Date: 20171006
Docket: IMM-1670-17
Citation:
2017 FC 894
Vancouver, British Columbia, October 6, 2017
PRESENT: THE
CHIEF JUSTICE
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BETWEEN:
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LAMBER SINGH
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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
JUDGMENT
AND REASONS
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I.
Introduction
[1]
The Applicant, Mr. Singh, seeks judicial review
of a decision by a visa officer rejecting his application for a two-year work
permit and a temporary resident visa. The officer’s decision was based on his
conclusion that he was not satisfied that Mr. Singh would leave Canada at the
end of the two year period.
[2]
Mr. Singh submits that the officer’s decision
was not reasonable, because it was not appropriately justified or intelligible,
having regard to the evidence that was before the officer. Mr. Singh also
submits that the officer unreasonably discounted important evidence. I agree.
[3]
For the reasons that follow, this application
will be granted.
II.
Background
[4]
Mr. Singh is a 34 year-old citizen of India. He
is currently employed as a construction worker in Singapore, where he has been
working legally since 2009. Prior to that, he worked for five years in India in
the agricultural sector.
[5]
In November 2016, Mr. Singh received an offer of
employment from J. Gill Enterprises Ltd. to work as a general farm worker in
Chilliwack, British Columbia, for a term of two years. That offer was supported
by labour market impact assessment.
[6]
The following month, Mr. Singh submitted an
application for a work permit and a temporary resident visa at the Canadian
High Commission in Singapore.
III.
The Decision
[7]
In February 2017, the officer rejected Mr.
Singh’s application on the basis that he was not satisfied that Mr. Singh would
leave Canada by the end of the two year period for which he had requested
authorization to stay in this country.
[8]
It is common ground between the parties that the
Global Case Management System [GCMS] notes that were made by the officer form
part of the decision that is under review in this Application [the Decision].
[9]
In reaching the Decision, the officer relied
primarily on Mr. Singh’s long absence from his family in India while he has
been working in Singapore; the fact that he would be switching from his current
work in the construction field to employment as a general farm labourer; and
his poor employment prospects in India.
[10]
After being informed of the Decision, Mr. Singh
submitted additional documentation in support of a request for reconsideration
of the officer’s decision. This included:
i.
a list of his annual visits to his family in
India over the period 2012 – 2016, as well as in 2010;
ii.
a breakdown of the duration of those visits,
which ranged from 1 month to 4.5 months, except for 2016, when his visit was
for only two weeks;
iii.
support for his position that he had been
employed as a farm field supervisor in India from June 2003 to January 2009;
and
iv.
an explanation for why he was seeking employment
as a farm labourer.
[11]
After acknowledging the supplementary
information with respect to Mr. Singh’s annual visits to India and his prior
farm employment in that country, the officer maintained his original decision
to give limited weight to the fact that Mr. Singh’s family is located in India.
On that basis, he stated: “Original decision of refusal
remains.”
[12]
Given that the parties have treated the
officer’s initial decision and the response he gave to the request for
reconsideration as a single decision, I will do the same.
IV.
Relevant legislation
[13]
Pursuant to paragraph 20(1)(b) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], foreign nationals who seek
to enter or remain in Canada, and to become a temporary resident, must
establish two things. The first is that they hold the visa or other document
required under the Immigration and Refugee Protection Regulations,
SOR/2002-227 [Regulations]. The second is that they will leave Canada by the
end of the period authorized for their stay.
[14]
The latter obligation is reinforced by paragraph
200(1)(b) of Regulations, which states as follows:
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Work permits
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Permis de travail — demande préalable à l’entrée au Canada
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200 (1) Subject to subsections (2) and (3) — and, in respect of a
foreign national who makes an application for a work permit before entering
Canada, subject to section 87.3 of the Act — an officer shall issue a work
permit to a foreign national if, following an examination, it is established
that
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200 (1) Sous réserve des paragraphes (2) et (3), et de l’article
87.3 de la Loi dans le cas de l’étranger qui fait la demande préalablement à
son entrée au Canada, l’agent délivre un permis de travail à l’étranger si, à
l’issue d’un contrôle, les éléments ci-après sont établis :
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…
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…
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(b) the foreign national will leave Canada by the end of the
period authorized for their stay under Division 2 of Part 9;
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b) il quittera le Canada à la fin de la période de séjour qui lui
est applicable au titre de la section 2 de la partie 9;
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…
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…
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V.
Standard of Review
[15]
A visa officer’s assessment of an application
for a temporary work permit is highly factual in nature and involves the
exercise of significant discretion in balancing multiple considerations. Such
decisions are reviewable by this Court on a standard of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9, at para 53 [Dunsmuir]; Choi v Canada
(Minister of Citizenship and Immigration), 2008 FC 577, at para 12); Momi
v Canada ((Minister of Citizenship and Immigration), 2013 FC 162, at
para 14 [Momi]).
[16]
The Court’s task is therefore to assess whether
the Decision falls “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the law.”
In performing that assessment, the Court must consider whether the Decision is
appropriately justified, transparent and intelligible (Dunsmuir, above,
at para 47).
VI.
