Docket: IMM-6943-10
IMM-6944-10
Citation: 2011 FC 872
Ottawa,
Ontario, July 12, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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IMM-6943-10
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SHYAM THAPA CHHETRI
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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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AND
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IMM-6944-10
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SHALIK RAM THAPA CHHETRI
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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 to set aside a decision of a Visa Officer at the High Commission in New Delhi, India refusing an
application for a temporary work visa (TWV). The applicant challenges the
decision on the basis of breach of procedural fairness, reviewable on a standard
of correctness, and on the basis that the Officer’s decision cannot be
sustained when assessed against a reasonableness standard for failing to take
certain evidence into account.
[2]
This
application was heard at the same time as that of Shalik Chhetri v. Canada (Minister of
Citizenship and Immigration) IMM-6944-10. The reasons issued in this
case apply equally to the companion file and a copy will be placed on that
file. For the reasons that follow, the applications are granted.
Preliminary
Motion
[3]
At
the outset of this hearing the respondent Minister moved to have the
applications struck on the grounds that they were moot. The applicants had,
subsequent to the rejection of their application for a TWV, reapplied. Those
applications had also been rejected and judicial review had been commenced of
those decisions.
[4]
In
my view, the existing applications are not moot. The second refusal did not
insulate the first decision from review. There remains a live controversy
between the parties as to adequacy of the reasons for rejecting the
application. There remains a lis between the parties and the fact is
that this decision could have practical effect. The motion was therefore
dismissed and the application heard on the merits.
Facts
[5]
Shyam
and Shalik Chhetri applied to the High Commission in India for a Canadian
temporary work visa (TWV). The applications were based on an October 5, 2010
positive labour market opinion (LMO) provided by Service Canada in respect of
positions as “Domestic Servants” to the Chief Executive Officer of Husky Oil
and Gas, Mr. Asim Ghosh, who is located in Calgary, Alberta. In letters to the
High Commission in India Mr. Ghosh wrote that the applicants’ work duties would
include: “…preparing all meals in the three Indian cuisines of Behgali, U.P.
and South Indian, shopping for food, laundry, ironing, cleaning the residence,
serving daily meals, serving and assisting with entertainment, household
maintenance including janitorial, gardening, pruning, grass cutting, snow
removal, grooming and exercising of pets, and car washing.”
[6]
Mr.
Ghosh further advised that both Shyam and Shalik had in the past worked for him
in these positions. Attached to the applicants’ applications were photocopies
of entries from a ledger which showed past employment with Mr. Ghosh. The
applicants were to be paid $13.72 per hour and scheduled to work 40 hours per
week. They were to be provided with 10 weeks of paid vacation, as well as
medical and dental benefits. The duration of the employment contract was one
year. While transportation costs from India to Calgary would be borne by Mr. Ghosh, accommodation
upon arrival would not.
[7]
Both
applications were denied by the Visa Officer at the High Commission in India, in November 2010. The
Visa Officer wrote in her decision regarding Shyam:
“DIVORCED
MALE TO WORK AS DOMESTIC SERVANT IN CANADA. PREVIOUS EXPERIENCE IN HOME OF
POTENTIAL EMPLOYER IN INDIA SINCE 1999. NOT CLEAR IF EMPLOYER IS
CANADIAN CITIZEN OR PERMANENT RESIDENT AND WHY HE IS GOING TO CANADA. LETTER ON FILE FROM EMPLOYER THAT HE IS FAMILIAR WITH
APPLICANT WORK AS HE HAS BEEN EMPLOYED AT. HIS RESIDENCE IN INDIA. HAS SUBMITTED COPY OF NOTEBOOK PAGES DATED MAY 07- SEP 10
WHICH APPEARS TO BE SALARY PAID BUT NO INDICATION OF NAME, SIGNATURE OF RECEIPT
APPEARS TO BE THAT OF APPLICANT. SALARY PER MONTH RANGES FROM 6000INR/MONTH (130.00 CAD) — 80001N1{ (186.00) SALARY
TO BE PAID 13.72/HOUR X 40 HOURS PER WEEK X 52 WEEKS PER YEAR = 28537.00 CAD
ABILITY IN ENGLISH IS REQUIRED — NO EVIDENCE PRESENTED THAT APPLICANT HAS THE
ABILITY. APPLICANT IS CITIZEN OF NEPAL WHO APPEARS TO HAVE BEEN IN INDIA FOR 12 YEARS. MOTHER AND SIBLINGS LIVE IN NEPAL YET PASSPORT ISSUED 2002 SHOWS NO TRAVEL BACK. NOTE
THAT THERE IS A STARK CONTRAST IN WAGES AND WORKING CONDITIONS BETWEEN CANADA AND INDIA. IN ADDITION TO DIFFICULT LIVING AND
WORKING CONDITIONS AND LIMITED PROSPECTS FOR ADVANCEMENT IN INDIA FOR PERSONS
IN THIS PROFESSION, THERE IS A STRONG INCENTIVE FOR THIS APPLICANT TO REMAIN IN
CANADA BY ANY MEANS ON COMPLETION OF THE
OFFERED EMPLOYMENT. THIS IS ESPECIALLY TRUE GIVEN THAT THE APPLICANT HAS NO
TIES TO INDIA AND WEAK TIES TO NEPAL. NOT SATISFIED APPLICANT NO T HAS A GENUINE TEMP PURPOSE
FOR TRAVEL TO CANADA NOT SATISFIED MEETS REQUIREMENTS OF
R200(1)(B) REFUSED.”
