Date: 20071105
Docket: IMM-1614-07
Citation: 2007 FC 1138
Ottawa,
Ontario, November 5, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
ANTONIO
ERINALDO da SILVA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 of a decision of an
Immigration Officer (the Officer), dated February 14, 2007, denying the applicant,
Antonio Erinaldo da Silva, a work permit without a labour market opinion from
Human Resources and Social Development Canada (HRSDC).
ISSUES
[2]
The
present application raises the following issue: did the Officer’s decision breach the
duty of procedural fairness by failing to provide adequate reasons?
FACTUAL BACKGROUND
[3]
The
applicant is a citizen of Brazil. He applied for a work permit under
section 205(a) of the Immigration and Refugee Protection Regulations,
SOR/2002-227, (Regulations) which provides an exemption from the requirement of
providing a labour market opinion from HRSDC on the grounds that the foreign
national “would create or maintain significant social, cultural or economic
benefits or opportunities for Canadian citizens or permanent residents”.
[4]
The
applicant secured employment with Ache Brazil, a martial
arts academy in Vancouver, British Columbia that offers instruction in
the Brazilian martial art Capoeira.
DECISION UNDER REVIEW
[5]
The
Officer assigned to the case determined that an exemption under section 205(a)
of the Regulations was not warranted because the applicant’s work would not
create sufficient cultural or economic benefits in Canada.
[6]
The
decision reads as follows:
This refers to your application for a
work permit which you submitted to this Consulate General on January 22nd,
2007.
I informed you my e-mail through my
assistant on that same date that you required a Job Opinion Confirmation issued
by a Human Resources and Skills Development Canada officer.
Your representative has requested written
reasons for this requirement. As the officer processing your case, please be
informed that I have determined that the potential cultural and economic
benefits Canada would enjoy, as you explained through your representative, do not
warrant an exemption of a Job Opinion Confirmation by HRSDC.
[7]
While
this and subsequent letters leave open the possibility of obtaining a work
permit if a labour market opinion is provided, the applicant takes this letter
to represent a negative decision, and a denial of a work permit. Because the
respondent does not take issue with this assumption, I will consider the letter
dated February 14, 2007 as a final decision.
RELEVANT LEGISLATION
[8]
Immigration
and Refugee Protection Regulations, SOR/2002-227.
|
200.
(1) Subject
to subsections (2) and (3), an officer shall issue a work permit to a foreign
national if, following an examination, it is established that
. .
.
(c)
the foreign national
. .
.
(ii)
intends to perform work described in section 204 or 205, or . . .
203.
(1) On
application under Division 2 for a work permit made by a foreign national
other than a foreign national referred to in subparagraphs 200(1)(c)(i) and
(ii), an officer shall determine, on the basis of an opinion provided by the
Department of Human Resources Development, if the job offer is genuine and if
the employment of the foreign national is likely to have a neutral or
positive effect on the labour market in Canada.
205. A work permit may be issued
under section 200 to a foreign national who intends to perform work that
(a)
would create or maintain significant social, cultural or economic benefits or
opportunities for Canadian citizens or permanent residents; . . .
|
200. (1) Sous réserve des
paragraphes (2) et (3), l’agent délivre un permis de travail à l’étranger si,
à l’issue d’un contrôle, les éléments suivants sont établis :
. .
.
c)
il se trouve dans l’une des situations suivantes :
. .
.
(ii)
il entend exercer un travail visé aux articles 204 ou 205, . . .
203. (1) Sur demande de permis
de travail présentée conformément à la section 2 par un étranger, autre que
celui visé à l’un des sous-alinéas 200(1)c)(i) et (ii), l’agent décide, en se
fondant sur l’avis du ministère du Développement des ressources humaines, si
l’offre d’emploi est authentique et si l’exécution du travail par l’étranger
est susceptible d’avoir des effets positifs ou neutres sur le marché du
travail canadien.
205. Un permis de travail peut
être délivré à l’étranger en vertu de l’article 200 si le travail pour lequel
le permis est demandé satisfait à l’une ou l’autre des conditions suivantes :
a)
il permet de créer ou de conserver des débouchés ou des avantages sociaux,
culturels ou économiques pour les citoyens canadiens ou les résidents
permanents; . . .
|
ANALYSIS
Standard of Review
[9]
The
issue raised by the applicant, regarding the right to adequate reasons, is an
issue of procedural fairness. Therefore, the standard that the Court must
consider is that of correctness; questions of procedural fairness require no
deference (Kharrat v. Canada (Minister of Citizenship and Immigration), 2007
FC 842, [2007] F.C.J. No. 1096 (QL) at paragraph 18; Shaker v. Canada
(Minister of Citizenship and Immigration), 2006 FC 185, [2006] F.C.J. No.
201 (QL) at paragraph 26; Canadian Union of Public Employees (C.U.P.E.) v.
Ontario (Minister of Labour), [2003] 1 S.C.R. 539).
Did the Officer fail to
provide adequate reasons?
[10]
The
Officer in this case did not breach the applicant’s right to procedural
fairness by failing to provide adequate reasons.
