Date: 20090703
Docket: IMM-5551-08
Citation: 2009 FC 696
Vancouver, British Columbia, July
3, 2009
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
GURDIP
SINGH MINHAS
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 44-year-old citizen and resident of India. He is married
and has two children in India.
[3]
After
completing his grade 12 education, he joined the Indian army in 1985. He took
voluntary retirement from the Indian army 16 years later, in 2001, at which
time he took over the agricultural operations on his family’s farm.
[4]
The
Applicant’s parents have executed their wills in favour of him and have
appointed him trustee of their property located in Punjab, India, since the
Applicant in conjunction with his family are the only individuals who care for
the family farm. He has real property and other assets worth over $400,000 in
Canadian funds.
[5]
Between
January and March 2008, he learned of and was selected for a two-year
construction helper position available with a Canadian construction company in
British Columbia, which would include general labour duties such as loading and
unloading construction materials, piling salvaged materials, cleaning
construction sites, and assisting the company’s journeymen carpenters. The
construction company indicated the only skill required to do the job is the
physical ability to carry heavy loads.
[6]
The
Applicant applied to the Consulate General of Canada for a work permit on
October 14, 2008, and received the Officer’s written decision form letter dated
October 15, 2008, refusing the Applicant’s application for a work permit.
[7]
The
Officer’s Computer Assisted Immigration Processing System (CAIPS) notes, which
form part of the reasons for the Officer’s decision, state the following with
respect to the Applicant's work permit application:
PA is a 43 year old male with 3
sponsorable dependants.
PA has a mother, father, and sister in Canada.
PA took a pre-university exam in 1984.
PA has not had any further
education/training upgrading since that time.
PA has not submitted any documents to
show his work experience.
It appears that the PA has been a farmer
his whole life.
A basic level of English is a must for
day to day living in Canada. A complete lack of English
could also be a determent for the health and safety of the PA and others. It
appears from the documents submitted, that the PA does not have any language
ability.
There is a high family incentive for the
PA to remain in Canada past his date of authorized
entry.
There is a high economic incentive for
the PA to remain in Canada past his date of authorized
entry.
[8]
The
Applicant submits that it was not reasonable for the Officer to find that the
Applicant was unable to perform the work sought.
[9]
I
agree with the Applicant that he did provide documentation supporting his
ability to do the construction helper work, especially considering the skill
required is the physical ability to carry heavy loads.
[10]
Based
on the evidence before the Officer addressing the ability of the Applicant to
perform the work, it was not accurate to state that the Applicant had not
submitted any documents to show his work experience.
[11]
With
respect to the Applicant’s ability to perform the work of a construction helper
based on English language ability, the only reference to English language
skills before the Officer was the Applicant’s own affidavit in which he
attested that his intended employer informed him that knowledge of the English
language is not necessary to the job, and that the Applicant can perform the
job without English language skills. There was no evidence before the Officer
addressing the Applicant’s level of English language abilities; thus it was not
reasonable to conclude, based on his English language ability, that he could
not perform the work of a construction helper.
[12]
The
Applicant further submits that he had provided financial documentation, fixed
deposit receipts, and valuation reports for his house and farmland, and the
information that he is married and has two children. I agree with the Applicant
that this evidence ought to have allowed the Officer to assess the Applicant’s
extensive establishment in and ties to India.
[13]
In
addition, while higher salary in Canada is alluded to with the
remark “high economic incentive,” no consideration is given to the difference
in cost of living and living standard between Canada and India.
[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]
It was not
reasonable for the Officer, without a stronger method of comparison such as
cost of living between the Applicant’s presumed low income in India and earnings
in Canada, to presume overstay based on this factor especially since the
evidence before the Officer indicated that the Applicant while in India had some
assets to his name.
[16]
Further,
while economic incentive to stay in Canada is a reasonable consideration
on the part of the Officer, 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. I fail to see how the Officer made a serious attempt at evaluating
establishment and ties given the evidence before him.
[17]
In
sum, I find that the Officer did not take into account the material evidence
submitted, resulting in a refusal of a work permit based on a misapprehension
of the facts. Therefore, the decision is unreasonable.
[18]
For
the above reasons, this application for judicial review is allowed, the
decision of the Officer dated October 15, 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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