[8]
And
in respect of her decision regarding Shalik, the officer wrote:
“MARRIED
MALE TO WORK AS DOMESTIC SERVANT IN CANADA. PREVIOUS EXPERIENCE IN HOME OF
POTENTIAL EMPLOYER IN INDIA SINCE 1999. NOT CLEAR IF EMPLOYER IS
CANADIAN CITIZEN OR PERMANENT RESIDENT AND WHY HE IS GOING TO CANADA. LETTER ON FILE FROM EMPLOYER THAT HE IS FAMILIAR WITH
APPLICANT WORK AS HE HAS BEEN EMPLOYED AT HIS RESIDENCE IN INDIA. HAS SUBMITTED COPY OF NOTEBOOK PAGES DATED MAY 07- SEP 10
WHICH APPEARS TO BE SALARY PAID BUT NO INDICATION OF NAME, SIGNATURE OF RECEIPT
APPEARS TO BE THAT OF APPLICANT. SALARY PER MONTH
RANGES FROM S500LNRIMONTH (130.00 CAD) — 8000INR (186.00) SALARY TO BE PAID
13.72/HOUR X 40 HOURS PER WEEK X 52 WEEKS PER YEAR = 28537.00 CAD ABILITY IN
ENGLISH IS REQUIRED — NO EVIDENCE PRESENTED THAT APPLICANT HAS THE ABILITY.
APPLICANT IS CITIZEN OF NEPAL WHO APPEARS TO HAVE BEEN IN INDIA FOR 12 YEARS. MOTHER, WIFE AND TWO CHILDREN LIVE IN NEPAL YET PASSPORT ISSUED 2009 SHOWS NO TRAVEL BACK. NOTE
THAT THERE IS A STARK CONTRAST IN WAGES AND WORKING CONDITIONS BETWEEN CANADA
AND INDIA. IN ADDITION TO DIFFICULT LIVING AND
WORKING CONDITIONS AND LIMITED PROSPECTS FOR ADVANCEMENT IN INDIA FOR PERSONS
IN THIS PROFESSION, THERE IS A STRONG INCENTIVE FOR THIS APPLICANT TO REMAIN IN
CANADA BY ANY MEANS ON COMPLETION OF THE
OFFERED EMPLOYMENT. THIS IS ESPECIALLY
TME GIVEN THAT THE APPLICANT HAS NO TIES TO INDIA
AND WEAK TIES TO NEPAL. NOT SATISFIED APPLICANT NO T HAS A
GENUINE TEMP PURPOSE FOR TRAVEL TO CANADA NOT SATISFIED MEETS REQUIREMENTS OF
R200(1)(B) REFUSED.”
[9]
Decisions
of visa officers in their assessment of the facts and the weight to be accorded
criteria relevant to temporary work visas are entitled to considerable
deference. 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.
[10]
Foreign
nationals are entitled to the minimum degree of procedural fairness. There is
no obligation on the visa officer to advise the applicant of concerns about, or
deficiencies in, their application or to offer an interview. Nor, as Rothstein
J.A. (ex officio) said in Qin v Canada (Minister of
Citizenship and Immigration), 2002 FCT 815, does the onus shift to the visa
officer to take any additional steps to address or satisfy outstanding
concerns. The foreign national has no right or interest at play. It is for
these reasons that it is often difficult to set aside, on judicial review, a
visa officer’s decision.
[11]
This,
however, is one of those rare cases where the decision cannot stand. The Visa
Officer premised her decision on what has been determined by this Court to be
an irrelevant criteria, namely “… the stark contrast in wages and working
conditions between Canada and India.”
This, in the Visa Officer’s opinion, meant that “there was a strong incentive
for the applicant to remain in Canada by any means following on completion of the offered
employment.”
[12]
The
possibility of financial betterment or career experience cannot, in and of
itself, constitute a valid reason for rejecting an application. As has been
pointed out in a number of decisions, these are the factors that motivate
potential applicants. The very reasons for coming, and the catalyst which
makes the TWV program viable cannot be a reason for rejecting applicants. In Minhas
v Canada (Citizenship and
Immigration),
2009 FC 696, Justice Tremblay-Lamer held:
… difference in salaries between India and Canada may indicate incentive to stay only when
the cost of living is also considered. Standard of living in the home country
is also important to determining where the Applicant may be better off [].