[11]
The
Court has often held that the adequacy of reasons must be viewed in context. Factors
which may reduce the content of the duty to provide reasons include the nature
and significance of the decision, the nature of the statutory scheme, the
significance or impact of the decision on the applicant, the absence of a legal
right to obtain a visa, the burden of establishing eligibility, the fact that
the Officer may be better placed to address the issue raised, and
administrative efficiencies (Khan v. Canada (Minister of Citizenship and
Immigration), 2001 FCA 345, [2001] F.C.J. No. 1699 (QL) at paragraphs
30-32; Wang v. Canada (Minister of Citizenship and Immigration), 2006 FC
1298, [2006] F.C.J. No. 1615 (QL) at paragraphs 19-20; Zhang v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1381, [2006] F.C.J. No.
1734 (QL) at paragraph 32; Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at paragraph 21).
[12]
I
agree with the respondent’s submission that the duty to provide reasons is lower
in the context of applications for temporary residence status. A number of the
factors listed above would suggest that the duty to provide reasons is
minimal: the applicant has no legal right to obtain a visa, and bears the
burden of establishing the merits of his claim; the refusal of a work permit on
an application from outside of Canada has less impact on the applicant than
would the removal of a benefit; and the Officer is in a better place to
evaluate the cultural and economic benefits of the applicant’s prospective
employment than the applicant.
[13]
Further,
it is helpful to look to the Citizenship and Immigration Canada FW 1 Foreign
Worker Manual, at paragraph 5.29 which states:
In considering exemptions to the need for
a HRSDC labour market opinion, or ‘confirmation’ before issuing a work permit,
officers should keep in mind the general principle: Authorizing a foreign
national to work in Canada has an impact on the Canadian
labour market and economy. And, generally speaking, officers should be
reluctant to issue a work permit without the assurance from HRSDC that the
impact on Canada’s labour market is likely to
be neutral or positive.
. . .
R205(a) is intended to provide an officer
with the flexibility to respond in these situations. It is imperative that
this authority not be used for the sake of convenience, nor in any other manner
that would undermine or try to circumvent the importance of the HRSDC confirmation
in the work permit process. It is rather intended to address those situations
where the social, cultural or economic benefits to Canada of issuing the work permit are so clear
and compelling that the importance of the HRSDC confirmation can be overcome.
[14]
The
Guideline from Citizenship and Immigration Canada is instructive because it affords
the Officer a high level of discretion in exceptional circumstances. In my
opinion, the fact that an application under 205(a) should only be granted in
exceptional cases is another factor serving to attenuate the duty of fairness
owed with respect to reasons.
[15]
For
these reasons, I find that the Officer did not breach the applicant’s right to
procedural fairness. It was open to the Officer to simply state that he was not
convinced that the applicant had met the burden of proving that the cultural
and economic benefits were so overwhelming as to exempt the applicant from the
requirement of obtaining a labour market opinion.
[16]
At
the hearing, the applicant objected to the filing of the Officer's affidavit.
The affidavit in question was filed in accordance with Justice Campbell's order
of July 30, 2007. The respondent argues that the objection is too late and the
applicant could have cross-examined the Officer or bring a motion to exclude
the affidavit from the file before the hearing. Nothing was done and therefore
the objection should be dismissed.
[17]
I
examined the affidavit in question and compared the Officer’s assertions with
the Computer Assisted Immigration Processing System notes (CAIPS notes) to see
if the applicant had been prejudiced by the filing of the Officer’s affidavit.
There is nothing different except that the Officer states that he consulted the
Citizenship and Immigration Canada Foreign Worker’s Manual (FW 1) section 5.29
to arrive at his decision. I am satisfied that the affidavit should be included
in the respondent’s record. Therefore, the applicant's objection is dismissed.
[18]
The
applicant submits the following question for certification:
1. Up to
what point in time may the Respondent alter or add to the reasons for decision:
a. when the decision
and contemporaneous CAIPS notes are made,
b. when the Respondent
sends reasons for decision to the Applicant on the Applicant's request,
c. when the Federal
Court requests reasons for decision after a judicial review has been commenced,
d. when the
Respondent's affidavits to the Leave decision are due,
e. when the trial record is
filed,
f. when the
respondent's affidavits to the Judicial Review are due, or
g. the date of the judicial
review hearing.
2. If the
Applicant asks for the reasons for decision and reasons for decision are
provided by the Respondent which do not include the contents of the CAIPS
notes, may the Respondent later claim the CAIPS notes as part of the reasons
for decision.
[19]
The
respondent opposes the requests for certification. I agree with the respondent
that the proposed questions do not arise from the facts in the case at bar.
The Officer’s affidavit introduced the CAIPS notes which constitute the reasons
for his decision. This is an acceptable method to introduce them in evidence (Kalra
v. Canada (Minister of
Citizenship and Immigration), 2003 FC 941, [2003] F.C.J. No. 1199 (QL)).
[20]
Even
though no direction from the Court was given to the Applicant to submit a reply
to the respondent’s submissions on the proposed questions for certification,
the Court analyzed and considered the applicant’s reply before coming to its
decision.
JUDGMENT
THIS COURT ORDERS
that the application for judicial review is
dismissed. No question is certified.
“Michel
Beaudry”
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