Docket: IMM-4073-24
Citation: 2025 FC 887
Ottawa, Ontario, May 14, 2025
PRESENT: The Honourable Madam Justice Tsimberis
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BETWEEN: |
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BALJINDER 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
I. Overview
[1] This is the judicial review of a decision of a visa officer [Officer] dated February 20, 2024 [Decision] refusing the application for a work permit of Baljinder Singh [Applicant] under the Temporary Foreign Worker Program [TFWP], as the Officer was not satisfied that the Applicant (1) would leave Canada at the end of his stay, pursuant to paragraph 200(1)(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR], and (2) had met the requirements under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Officer based its conclusion on the purpose of the Applicant’s visit to Canada not being consistent with a temporary stay given the details provided in his application.
[2] For the reasons that follow, this Court allows this application for judicial review.
II. Factual Background
[3] The Applicant is a 43-year-old male citizen of India, married with one child, living in India.
[4] The Applicant applied for a work permit in September 2023, pursuant to subsection 200(1) of the IRPR, having received a positive Labour Market Impact Assessment expiring on December 10, 2023 for the position of Farm Worker under the National Occupational Classification [NOC] “8431”
with Jagroop S Dhaliwal and Shinderpal K Dhaliwal and an offer dated November 23, 2022 to work 40 hours per week during 24 months for a salary of $15.65 per hour as a Farm Worker in British Columbia.
[5] The Applicant’s CV outlined his education and listed “Owner/operator of a Dairy Farm”
as his current occupation, in addition to “Farming on Family Farm”
from 1999 to 2011. The Applicant attached supporting documents to his application, including an “Agreement/Lease Deed”
stating that the Applicant has been cultivating a land in India “from this 05th day July 2021 for the period of Five Years i.e. 04th Day of July 2025”
, and an “Income Certificate from Agriculture”
dated January 3, 2022.
III. Decision Under Review
[6] On February 20, 2024, Immigration, Refugees and Citizenship Canada [IRCC] issued the Officer’s Decision to refuse the Applicant’s work permit application under the TFWP. In its letter, the Officer stipulates that they are refusing the application because they were not satisfied that the Applicant will leave Canada at the end of his stay, as required by paragraph 200(1)(b) of the IRPR, based on the following factor:
[7] The relevant Global Case Management System [GCMS] notes are part of the Decision (Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 at para 44) and are reproduced below:
I have reviewed the application.
I have considered the following factors in my decision.
PA is 43 year-old, married adult male From India. Applying for a WP in NOC 85101 harvesting labourer. PA is working as a farmer since 2019 PA intends to work in Canada for 2 years. PA has weak establishment in India, Although he is working India, he does not explain why and how this will motivate him to leave Canada at the end of his stay Based on an overall review, on balance, I am not satisfied that PA is well established in home country, that he demonstrates strong economic ties and pull factors to home country.
Weighing the factors in this application. I am not satisfied that the applicant will depart Canada at the end of the period authorized for their stay.
For the reasons above, I have refused this application.
[8] The Applicant seeks judicial review of that Decision.
IV. Relevant Legislation
[9] The relevant provisions of the IRPA and the IRPR are reproduced hereinafter:
IRPA
Application before entering Canada
11 (1) A foreign must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
[…]
Work and study in Canada
30 (1) A foreign national may not work or study in Canada unless authorized to do so under this Act.
Authorization
(1.1) An officer may, on application, authorize a foreign national to work or study in Canada if the foreign national meets the conditions set out in the regulations.
[…]
IRPR
Issuance of Work Permits
Work permits
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 [...]
(b) the foreign national will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9; […]
V. Preliminary Issue
[10] The Respondent raises a preliminary issue that the Applicant’s Record includes two improper affidavits in support of his application for judicial review, which affidavits include information and materials that were not before the Officer and serve to bolster the record. The Respondent asks this Court to strike paragraph 6(g) of the Applicant’s Affidavit dated March 30, 2024 in its entirety, to disregard paragraph 6 and the related pages 45 to 55 of Exhibit “G”
of the Affidavit of Guntas Singh Sidhu [Singh Affidavit], and submits that any other reference to, or argument relying on, the improperly submitted materials in the Applicant’s Memorandum of Fact and Law, ought to be given no weight. The Respondent tendered the Affidavit sworn on April 30, 2024, of Poonam Garg, the Officer who processed the Application, confirming that the documents referred to in the Singh Affidavit and provided in the Sidhu Affidavit were not before her.
