Date: 20090703
Docket: IMM-5552-08
Citation: 2009 FC 697
Vancouver, British Columbia, July
3, 2009
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
DEVINDER
SINGH BRAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This is an
application for judicial review pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision
by a delegate of the Minister of Citizenship and Immigration Canada, an
Immigration Officer stationed at the Canadian Consulate General in Chandigarh,
India (the Officer), whereby the Applicant’s application for a work permit was
denied.
[2]
The
Applicant is a 31-year-old citizen and resident of India. His family
is comprised of one brother, parents, grandparents, a wife of eight years, and
a 7-year-old son, all residents of India who have never resided
outside of India. He has no
relatives in Canada.
[3]
The
Applicant obtained a Bachelor of Arts degree in 1999 from the University of
Punjab, India, at which time he began to work on his family’s farm, and has
continually done and continues to do at present.
[4]
The
family farm is registered in the Applicant’s father’s name, valued at $294,000
in Canadian funds, and the Applicant expects to receive half as per Indian
custom provided he continues to work the farmland. Should he become unable to
work the farmland, title would devolve to his brother, and the Applicant and
his family would only be entitled to a minimal share of the income produced by
the farm, which the Applicant indicates would be sufficient to meet his
family’s day-to-day living expenses.
[5]
The
Applicant is eligible to receive an additional 20% of the family farmland
should he repay an $11,000 Canadian funds loan his father took out to invest in
the family farming business.
[6]
The
Applicant also owns farmland in India valued at $34,000 in
Canadian funds solely in his name. In addition, he holds gold valued at $10,000
in Canadian funds.
[7]
The
Applicant learned he was selected for a two-year construction helper position
available with a Canadian construction company in British Columbia. Duties
would include loading and unloading construction materials, assisting with
framing and building walls and roofs, piling salvaged materials, cleaning
construction sites, feeding machines, and other equipment use.
[8]
The
Applicant had intended to take the two-year construction helper position to
earn enough money in a short amount of time to repay his father’s $11,000 loan,
so that the Applicant could receive the additional 20% of the family farmland.
[9]
The
Applicant applied to the Consulate General of Canada for a work permit on
October 15, 2008. The Officer denied the application because he was not
satisfied that the Applicant would leave Canada upon the expiry of the work
permit, and because the Officer did not find the Applicant was sufficiently
established in India or had sufficient ties to India to show he would leave Canada
after the two year period.
[10]
Based
on the CAIPS notes and the information provided by the Applicant in his
application, I find that it was not reasonable for the Officer to find that the
Applicant was not sufficiently established in India or did not have sufficient
ties to India.
[11]
With
respect to the first concern cited in the CAIPS notes, the Officer erroneously
noted that the Applicant had not submitted any documents showing funds in his
own name. The Applicant provided the following documents and a related
supporting affidavit: a valuation of his father’s ancestral land and
explanation of the Applicant expecting to have half devolve to him; a valuation
of land in the Applicant’s name; a gold valuation; and bank documents showing
loans taken out to support farming operations, with a related explanation of
the Applicant receiving more of the ancestral land on the intended repayment of
his father’s loan.
[12]
The
Officer may have limited and interpreted “funds” to only mean monies saved in a
bank. Whether the Applicant had monies saved in a bank is a factor open to the
Officer to consider. However, in this case, the Officer should have taken into
account the other assets outside of monies in a bank for which the Applicant
gave evidence he possessed.
[13]
With
respect to the CAIPS notes on the Applicant’s low income and stark contrasts in
living and working conditions between India and Canada, the Applicant submits
that the Officer failed to assess ties according to the guidelines set out in
the Overseas Processing Manual 11, failed to consider that the Applicant had in
the past been successful in saving enough money to buy more land in his name,
and relied on generalizations and speculations on the economic condition of
farmers in India. I agree.
[14]
As
identified by the Applicant and argued in Li v. Canada (Citizenship and Immigration), [2008] F.C.J. No. 1625, 2008 FC 1284
(F.C.) at
paragraph 24, difference in salaries between India and Canada may indicate
incentive to stay only when the cost of living is also considered. Standard of
living in the home country is also important to determining where the Applicant
may be better off, as noted at paragraph 39 of Ogunfowora v. Canada
(Citizenship and Immigration), [2007] F.C.J. No. 637, 2007 FC 471 (F.C.).
[15]
Without
a stronger method of comparison such as cost of living between the Applicant’s
presumed low income in India and earnings in Canada, the Officer should not
have presumed overstay based on this factor, more particularly since the
evidence before the Officer showed that the Applicant was in the past in India
successful at acquiring enough wealth to purchase additional land.
[16]
Further,
while economic incentive to stay in Canada is a reasonable
consideration on the part of the Officer, as raised by the Applicant, the majority
of applicants would have some economic incentive to come work in Canada, and this
incentive therefore cannot so easily correlate with overstay since it is
inconsistent with the work permit scheme.
[17]
In
sum, the refusal of the work permit was based on erroneous findings of fact
which did not take into account the material evidence presented, and therefore
was unreasonable.
[18]
For
the above reasons, this application for judicial review is allowed, the
decision of the Officer dated October 16, 2008, refusing the Applicant’s work
permit is set aside, and the application for a work permit is referred to
another officer for re-determination.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this
application for judicial review is allowed and this matter is referred to a
different visa officer for re-determination.
“Danièle Tremblay-Lamer”
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