Date: 20100415
Docket: IMM-3899-09
Citation: 2010 FC 411
Ottawa, Ontario, April 15,
2010
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
JAIRO
ARIAS BRAVO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr.
Jairo Arias Bravo seeks judicial review of the decision rejecting his
application for a work permit. The applicant, a citizen of Costa Rica, first came
to Canada on October
21, 2002 as a visitor. He overstayed his three-day visa. Several months later,
on August 18, 2003, he made a refugee claim, which gave him the ability to work
in Canada. He worked
for Bryson Farms, an organic farm outside Shawville, Québec. His refugee claim
was rejected on June 8, 2004. He sought judicial review in the Federal Court,
but leave was denied on September 15, 2004. On November 27, 2004 he left Canada. His plane
ticket was purchased by Bryson Farms.
[2]
Even
though his departure was voluntary, s. 240 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations) deems the
removal order against him to have been enforced. This means that, under s.
52(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA),
he requires an Authorization to Return to Canada (ARC).
[3]
In
2006, he applied for a work permit, and was rejected because he worked illegally
for the employer who was now offering him work and the officer was not
convinced that he would go back to Costa Rica at the end of the
period. However, Bryson Farms has continued to want to employ him. It appears
that his combination of farming experience and language skills is unique. Accordingly,
in late April 2009, Mr. Arias Bravo, with the assistance of a legal
representative, made another application for a work permit.
[4]
Among
other documents, he submitted to the Canadian Embassy in Guatemala a covering
letter from his lawyer relating to the work permit, a form IMM-1295
(Application for a Work Permit), a Labour Market Opinion confirmation, as well
as another letter from his legal representative applying for an ARC. It is
notable that the fee for the work permit application was included in the
package, whereas the fee for the ARC application was not.
[5]
The
processing of the application for the work permit started shortly after the
dispatch of the package for it appears that by May 14, 2009 Mr. Arias Bravo had
been asked for a copy of some further documents.
[6]
Also,
according to a CAIPS notes entry on May 21, 2009, it appears that the applicant
provided some verbal explanations as to why he applied for refugee status and
that his intentions were to work for periods of seven months per year and
return to Costa
Rica.
He needs to earn money to pay for private university. It is not clear if this
information was divulged in the context of a formal interview or not. On May
19, 2009 a receipt for the $150 fee was issued to him. There is no indication
that the applicant referred to the ARC application or that he offered to pay
the fees related to said application.
[7]
The
immigration officer at the Canadian Embassy denied Mr. Arias Bravo’s
application. On the one-page refusal letter a box stating “You have not
demonstrated that your stay in Canada will only be temporary and that you will
return to your country at the end of your temporary employment” was checked.
[8]
The
applicant argues that the immigration officer failed to consider all the
relevant evidence, particularly the information contained in his ARC
application that could support his work permit application. He also says that
the reasons given for the refusal are insufficient and constitute a breach of
the officer’s duty of procedural fairness. Finally, he submits that the
decision was unreasonable because the officer only focused on the negative
aspects of his immigration history rather than the fact that he voluntarily
left Canada after the
decision rejecting his application for leave to seek judicial review of the
decision rejecting his refugee claim was issued. Also, there is no discussion
of his expertise and the urgent need of Bryson Farms.
[9]
The
standard of review of decisions of immigration officers reviewing temporary work
permit applications is reasonableness (Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir); Kachmazov v. Canada
(Minister of Citizenship and Immigration), 2009 FC 53 at para 8; Li v. Canada (Minister of
Citizenship & Immigration), 2008 FC 1284, 76 Imm. L.R. (3d) 265 (Li)
at para. 14). Questions of procedural fairness are reviewed on a standard of
correctness (Li, at para. 17; Ellis-Don Ltd. v. Ontario (Labour
Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221 at para. 65).
[10]
With
respect to his first argument, the applicant initially relied on the fact that
the CAIPS notes do not mention the ARC application to support his view that
said submissions were not considered at all. However, when the certified record
was filed, it became apparent that the officer had the said application in the
file before him or her.