[11] In the normal course, evidence that was not before the decision maker and that goes to the merits of the matter is not admissible in an application for judicial review in this Court (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [Access Copyright] at para 19). In Access Copyright, the Federal Court of Appeal held, at paragraph 20, that there are a few recognized exceptions to the general rule, which “exist only in situations where the receipt of the evidence by the Court is not inconsistent with the differing roles of the judicial review court and the administrative decision-maker”
. The Federal Court of Appeal listed the following three non-exhaustive exceptions:
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Where the new evidence provides general background information in circumstances where that information might assist in understanding the issues relevant to the judicial review but does not add new evidence on the merits;
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Where the new evidence brings to the attention of the reviewing court procedural defects not found in the evidentiary record of the decision maker; and
c. Where the new evidence highlights the complete absence of evidence before the decision maker on a particular finding.
[12] After a careful review of the record before this Court, including the Certified Tribunal Record, I find the above-referenced information in the paragraphs and exhibits not only postdate the Decision, but were not before the Officer, and they all go to the Applicant’s ties and establishment to India. If accepted, these materials would be for the purpose of bolstering the merits of the Applicant’s application as opposed to addressing an issue falling under either of the Access Copyright exceptions or evidencing a procedural defect that would otherwise not be apparent.
[13] The Court’s role is to “not delve into or re-decide the merits of what the [Officer] has done”
(Access Copyright at para 18). I am not satisfied that any of the above exceptions are applicable allowing for this new evidence’s admissibility. This confirms my ruling from the bench pronounced during the hearing of the matter.
VI. Issue and Standard of Review
[14] At the hearing, the Applicant agreed to abandon his arguments regarding the issue of a breach of procedural fairness that was raised in his Memorandum of Fact and Law.
[15] There is only one issue before the Court: whether the Decision is unreasonable considering the evidence before the Officer?
[16] The parties agree that the merits of the Decision are reviewable on the presumptive standard of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 10, 25).
[17] To avoid intervention on judicial review, the decision must bear the hallmarks of reasonableness – justification, transparency and intelligibility (Vavilov at para 99). A reasonable decision will always depend on the constraints imposed by the legal and factual context of the particular decision under review (Vavilov at para 90).
[18] The Court must avoid reassessing and reweighing the evidence before the decision maker; a decision may be unreasonable, however, if the decision maker “fundamentally misapprehended or failed to account for the evidence before it”
(Vavilov at paras 125-126).
[19] The party challenging the decision bears the onus of demonstrating that the decision is unreasonable (Vavilov at para 100). For the reviewing court to intervene, the party challenging the decision must satisfy the court that “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”
and that the alleged flaws must be “more than merely superficial or peripheral to the merits of the decision”
(Vavilov at para 100; Canada (Citizenship and Immigration) v Mason, 2021 FCA 156 at para 36). The reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”
(Vavilov at para 104).
VII. Analysis - The Decision was unreasonable considering the evidence before the Officer
A. NOC and Title
[20] At the hearing, the Applicant abandoned his argument that the Officer did not assess the application under the correct NOC and title and conceded “it was actually assessed under the correct NOC Code”
.
B. Weak establishment in India
(1) Family Ties
[21] In its Decision to refuse the work permit application, the Officer was not satisfied that the Applicant would leave Canada at the end of his stay because the Applicant has “weak establishment in India”
. In the GCMS notes, the Officer states:
PA is 43 year-old, married adult male From India. […] PA has weak establishment in India, Although he is working India, he does not explain why and how this will motivate him to leave Canada at the end of his stay Based on an overall review, on balance, I am not satisfied that PA is well established in home country, that he demonstrates strong economic ties and pull factors to home country.
[22] The Applicant outlines that his Family Information form stated that he has a young son, aged about 11 years, a wife and elderly parents all residing in India, and fails to understand what made the Officer think that the Applicant will abandon them.
