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Federal Court
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Cour fédérale
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Date: 20090610
Docket: IMM-5061-08
Citation: 2009 FC 621
Ottawa, Ontario,
June 10, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
ARWINDER
SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant was refused a work permit to
work in a relative’s restaurant in British
Columbia. He seeks
judicial review of that refusal. For the reasons that follow, his application
is allowed.
Background
[2]
The applicant,
Arwinder Singh, a native of Punjab province in India,
is the 26-year-old brother-in-law of the principal owner of the Mahek
Restaurant and Lounge located in Surrey,
British Columbia, his
prospective Canadian employer. Mr. Singh was offered a position as a Food
Preparer for a two-year term in connection with a positive Labour Market
Opinion (LMO) issued by Service Canada valid through 2010-09-04. In support of
his Work Permit application, filed at the Canadian Consulate in Chandigarh, India, on September 11, 2008, he included a
letter from his current employer, banking and property ownership records, and
educational records.
[3]
This was Mr. Singh’s
third failed application for a Work Permit for employment with Mahek
Restaurant. The two previous applications were refused because of a visa
officer’s concerns that Mr. Singh would not be able to perform the work of cook
described in the relevant LMO, and because he was “unable to adequately clarify
inconsistencies raised in [the] application” and failed to satisfy the visa
officer that “his stated reasons for visiting Canada were genuine.”
[4]
The most recent Work
Permit application was for a position as food preparer and not for cook, as in
the two previous applications.
[5]
The Work Permit
application now before the Court was refused by letter dated September 16,
2008. The visa officer’s stated reasons for the refusal are as follows:
You
have not satisfied me that you will leave Canada by the end of the period authorized for
your stay because:
·
you have not
demonstrated that you are sufficiently well established in your country of
residence
·
you have not
satisfied me that you have sufficient ties to your country of residence to
satisfy me that you would depart Canada at the end of the period authorized for
your stay as a temporary resident
[6]
The visa officer’ in
the Computer Assisted Immigration Processing (CAIPS) notes the applicant’s
family details, details of his prospective employment, as well his work
experience and educational qualifications. The notes include the following
considerations:
THIS IS SUBJ’S THIRD APPLICATION FOR A WP
TO GO TO THE SAME ER. LAST APPLICATIONS WAS SENT FOR A JR. ER IN CDA IS SUBJ’S
BRO-IN-LAW […] AT THOSE TIMES PA WAS APPLYING FOR THE SAME ER TO WORK AS A
CURRY TANDOORI COOK, BOTH TIMES, PAS WAS INTERVIEWED AND THE OFFICER FOUND THAT
PA DID NOT APPEAR TO BE AN EXPERIENCE COOK. PA NOW APPLIED FOR THE SAME ER AS A
FOOD PREPARER, NOT AS A COOK. DUTIES INCLUDE TO ASSIST THE RESTAURANT SPECIALTY
COOKS AMONG OTHER DUTIES. THIS WOULD APPEAR THAT THE ER, WHO HAPPENS TO BE HIS
BRO IN LAW AND SISTER HAVE TAILORED THE LMO FOR SUIT PA. PA HAS BEEN APPLYING
TO WORK FOR THIS ER SINCE 2006, UNSUCCESFULLY. FROM DOCS SUBMITGED, PA DOES NOT
APPEAR TO HAVE FUNDS OF HIS OWN, I AM NOT SATISFIED THAT PA IS ESTABLISHED IN
INDIA AND FURTHER, NOT SATISFIED THAT PA WILL LEAVE CANADA AT THE END OF PERIOD
OF AUTHORIZED STAY
REFUSED (sic)
Issues
[7]
The applicant raises
three issues:
a.
Whether the officer
breached the principles of natural justice or procedural fairness by not
affording the applicant an opportunity to address the officer’s concerns either
by way of letter or interview;
b.
Whether the officer
breached the principles of natural justice and procedural fairness by failing
to provide adequate reasons; and
c.