[11]
I
do not need to decide whether, in the case of other applicants, the work permit
or the ARC application should be considered first if the two said applications
are duly completed and the fees paid in accordance with s. 294 of the Regulations.
Certainly, it would be inappropriate to reject someone’s work permit
application on the basis that they are not allowed to return to Canada under subs.
52(1) of IRPA if they simultaneously filed an ARC application. That,
however, was not the case here; as mentioned, although the CAIPS notes indicate
that Mr. Arias Bravo was deemed deported and not admissible to Canada, the reason
for rejecting his application was that there were concerns about him being a bona
fide “visitor”.
[12]
There
was a fundamental problem with the ARC application in this case. The $400 fee
was not sent with the documentation. Instead, the legal representative was
seeking directions from the Embassy on how to pay it. It would seem that, in
the absence of more specific instructions on the Embassy web site, or
elsewhere, her client could have paid the fee in the same way that the work
permit fee was paid. This is especially so when one considers that in his
written representations, the applicant states that he personally delivered both
applications to the Embassy. That said, given that the fee for the ARC
application was not paid, it seems that the Embassy had little choice but to
process the work permit application first and they cannot be faulted for
adopting this course of action.
[13]
There
is no affidavit from the immigration officer as to what he or she did or did
not do. However, there is a presumption that the decision maker reviewed all
the evidence before him or her. Whether the officer should have referred to this
application specifically in the reasons will be discussed when looking at the
second argument put forth by Mr. Arias Bravo.
[14]
However,
even if the Court were to assume that the presumption was rebutted here, the
Court is not convinced that, in the particular circumstances of this case, the
officer had to consider the information contained in the ARC application for
the applicant failed to indicate that the said representations were relevant to
his work permit application per se.
[15]
The
covering letter to the work permit application does not make any reference to
the ARC application. As mentioned, there is no indication that the applicant
referred to said application when he spoke with an officer on May 19, 2009.
Although his ARC application does mention that he has submitted an application
for a work permit (presumably the context for requesting the ARC), it does not
mention that its contents should be considered in assessing the work permit
application. In addition, on his IMM-1295 form, when asked to provide details
about whether he’d been “refused admission to, or ordered to leave Canada,” the
applicant gave a cursory, two-sentence answer (in Spanish) referring to his
failed refugee claim in 2005 and his first request for a work permit in
2006. Again, there was no reference to the ARC application or to the fact that
it contained explanations relevant to the refusal of his first work permit in 2006.
[16]
Moreover,
as noted by the respondent, the immigration officers authorized to review work
permit applications abroad do not necessarily have the authority to grant an
ARC. In effect, in the international region, only an immigration program
manager is vested with such authority. The fact that a limited number of people
can review such applications as opposed to issue work permits is clearly
mentioned at s. 6.5 of Chapter 1 of the Overseas Processing Operational Manual
filed by the applicant (p. 27). Thus, it may be that the officer assessing the
work permit application saw the ARC application on file and, knowing that he or
she had no authority to decide it, set it aside to be forwarded to the
appropriate person if he or she decided that the applicant was otherwise
eligible for a work permit. Again, in the absence of some indication that the
ARC submissions were directly relevant to his or her task in assessing the work
permit application, the Court is not prepared to conclude that this would constitute
a reviewable error.
[17]
Turning
now to the argument that the reasons justifying the refusal were insufficient,
it is well-established that the degree of procedural fairness required in the
context of a work permit application from abroad is minimal: Qin v.
Canada (Minister of Citizenship and Immigration), 2002 FCT 815 at para. 5; da
Silva v. Canada (Minister of Citizenship and Immigration), 2007 FC
1138, 161 A.C.W.S. (3d) 974. This reflects the fact that Mr. Arias Bravo, like
similar applicants, is free to apply for another work permit, on the basis of
improved information and documentation, at any time.
[18]
The
CAIPS notes, which are part of the reasons (see, e.g., Kalra v. Canada (Minister of
Citizenship and Immigration), 2003 FC 941, 29 Imm. L.R. (3d) 208 at para.