[23] The Respondent counters by arguing that, other than listing his family members in the required Family Information form, the Applicant failed to provide any affidavit explaining his family ties or any significant information regarding his familial connections in India or to demonstrate the strength of any of these ties. The Respondent relies on Perez Pena v Canada (Citizenship and Immigration), 2021 FC 491 [Perez Pena] where the Court held that the presence of the applicant’s parents and sister in their country of citizenship did not demonstrate that the applicant would return as there was no evidence to show what kind of relationship or ties the applicant had with them (Perez Pena at para 28). Respectfully, the case at bar is different from Perez Pena. In the present case, the Family Information form that was before the Officer stated that the Applicant’s son, wife and parents reside in India and there is no need or requirement for an affidavit to confirm the information provided by the Applicant in his Family Information form. However, the GCMS notes make no mention of the fact that the Applicant’s young son, wife and parents are all living in India and that the Applicant has no relatives in Canada (Ul Zaman v Canada (Citizenship and Immigration), 2020 FC 268 [Ul Zaman] at para 49). This would appear to contradict the Officer’s finding that the Applicant “has weak establishment in India”
since the Applicant has no family ties in Canada. The Officer failed to address this relevant positive factor in the GCMS notes, other than mentioning that the Applicant is a “married adult male”
. I find the Officer’s Decision unreasonable as negative factors must be weighed against any other factors identified in the record that might lead to a different conclusion (Ul Zaman at paras 49-51).
[24] Similar to the case before me is Rahmati v Canada (Citizenship and Immigration), 2021 FC 778, which I brought to the attention of the parties prior to the hearing, where the applicant was a married citizen of Iran who had two minor children. Justice Walker (as she then was) explains at paragraph 18:
[18] There is no explanation in the GCMS notes regarding the Officer’s reference to the Applicant’s family ties in Canada and in Iran as a basis on which she may decide to remain in Canada. I agree with the Applicant that the reference finds no basis in the evidence before the Officer. The Applicant has strong family ties in Iran and no family members or other ties in Canada. Her immediate family will not accompany her to Canada for the duration of her studies. I find that the Officer’s reliance on the Applicant’s family ties in Canada as a reason for refusal is a significant and reviewable error as it is neither intelligible nor justified.
[25] Moreover, in Cao v Canada (Citizenship and Immigration), 2010 FC 941 [Cao], the Court stated:
[8] In the case at bar, the officer has made no serious effort to test the strength of the applicant’s ties to China, especially given that he has no family elsewhere (Li v. Canada (Minister of Citizenship & Immigration), 2008 FC 1284, 76 Imm. L.R. (3d) 265 at paragraph 30), and that there is ample proof of the links that the applicant has with China, supported by the submission of all requisite documents, as well as extra documents:
a. The applicant has a wife and one child (the maximum possible, under China’s one-child policy) who would both remain in China;
b. The applicant’s parents and brother also remain in China; […]
[26] Given that the evidence of family ties was omitted from the Officer’s reasons and that it appears squarely to contradict the Officer’s finding of fact of “weak establishment in India”
, the Officer was required to justify its conclusion. The reasons read in conjunction with the record do not make it possible to understand the Officer’s reasoning on this critical point (Vavilov at para 103).
[27] In my opinion, the Decision is unreasonable as the Officer failed to justify their conclusion that the Applicant has weak establishment in India and that he does not demonstrate strong pull factors to India considering the record before them. A tribunal’s silence on contradictory evidence, like the Applicant’s young son in India, may cause a Court to intervene and infer the tribunal overlooked the contradictory evidence (Aghaalikhani v Canada (Citizenship and Immigration), 2019 FC 1080 at paragraph 24). The Decision is not justified in light of the factual record and unreasonable as it lacks a rational chain of analysis (Vavilov at para 102).
[28] In my view, this error is sufficiently central to the Decision to render it unreasonable (Vavilov at para 100; Yani v Canada (Citizenship and Immigration), 2024 FC 73 at para 10, citing Moradbeigi v Canada (Citizenship and Immigration), 2023 FC 1209 [Moradbeigi] at para 16).
(2) Economic Ties
[29] This Court has explained on multiple occasions that “relying on an economic incentive to come to Canada cannot be the determinative factor”
to refuse a work permit application given that the applicant has applied because they can earn more money in Canada than at their home country (Ul Zaman at para 53, citing Cao at paras 7-11 and Rengasamy v Canada (Citizenship and Immigration), 2009 FC 1229 at para 14).
[30] Given the above error is sufficiently central to the Decision to render it, in my view, unreasonable and that the above analysis is determinative of the matter at hand, the Court has not considered whether the Officer erred in concluding that the Applicant has not demonstrated strong economic ties to his home country (Moradbeigi at para 23).
VIII. Conclusion
[31] The application for judicial review is granted. The matter will be remitted for redetermination by a visa officer not previously involved in this matter.
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