization
expired. That part of the decision was based on evidence elicited during an
interview indicating that Mr. Amri had insufficient ties to Tunisia to motivate his return. He
was single with no dependants and he worked on the family farm for no income.
He had limited education. He also had no savings and no assets in Tunisia. The Officer fairly described
Mr. Amri’s economic situation at home as “precarious”. Mr. Amri’s counsel
argued that the Officer made no mention of Mr. Amri’s Tunisian fiancé. While
that is true I am not satisfied that this was an issue of such significance
that it required comment or could have led to a different outcome. Mr. Amri
was also leaving his parents and several siblings behind for at least two
years. If the Officer did not accept those family connections to be sufficient
to ensure a return to Tunisia it is safe to assume that the
presence of a fiancé would not have altered that conclusion.
[4]
The
decision taken here was highly fact-dependant and it involved the conferral of
a discretionary privilege. It involved, therefore, the exercise of judgment
for which considerable deference is owed. As stated in Canada v. Khosa,
[2009] S.C.J. No. 12, 2009 S.C.C. 12 it is not the role of the Court on
judicial review to substitute its views of the evidence or to select a
“preferable outcome”, provided that the decision falls within a range of
possible, acceptable outcomes which are defensible in fact and law. There is
nothing about the Officer’s conclusion that he was not satisfied that Mr. Amri
would leave Canada after two years that falls outside of these legal parameters
and the decision must therefore be upheld.
[5]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
ORDER
THIS COURT ORDERS that this application for judicial
review is dismissed.
“R.
L. Barnes”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-97-09
STYLE
OF CAUSE: ISSAM AMRI
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
PLACE
OF HEARING: Calgary, Alberta
DATE
OF HEARING: September 15, 2009
ORDER
AND REASONS
FOR
JUDGMENT BY: Mr.
Justice Barnes
DATED: September
16, 2009
APPEARANCES:
Ram
Sankaran FOR
THE APPLICANT
Rick
Garvin FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
Sherritt
Greene
Calgary,
AB FOR
THE APPLICANT
John
Sims, Q.C. FOR
THE RESPONDENT
Deputy
Attorney General of Canada
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