Docket: IMM-2454-11
Citation: 2012 FC 137
Ottawa, Ontario, February 2, 2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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AVTAR SINGH
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Mr.
Avtar Singh applied for a temporary work permit but was turned down because a
visa officer in Chandigarh, India believed that Mr. Singh did not meet the
necessary language requirements and that he would not leave Canada when his
permit expired. Mr. Singh argues that the officer’s decision was not supported
by the evidence before him and, therefore, was unreasonable. He also suggests
that the officer treated him unfairly by failing to provide him an interview
and by overlooking evidence.
II. Factual Background
[2]
In
2011, Mr. Singh submitted an application for a one-year temporary work permit
to work as a long-haul truck driver in Surrey, BC. He had 11
years’ experience previously working in Dubai as a heavy
duty truck driver.
[3]
The
Labour Market Opinion (LMO) on which Mr. Singh relied stated that the position
required functional English language skills. His duties would include:
• Inspecting
the truck and submitting reports;
• Reading
bills of lading;
• Maintaining
radio or telephone contact to receive instructions; and
• Maintaining
the truck log and keeping records of materials and products.
[4]
To
show he had the required language skills, Mr. Singh submitted:
• A
transcript of his secondary school marks from 1987 showing that he had received
a grade of 46 in English (25 marks constituted a pass);
• A
transcript of his matriculation examination marks from 1989, showing that he had
received a grade of 53 in English (33 marks constituted a pass); and
• A
note from a teacher stating that Mr. Singh had studied English for five years.
[5]
Mr.
Singh also provided evidence that he owns a house and land in India valued at
more than 11 million rupees, and that he has savings of more than 3.7 million
rupees. He has a wife, a 13-year-old son, and a 10-year-old daughter who live
in Dubai. His mother
and father live in India, and his brother lives in Canada.
III. The Officer’s Decision
[6]
The
officer’s notes disclose the following:
Weak ties – spouse and
children in Dubai. Only brother in CDA. No relatives
in EUR yet he shows some travel there. No satisfactory proof of language
ability. Savings account shows large balance – no explanation for
provenance of these funds. Applicant is a young single male. Weak
ties. Highly mobile. Low level of education. No satisfactory evidence of
any vocational skill or training shown in the application and accompanying
documents. I am not satisfied applicant would have any social or economic
incentive to depart Canada at the end of the period
authorized for stay.
Refused. (Emphasis added)
[7]
By
letter dated January 27, 2011, the officer refused the application because Mr.
Singh did not meet the language requirement. Further, the officer was not satisfied
that he would leave Canada when his permit expired, having failed to show
sufficient establishment in India.
IV. Was the officer’s decision
unreasonable or arrived at unfairly?
[8]
Mr.
Singh argues that the officer made factual errors and overlooked evidence
contradicting the officer’s conclusion. He points to the following:
• the officer
described Mr. Singh as a “young, single male” when the evidence showed he was
married with two children;
• the officer found that
Mr. Singh’s evidence of his English language skills was unsatisfactory but he
did not refer to the documentary evidence relating to Mr. Singh’s language
studies, nor to the fact that his working language in Dubai was English;
• the officer found
that Mr. Singh had “weak ties” to India,
but did not refer to the land and other assets Mr. Singh owns there, or his
parents; and
• the officer found
that Mr. Singh had no incentive to leave Canada, but did not refer to his
family in Dubai.
[9]
The
Minister submits that Mr. Singh simply failed to provide sufficient evidence to
support his application; any errors or oversights on the officer’s part were minor
and irrelevant to the result.
[10]
I
disagree.
[11]
The
officer concluded that Mr. Singh’s evidence relating to his language skills and
his incentives to leave Canada when his permit expired was insufficient.
However, the officer made no reference to any of that evidence, and made a
clear error about Mr. Singh’s marital status. Accordingly, it is not clear why
the officer turned Mr. Singh down. The officer’s decision is neither
transparent nor intelligible.
V. Conclusion and Disposition
[12]
The
officer’s decision was unreasonable because, without consideration of the
relevant evidence, it did not represent a defensible outcome based on the facts
and the law. I must, therefore, allow this application for judicial review and
order another officer to reconsider Mr. Singh’s application. Neither party
proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. The
application for judicial review is allowed. The matter is referred back for a
new hearing before a different officer;
2. No question
of general importance is stated.
“James
W. O’Reilly”
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