5), contain a summary of the application as well as information received from
Mr. Arias Bravo. The officer certainly was concise and not perfectly informed
given that he or she refers to the fact that the applicant made a PRRA application
whereas it is evident from p. 74 of the certified record that the applicant had
indeed waived that right before leaving Canada in 2004.
That said, his or her reasoning is clear enough, he or she looked at the
immigration history of Mr. Arias Bravo and was not satisfied that he met the
criteria set out at para. 200(1)(b) of the Regulations.
[19]
To
obtain his work permit pursuant to s. 200 of the Regulations, the
applicant had the burden of establishing not only that he had a genuine job
offer and a positive Labour Market Opinion, but also that he would leave Canada by the end
of the authorized period of his stay. The good faith and intention of Bryson
Farms are not at issue here. They are simply not relevant.
[20]
Given
the minimal duty of fairness owed in this case, I find that the decision does
meet the requirement to provide reasons even if barely.
[21]
The
case of Hara v. Canada (Minister of
Citizenship and Immigration), 2009 FC 263, 79 Imm. L.R. (3d) 27 is
distinguishable on its facts. Moreover, there was nothing of such significance
in the ARC application that it would require specific mention in the decision.
In cases such as this, the officer simply does not have to explain how he or
she dealt with the positive aspects of the application, he or she only needs to
explain why the permit is not granted so that the matter can be judicially
reviewed, if need be.
[22]
Finally,
Mr. Arias Bravo maintains that the decision is unreasonable. It is trite law
that on judicial review, when assessing the validity of a decision, the Court
must confine itself to the evidence before the original decision maker: see,
e.g., McNabb v. Canada Post Corp., 2006 FC 1130, at para. 51.
[23]
The
applicant submitted an affidavit from Ronalee Carey, a legal assistant, in
which she states: “[Bryson Farms] wished to support Mr. Bravo’s application for
permanent residence to Canada, but Mr. Bravo indicated that he preferred
to return to Costa
Rica
every year in order to assist in his family’s farming operation. In addition,
he did not want to spend winters in Canada.”
[24]
If
Bryson Farms was willing to assist him with an application for permanent
residence in the skilled worker class, and Mr. Arias Bravo would have had the
requisite number of points (something that was not argued before me) to
qualify, then it seems that his decision not to pursue permanent residence
strongly suggests that he intends to return to Costa Rica at the end of every
growing season. However, as far as I can tell, this relevant evidence was not
before the officer: it is not in the letters from the applicant’s legal
representative, nor was the affidavit of Ms. Carey or, ideally, one from the
owners of Bryson, submitted with the work permit application.
[25]
It
is well-established that one’s past history with Canadian immigration officials
is one of the best indicators of their likelihood of future compliance (Murai
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 186, 53 IMM. L.R. (3d) 218 at
para. 12). In Mr. Arias Bravo’s case, his history is at best ambiguous, if not
troubling: in 2002-2003, he first misrepresented his intentions in order to
obtain a visitor visa (see p. 103 of the certified record), then made a refugee
claim only to acquire a work permit (see p. 4 entry for May 21, 2009). That
certainly distinguished his case from others referred to by his counsel. It may
(or may not) be that he has since learned from his mistakes, but this was what
he had to show.
[26]
The
applicant is single, he has few assets in Costa Rica (bank balance of $1,894.71
(USD)) and his only tie to Costa Rica appears to be his
parents’ farm.
Thus, having reviewed the record before the officer, and considered particularly
the representations made in the ARC application, the Court cannot come to the
conclusion that the decision falls outside the “range of possible, acceptable
outcomes which are defensible with respect to the facts and law” (Dunsmuir,
at para. 47).
[27]
The
application for judicial review is therefore dismissed. Mr. Arias Bravo,
naturally, is free to make another application for a work permit including the
kind of new information put before the Court (see para. 24, above).
[28]
The
parties did not submit any questions for certification and the Court is
satisfied that this case turns on its own facts.
ORDER
THIS COURT ORDERS that:
1.
The
application is dismissed.
“Johanne
Gauthier”
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