Analysis
[17]
Mr. Singh submits that the Decision was not
sufficiently justified or intelligible to fall within a range of outcomes that
are acceptable in fact and law. I agree.
[18]
The core finding made by the officer in reaching
the Decision was stated in the following single sentence: “Though [Mr. Singh] has family and property [in India], I am
not satisfied as to the establishment and ties [in that country].”
[19]
In support of that finding, the officer’s GCMS notes
state that he gave little weight to Mr. Singh’s statement that he would return
to India at the end of his two year stay in this country, because he had
already been away from India and his family for eight years. However, the
officer did not appear to give any weight or significant consideration to the
following facts:
i.
Mr. Singh had consistently visited his spouse
and three daughters each year since 2010 (with the exception of 2011), and
those visits were typically for extended periods of time;
ii.
he had several other family members in India, and
none whatsoever in Canada;
iii.
his father had recently transferred land in
India to him; and
iv.
he had significant other assets there, including
substantial savings, a family home, a car and a farm tractor.
[20]
In aggregate, the foregoing considerations were
of such significance that they should have been explicitly addressed in the
officer’s assessment of the relative strength of Mr. Singh’s establishment ties
to India and Canada, respectively. The officer’s failure to explain why these
factors did not, collectively, give rise to a significant degree of
establishment in India made his Decision difficult to understand and
insufficiently justified.
[21]
The Respondent asserts that the officer was
entitled to examine the totality of the circumstances relating to Mr. Singh’s
case, and that the weight assigned to the relevant considerations was a matter
for his discretion. I agree, provided that the officer’s process of
articulating reasons and the overall outcome fit comfortably within the
principles of justification, transparency and intelligibility. However, the
Decision fell short in both of these respects.
[22]
The Respondent relies on Sadiq v Canada
(Minister of Citizenship and Immigration), 2015 FC 955 [Sadiq], in
support of the position that the presence of family in an applicant’s country
of origin cannot be relied upon to demonstrate that the applicant will return
there before the expiry of a temporary work permit. However, the facts in that
case are distinguishable from those in the present Application. In particular,
the Court in that case found that there was nothing to suggest that Mr. Sadiq
had any ongoing relationship with his father and four siblings who lived in
Pakistan (Sadiq, above, at para 22). In contrast, the evidence in this
case is that Mr. Singh has a significant ongoing relationship with his spouse
and three daughters in India, as well as other significant ties to India.
[23]
In addition to the shortcomings in the officer’s
assessment of the strength of Mr. Singh’s establishment in India, the officer
unreasonably discounted the evidence of the land transfer from Mr. Sing’s
father. In this regard, he observed, earlier in his notes, that it was “unclear if [Mr. Singh] is the sole owner of this property,
as I note that [he] has three siblings in India (two of which farm [sic]), and
given inheritance laws it would be unusual for only one child to inherit
property.” However, the deed in the certified tribunal record very
clearly states that the land was transferred to Mr. Singh alone, and that as a
result of such transfer, neither his father nor his “heirs”
have any further concern or connection with the land.
[24]
Moreover, in finding that Mr. Singh was unlikely
to return to India at the end of his two year stay in Canada, the officer
failed to consider the significance of the fact that there was nothing to
suggest that he had ever failed to comply with Singapore’s immigration laws,
since he moved to that country in 2009 (Momi, above, at paras 20 and
25). I do not mean to suggest that a failure to consider this factor alone should
provide grounds for finding a decision to be unreasonable. However, on the
particular facts of this case, this omission was another shortcoming which,
taken together with others, collectively, rendered the Decision unreasonable.
[25]
The officer also stated in his notes that “it does not make sense that [Mr. Singh] would now switch
from construction to farm laborer for a salary that is comparable to the one
that he is already earning in Singapore.” However, given the evidence
that Mr. Singh had previously worked in the agricultural field in India from
mid-2003 to early 2009, this was not difficult to understand at all. This is
particularly so given the additional evidence that there are very limited jobs
in the agricultural field in Singapore, which explained why he had taken a
position there as a construction worker. As Mr. Singh stated in his letter requesting
a reconsideration of the officer’s initial rejection of his application, he was
“in essence returning to his original industry of work
experience.” This fact, which explained something that troubled the
officer, was not addressed in any way in his response to Mr. Singh’s request
for a reconsideration of the Decision.
VII.
Conclusion
[26]
For the reasons set forth above, I find that the
Decision was unreasonable. In brief, it did not fall “within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and the law” (Dunsmuir, above, at
para 47). This is because it was not appropriately justified, and it
unreasonably discounted evidence, including with respect to a land transfer to
Mr. Singh and the reason he gave for wanting to switch occupations.
[27]
I agree with the parties that no serious
question of general importance arises on the facts of this application.
Accordingly, no such question will be certified pursuant to paragraph 74(d) of
the IRPA.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
This Application is granted.
2.
The visa officer’s decision dated February 7,
2017, as confirmed in the officer’s response, dated March 16, 2017, to Mr.
Singh’s request for reconsideration is set aside and remitted to another visa
officer for reconsideration in accordance with these reasons.
3.
There is no question for certification.