It was not reasonable for the Officer, without a stronger
method of comparison such as cost of living between the Applicant’s
presumed low income in India and earnings in Canada, to presume overstay based on this
factor especially since the evidence before the Officer indicated that the
Applicant while in India had some assets to his name.
Further, while economic incentive to stay in Canada is a
reasonable consideration on the part of the Officer, the majority of applicants
would have some economic incentive to come work in Canada, and this incentive therefore cannot so
easily correlate with overstay since it is inconsistent with the work permit
scheme.
[13]
This
principle has been applied in other decisions of this Court: Cao v
Canada (Citizenship and Immigration), 2010 FC 941, per Justice
Martineau; Khatoon v Canada (Citizenship and Immigration), 2008 FC 276,
per Justice Temblay-Lamer; Dhanoa v Canada (Citizenship and Immigration),
2009 FC 729, per Justice Harrington; and Rengasamy v Canada (Citizenship and
Immigration), 2009 FC 1229, per Justice O'Reilly.
[14]
The
focus must, therefore, be on the strength of ties to the home country. Visa
officers must assess the strength of the ties that bind or pull the applicant
to their home country against the incentives, economic and otherwise, that
might induce the foreign national to overstay. In this sense the relative
economic advantage is a necessary component of the decision, but it is not the
only part of the analysis. It is only through objective evidence of countervailing
strong social and economic links to the home country that the onus to establish
an intent to return be discharged.
[15]
As
noted, the economic incentives played a determinative role in the Officer’s
decision. There were however further aspects of the Officer’s decision which
call its reasonableness into question. The Officer wrote that it was “not
clear if the employer is a Canadian citizen and why he is going to Canada”, yet the record
included a letter from the employer that he was the Chief Executive Officer of
Husky Oil, resident in Calgary. The Officer noted
that there was no evidence of English language ability as required by the
Labour Market Opinion, yet there was a letter from the employer confirming the
ability of the applicants to fulfill all the requirements of the position. While
this letter does not displace or bind the Visa Officers’ assessment of the
language skill or requirement in any way, it was nevertheless some evidence
which was before the Officer when the Officer concluded that there was no
evidence. Whether it constitutes sufficient evidence is another matter for
another day, but that letter, to the extent that it is evidence, needed to be
considered and assessed in the context of the proposed employment.
[16]
The
duties for the position did not require the applicants to have a fluent understanding
of English as confirmed by the LMO. The job duties were almost wholly related
to work in Mr. Ghosh’s private residence and did not involve or require any
meaningful interactions with the public. As stated in Chen v Canada
(Minister of Citizenship and Immigration [2005] FCJ No 1674, visa officers
may determine that an applicant requires language requirements independent or
different than those set forth in the LMO if relevant to performance of the job
duties.
[17]
In
the discharge of their responsibilities, visa officers can consider any factor
relating to the bona fides of the both the employment offer and the bona
fides of the employee. The LMO is not determinative of how the discretion
will be exercised. It is a procedural pre-condition to the exercise of the
discretion, and part of the factual landscape against which the application is
assessed. However, in this case, there was no analysis by the Officer upon which
she concluded that the applicants did not possess the requisite English
language ability as necessitated by the job requirements.
[18]
In
assessing the strength of family ties to Nepal, the Officer, in respect of the applicant
Shyam, overlooked the existence of a child in Nepal. The Officer also noted deficiencies in the
proof of prior employment by the same proposed employer, but the basis on which
she decided that the pay records submitted were not genuine, is unclear.
[19]
To conclude on the
reasonableness of the decision, it will be recalled that the Officer decided
that the applicants could seek “to remain in Canada
by any means on completion of the offered employment”. In Do v Canada
(Minister of Citizenship and Immigration), 2004
FC 1269 the visa officer
found that the job offer was submitted to help the applicant gain access to
Canada so that he could eventually sponsor his family members. Von Finckenstein
J., in finding that the visa officer erred in making this assertion, stated
that:
No rationale was given for this assertion and there is no
evidence to that effect on the record.
[20]
This is not to say
that the Visa Officer’s concerns were without foundation. There was good
reason to be concerned both, by the absence of travel back to Nepal, by the lack of proof of any economic or legal interests in
Nepal, and the uncertainty of the family situation in Nepal. A yellow flag was reasonably raised, and, in most cases,
that would be sufficient to dismiss an application for judicial review. However,
assessing the decision as a whole, it does not meet the required standards of
justification and intelligibility as set forth in Khosa v Canada (Citizenship and Immigration), 2010 FC 83.
[21]
For these reasons, this
application for judicial review is granted and the matter remitted to a
different visa officer for re-determination.
JUDGMENT
THIS COURT’S JUDGMENT is
that:
1. These
applications for judicial review are granted and the matters remitted to a
different visa officer for re-consideration.
2. A
copy of these reasons shall be placed on file IMM-6944-10, which was heard at
the same time.
3. No questions arise for
certification.
"Donald J. Rennie"
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