Date: 20100120
Docket: IMM-2980-09
Citation: 2010 FC 54
Ottawa, Ontario, January 20,
2010
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
RANGA
JEEWANTHA WIJESINGHE
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision by a visa officer in Sri Lanka dated June 16, 2009 denying the
applicant’s application for a work permit pursuant to subsection 200 (1) of the
Immigration and Refugee Protection Regulations (IRPR) S.O.R./2002-227
because the applicant did not satisfy the visa officer that he would return to
his native Sri Lanka at the conclusion of his stay.
FACTS
Background
[2]
The
twenty-six (26) year old applicant is a citizen of Sri Lanka. The
applicant has been employed as a cook for about two years at the Saketha Medura
Baquet Hall at the time of his most recent application. The applicant completed
his O and A Levels of secondary school education and a four year diploma in
Hotel Management. The applicant states that he is fluent in English.
[3]
On
May 2, 2008 the applicant made his first application for a work permit. The applicant
obtained a positive Labour Market Opinion which confirmed an offer of
employment from Doncan Restaurants Inc., also known as Denny’s Restaurant,
located in Calgary, Alberta. The
applicant signed a contract of employment as a cook with Denny’s Restaurant for
$12 an hour for 40 hours a week. The visa officer, in considering the work permit
application, was not satisfied that the applicant was qualified to work in
Canada as a cook and denied his application on September 8, 2008.
[4]
The
applicant disagreed with the first refusal but did not challenge it. The
applicant states that the first visa officer based its views on the fact the
applicant “was functioning as a Commis II” [Commis is the
French term for a junior cook who works in a specific station and trusted to
take care of the station’s tools], and not as a “cook” at the time of the application.
[5]
The
applicant obtained a new labour market opinion on March 11, 2009 which
confirmed an offer of employment from the R&A Restaurant, also known as the
Copper Kettle, located in Regina, Saskatchewan. The applicant signed a
contract of employment as a “Kitchen helper” with the Copper Kettle on November
24, 2008. The Copper Kettle agreed to employ the applicant at a wage of $10.50
an hour for 44 hours a week. The applicant applied for a second work permit on
March 29, 2009 which was denied by a second visa officer on June 16, 2009.
Decision under review
[6]
The
applicant explained he was applying for a “Kitchen helper” position to allow
him time on the job to develop into a full time cook. The applicant stated his
intention to return to Sri Lanka at the conclusion of
his authorized stay. The applicant submitted that he had “numerous options” to
apply for permanent residence at the conclusion of his authorized stay.
[7]
The
visa officer was not satisfied that the applicant was a genuine temporary
worker and provided the following reasons:
PA has been following the path of
progressively higher position[s] in the culinary field since 2002. He would now
leave all that behind and attend to janitorial duties as well as washing and
cutting vegetables. Neither PA nor consultant explain how this would be
beneficial to his career in Sri
Lanka. Also of
concern is that the consultant states PA could pursue PR status in CDA if he
chose knowing full well that low skilled workers do not qualify for PR status
in CDA. Not satisfied that PA is a genuine temporary worker.
[8]
The
application for a work permit was therefore denied.
LEGISLATION
[9]
Subsection 11(1) of the Immigration and
Refugee Protection Act (IRPA), S.C. 2001, c. 27 requires a foreign national
to apply for a visa before entering Canada:
|
11. (1) A foreign national 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.
|
11. (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite
d’un contrôle, que l’étranger n’est pas
interdit de territoire et se conforme à la présente loi.
|
[10]
Subsection 22(2) of the IRPA permits a foreign
national to apply concurrently for temporary admission and permanent residence:
|
(2) An intention by a foreign national to become a
permanent resident does not preclude them from becoming a temporary resident
if the officer is satisfied that they will leave Canada by the end of the
period authorized for their stay.
|
(2) L’intention
qu’il a de s’établir au Canada n’empêche pas l’étranger de devenir résident temporaire
sur preuve qu’il aura quitté le Canada à la fin de la période de séjour autorisée.
|
[11]
Section
197 of the IRPR allows a foreign national to apply for a work permit at any
time before entering Canada:
|
197. A foreign
national may apply for a work permit at any time before entering Canada.
|
197. L’étranger
peut, en tout temps avant son entrée au Canada, faire une demande de permis
de travail.
|
[12]
Subsection
200(1) of the IRPR sets out the requirements for the granting of a work
permit to a foreign national:
|
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
(a) the
foreign national applied for it in accordance with Division 2;
(b) the foreign
national will leave Canada by the end of the period authorized
for their stay under Division 2 of Part 9;
(c) the
foreign national
(i) is described in
section 206, 207 or 208,
(ii) intends to
perform work described in section 204 or 205, or
(iii) has been
offered employment and an officer has determined under section 203 that the
offer is genuine and that the employment is likely to result in a neutral or
positive effect on the labour market in Canada; and
…
[Emphasis
added]
|
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 :
a)
l’étranger a demandé un permis de travail conformément à la section 2;
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;
c) il se
trouve dans l’une des situations suivantes :
(i) il est visé par
les articles 206, 207 ou 208,
(ii) il entend exercer
un travail visé aux articles 204 ou 205,
(iii) il s’est vu
présenter une offre d’emploi et l’agent a, en application de l’article 203,
conclu que cette offre est authentique et que l’exécution du travail par
l’étranger est susceptible d’avoir des effets positifs ou neutres sur le
marché du travail canadien;
…
|
ISSUES
[13]
The
applicant raises the following issue:
i.