Whether the decision
of the officer was reasonable.
Analysis
[8]
I find that there is
no merit to the submission that the officer ought to have provided the
applicant with an opportunity to address his concerns. Justice Russell in Ling
v. Canada (Minister of Citizenship and
Immigration), 2003 FC
1198, discusses when a visa officer ought to provide such an opportunity. Relying
on Ali v. Canada (Minister of Citizenship and
Immigration), [1998]
F.C.J. No. 468, he noted firstly that there was no statutory right to an
interview, or any dialogue of the sort suggested here. Secondly, it was noted
that generally an opportunity to respond is available only when the officer has
information of which the applicant is not aware. As in Ling, that is
not the situation here. On the basis of the record before the Court, there was
no denial of procedural fairness in not providing the applicant with an
opportunity to address the officer’s concerns.
[9]
I am also of the view
that the officer’s reasons complied with his legal obligations. The adequacy of
reasons must be examined in the context of the decision. The duty to provide
reasons when assessing an application for temporary residence status has been
held to be minimal: da Silva v. Canada (Minister of Citizenship and Immigration), 2007 FC 1138. In this case, the
reasons, which includes the CAIPS notes, makes it clear to the applicant the
basis on which his application was denied; thus the fundamental objective of
providing reasons was met.
[10]
Lastly, the applicant
submits that the visa officer’s decision was unreasonable because the officer
failed to consider evidence of ties to India, namely, that he has savings in a bank
account, that he owns real property, and that his family lives there. The
applicant contends there was no serious attempt to assess this evidence. He
further adds that he was not found to have insufficient ties or establishment
in India on his previous applications, thus he
submits supporting his position that the officer erred in this regard in the
present application.
[11]
The respondent’s
position is that it was reasonable of the officer, on the evidence before her,
to conclude as she did with respect to whether the applicant would remain in Canada illegally. She expressed concern that the employer had altered
the LMO to suit the applicant, and was also concerned that the applicant did
not appear to have funds of his own. The respondent points out that the bank
book submitted by the applicant relates to a joint account; hence it was
reasonable of the visa officer to conclude the applicant had no funds of his
own.
[12]
In reply, the
applicant specifically takes issue with the visa officer’s note stating that
the employer “altered the LMO to suit the Applicant.” He points out that the
LMO is issued by Service Canada, not by the employer, and contends that the
fact that the employer is the applicant’s brother-in-law is irrelevant to
whether or not the applicant is liable to overstay his Work Permit.
[13]
The visa officer
seems to have made much of the fact that the applicant has made previous Work
Permit applications in connection with job offers from the same employer, and
that this employer is his brother-in-law. There are two potential problems
with this. Firstly, there is no obvious justification for treating Work Permit
applications like credit card applications, where one’s credibility diminishes
with every application made. Secondly, the visa officer’s suspicion concerning
the “modification” of the LMO was entirely speculative. It is fully possible,
and indeed likely, that the employer is in need of both cooks and food preparers.
It is not as if the two
occupations
are unrelated. Secondly, it is hardly surprising that a Canadian business in
need of workers from India would look to family members living there.
There is no obvious connection between the fact that the applicant is being
offered a job by a relative and whether he is likely to return to India and the officer fails to explain why she thought this was a
relevant fact.
[14]
While the officer is
entitled to substantial deference in reaching her opinion, when these concerns
are examined, I find that the decision reached does not fall within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law, as set out by the Supreme Court in Dunsmuir v. New Brunswick, 2009 SCC 9. I cannot say that the same result would
have been reached had the officer not placed weight on the applicant’s history
of previous work permits and the fact that the employer was a relative.
[15]
Accordingly, the
decision is quashed and sent back for determination by a different officer.
[16]
Neither party
proposed a question for certification nor is there one on these facts.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The decision is quashed and sent
back for a determination by a different officer; and
2. No question is certified.
“Russel
W. Zinn”
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