"Paul S. Crampton"
APPENDIX 1 — Relevant Legislation
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Immigration and Refugee Protection Act,
S.C. 2001, c. 27
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Loi sur l’immigration et la protection des réfugiés, L.C. 2001, ch. 27
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Obligation on entry
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Obligation à l’entrée au Canada
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20 (1) Every foreign national, other than a foreign national
referred to in section 19, who seeks to enter or remain in Canada must
establish,
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20 (1) L’étranger non visé à l’article 19 qui cherche à entrer au
Canada ou à y séjourner est tenu de prouver :
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(a) to become a permanent resident, that they hold the visa or
other document required under the regulations and have come to Canada in
order to establish permanent residence; and
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a) pour devenir un résident permanent, qu’il détient les visa ou
autres documents réglementaires et vient s’y établir en permanence;
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(b) to become a temporary resident, that they hold the visa or
other document required under the regulations and will leave Canada by the
end of the period authorized for their stay.
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b) pour devenir un résident temporaire, qu’il détient les visa ou
autres documents requis par règlement et aura quitté le Canada à la fin de la
période de séjour autorisée.
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Immigration and Refugee Protection Regulations, SOR/2002-227
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Règlement sur l’immigration et la protection des réfugiés, DORS/2002-227
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Work permits
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Permis de travail — demande préalable à l’entrée au Canada
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200 (1) Subject to subsections (2) and (3) — and, in respect of a
foreign national who makes an application for a work permit before entering
Canada, subject to section 87.3 of the Act — an officer shall issue a work
permit to a foreign national if, following an examination, it is established
that
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200 (1) Sous réserve des paragraphes (2) et (3), et de l’article
87.3 de la Loi dans le cas de l’étranger qui fait la demande préalablement à
son entrée au Canada, l’agent délivre un permis de travail à l’étranger si, à
l’issue d’un contrôle, les éléments ci-après sont établis :
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(a) the foreign national applied for it in accordance with
Division 2;
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a) l’étranger a demandé un permis de travail conformément à la
section 2;
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(b) the foreign national will leave Canada by the end of the
period authorized for their stay under Division 2 of Part 9;
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b) il quittera le Canada à la fin de la période de séjour qui lui
est applicable au titre de la section 2 de la partie 9;
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(c) the foreign national
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c) il se trouve dans l’une des situations suivantes :
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(i) is described in section 206 or 208,
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(i) il est visé aux articles 206 ou 208,
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(ii) intends to perform work described in section 204 or 205 but
does not have an offer of employment to perform that work or is described in
section 207 but does not have an offer of employment,
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(ii) il entend exercer un travail visé aux articles 204 ou 205
pour lequel aucune offre d’emploi ne lui a été présentée ou il est visé à
l’article 207 et aucune offre d’emploi ne lui a été présentée,
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(ii.1) intends to perform work described in section 204 or 205 and
has an offer of employment to perform that work or is described in section
207 and has an offer of employment, and an officer has determined, on the
basis of any information provided on the officer’s request by the employer
making the offer and any other relevant information,
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(ii.1) il entend exercer un travail visé aux articles 204 ou 205
pour lequel une offre d’emploi lui a été présentée ou il est visé à l’article
207 et une offre d’emploi lui a été présentée, et l’agent a conclu, en se
fondant sur tout renseignement fourni, à la demande de l’agent, par
l’employeur qui présente l’offre d’emploi et tout autre renseignement
pertinent, que :
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(A) that the offer is genuine under subsection (5), and
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(A) l’offre était authentique conformément au paragraphe (5),
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(B) that the employer
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(B) l’employeur, selon le cas :
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(I) during the six-year period before the day on which the
application for the work permit is received by the Department, provided each
foreign national employed by the employer with employment in the same occupation
as that set out in the foreign national’s offer of employment and with wages
and working conditions that were substantially the same as — but not less
favourable than — those set out in that offer, or
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(I) au cours des six années précédant la date de la réception de
la demande de permis de travail par le ministère, a confié à tout étranger à
son service un emploi dans la même profession que celle précisée dans l’offre
d’emploi et lui a versé un salaire et ménagé des conditions de travail qui
étaient essentiellement les mêmes — mais non moins avantageux — que ceux
précisés dans l’offre,
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(II) is able to justify, under subsection 203(1.1), any failure to
satisfy the criteria set out in subclause (I), or
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(II) peut justifier le non-respect des critères prévus à la
sous-division (I) au titre du paragraphe 203(1.1),
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(iii) has been offered employment, and an officer has made a
positive determination under paragraphs 203(1)(a) to (e); and
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(iii) il a reçu une offre d’emploi et l’agent a rendu une décision
positive conformément aux alinéas 203(1)a) à e);
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(d) [Repealed, SOR/2004-167, s. 56]
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d) [Abrogé, DORS/2004-167, art. 56]
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(e) the requirements of subsections 30(2) and (3) are met, if they
must submit to a medical examination under paragraph 16(2)(b) of the Act.
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e) s’il est tenu de se soumettre à une visite médicale en
application du paragraphe 16(2) de la Loi, il satisfait aux exigences prévues
aux paragraphes 30(2) et (3).
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