Did the
visa officer commit a reviewable error by failing to consider all of the
evidence provided by the applicant and basing her assessment on an incorrect
application of the law?
STANDARD OF REVIEW
[14]
Dunsmuir
v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of Canada held
at paragraph 62 that the first step in conducting a standard of review analysis
is to “ascertain whether the jurisprudence has already determined in a
satisfactory manner the degree of [deference] to be accorded with regard to a
particular category of question”: see also Khosa v. Canada (MCI), 2009
SCC 12, per Justice Binnie at paragraph 53.
[15]
The
applicant raised questions relating to the reasonableness of a visa officer’s
fact or mixed fact and law findings. It is clear that as a result of Dunsmuir
and Khosa that such questions of are to be reviewed on a standard of
reasonableness: see also my decision in Randhawa v. Canada (MCI), 2006
FC 1294, at paragraph 10; Dhanoa v. Canada (MCI), 2009 FC 729, per
Justice Harrington at paragraph 11; Thomas v. Canada (MCI), 2009 FC
1038, per Justice Mosely at paragraph 9.
[16]
In
reviewing the officer’s decision using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, supra at paragraph 47, Khosa, supra,
at paragraph 59.
ANALYSIS
Issue: Did the visa
officer commit a reviewable error by failing to consider all the evidence
provided by the applicant and basing her assessment on an incorrect application
of the law?
[17]
The
applicant submits that the visa officer erred by limiting her assessment to the
fact that that the “Kitchen helper” position which the applicant sought in
Canada was at lower level then the position the applicant held in Sri Lanka,
without considering the reason the applicant applied as a “Kitchen helper”, and
the applicant’s intention to develop into a full time cook in Canada and
thereby gain Canadian experience.
[18]
The visa
officer’s decision stated, and I repeat for ease of reference:
PA has been following the path of a
progressively higher position in the culinary field since 2002. He would now
leave all that behind and attend to janitorial duties as well as washing and
cutting vegetables. Neither PA nor the consultant explain how this would be
beneficial to his career in Sri
Lanka.
[19]
It is
clear to the Court that the visa officer has failed to consider the evidence
that:
1.
the
applicant applied as a “kitchen helper” since his first application for a work
permit was denied because the visa officer found he was not qualified as a
“cook”; and
2.
the
applicant explained that he was applying as a “kitchen helper” so that he can
develop at the restaurant into a full-time “cook”, i.e. demonstrate to his
employer on the job that he has the qualifications.
This evidence explained why the applicant would accept a
lower level position as a “kitchen helper” which the visa officer failed to
take into account or address.
[20]
The visa
officer decision also held:
Also of concern is that the consultant
(the applicant’s immigration consultant) states PA could pursue PR (permanent
residence) status in CDA if he chose knowing full well that low skilled workers
do not qualify for PR status in Canada.
[21]
The Court
is of the view that the visa officer failed to consider the applicant’s
intention of gaining Canadian experience and becoming a “cook”. With this
qualification, with his experience, with his education, and with his alleged
fluency in English, the applicant would have the legal right to apply for permanent
resident status as a skilled worker after he returns to Sri Lanka at the conclusion of his work
visa.
[22]
Subsection
22(2) of IRPA provides that a foreign national can have a duel intention to
apply for temporary residence as well as eventually permanent residence and
that this intention to be a permanent resident cannot form the basis for
refusing a visa for temporary residence such as a work permit, as long as the
visa officer is satisfied that the applicant will leave Canada at the
conclusion of his work permit and not remain in Canada illegally: Rebmann v.
Canada (MCI), 2005 FC 310, per Justice Martineau at paragraph 25. Accordingly, it is illegal
for the visa officer to draw an adverse inference from the applicant’s future
intention to be a permanent resident as a basis for refusing the applicant’s
work permit.
[23]
The
failure of the visa officer to consider the applicant’s relevant evidence
renders erroneous the
factual and legal inferences which underlie the decision.
The officer’s decision is therefore unreasonable and cannot be sustained.
[24]
For these
reasons, the Court will allow the application for judicial review, set aside
the decision of the visa officer, and refer the matter back for redetermination
by a different visa officer.
CERTIFIED QUESTION
[25]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
The
application for judicial review is allowed. The decision of the visa officer is
set aside and the matter is referred back to a new visa officer
for redetermination.
“Michael
A. Kelen”
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