Date: 20090918
Docket: IMM-4668-08
IMM-4669-08
IMM-4670-08
IMM-4675-08
IMM-4722-08
Citation: 2009 FC 938
Vancouver, British
Columbia, September 18, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
Docket: IMM-4668-08
RICO BAYLON
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
BETWEEN:
Docket: IMM-4669-08
JOHN CARREON
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
BETWEEN:
Docket: IMM-4670-08
JUAN DASTAS
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
BETWEEN:
Docket: IMM-4675-08
GLEN FUENTES
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
BETWEEN:
Docket: IMM-4722-08
ROMUALDO C. BAYLON
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicants are young citizens of the Philippines.
They are part of a group of approximately 40 persons who applied for a
Temporary Resident Visa in order to come and work at a fish processing plant
in Richmond, British Columbia. Their applications were
refused in decisions dated August 11, August 13, and September 17, 2008,
because they did not convince the Visa Officers that they would leave Canada at the end of their visas’
terms. They are now seeking judicial review of the officers’ decisions.
[2]
I
indicated at the end of the hearing that I would grant the application for
judicial review in file IMM-4668-08, deny it in files IMM-4722-08 and
IMM-4675-08, and reserved my decision in files IMM-4669-08 and IMM-4670-08. I
have now come to the conclusion that the application for judicial review should
be granted in file IMM-4670-08 and denied in file IMM-4669-08. These are my
reasons for so finding.
[3]
While each
of these files turns on its own facts and must accordingly be dealt with
separately, they also raise common issues and bring into play the same legal
principles. For that reason, they were heard together and will be dealt
with in a single set of reasons, with the appropriate distinctions to be made in
response to each individual’s own circumstances. A copy of these reasons
will accordingly be placed in each of the five files to which they relate.
I. The Facts
[4]
As
previously mentioned, all of the applicants are citizens of the Philippines who
received a two-year job offer from Gran Hale Fisheries, a fish processing
plant in British
Columbia. Their
tasks would be to cut, clean, and pack fish and other seafood products. The
applicants’ hourly wage would be $12, which is a lot more than their salary in
the Philippines. They all received a positive
Labour Market Opinion from Service Canada.
[5]
Mr. Rico
Baylon (file IMM-4668-08) was born in 1984. His elderly parents and most of his family
members reside in the Philippines. He is unmarried, has no
children or dependants. His grandparents and one of his aunts live near Vancouver. He has a college degree and
worked in the Philippines as sales representative at
Motorparts Unlimited in Camarines from January to December 2007, where his
salary was the equivalent of $75 a month.
[6]
Mr. John
Carreon (file IMM-4669-09) was born in 1984. He has elderly parents,
siblings, and a fiancée in the Philippines. He worked as a collection
agent for Executive Village in Lucena City from May 2003 to December 2007. His
monthly salary was equivalent to an amount between $315 and $340.
[7]
Mr. Juan
Dastas (IMM-4670-08) was born in 1970. He has a wife and three children in
his home country. One of his aunts lives near Vancouver. He worked in the Philippines as a utility worker at 4 NA
Alas Trading since January 2004. His salary was approximately $150 a month. He filed
a letter from his former employer stating that he will be hired back upon his
return.
[8]
Mr. Glen
Fuentes (IMM-4675-08) was born in 1981. He is unmarried, and has no
children or dependants. He worked as a janitor at NC Miguel-Fuentes Optical
from 2000 to 2002 and as a filing clerk at Selective Security Services since
2002. His salary was equivalent to approximately $240 a month. He claims to
have completed a bachelor’s degree in Agricultural Engineering in 2007 at Isabella State University.
[9]
Finally,
Mr. Romualdo C. Baylon (IMM-4722-08) was born in 1978. His father, three
siblings, and a grandfather live in Canada;
his mother is deceased. One of his two siblings still remaining in the Philippines is also seeking a work visa
for a job with the same employer. He declared that he has worked as a sales
representative for Kenrich Distributor Co. from 1999 to 2000, as a sales
associate at Phil Gear Int’l Inc. from October 2000 to March 2001 and as a
sales executive at Kumbawa Sales Marketing from May to October 2007. At the
time of filing his visa application, his salary was equivalent to approximately
$150 a month.
II. The Decision under Review
[10]
The
decisions in these five visa applications were made by three different Visa
Officers. They all refused the work permit visas on the ground that they were
not satisfied that the applicants would leave Canada at the end of the
authorized period, pursuant to subsections 20(1)b) of the Immigration and
Refugee Protection Act and 200(1)b) of the Immigration and Refugee
Protection Regulations. They came to that conclusion essentially because of
the applicants’ weak economic ties with their country of origin.
[11]
The
standard letter sent to each of the applicants provides very little in terms of
an explanation for the decision reached. It merely checks the box stating: “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 ties that would satisfy me of your
intention to return.” The CAIPS notes, however, are a little more detailed.
These notes are also supplemented by an affidavit sworn by each Visa Officer
elaborating on the reasons for their decisions. I will now briefly summarize
these reasons for each of the applicants.
[12]
With
respect to Mr. Rico Baylon, the Visa Officer first noted that he did not
indicate that his brother was filing a similar application. She also
expressed doubt as to his recent employment, as the applicant did not provide
any employment certification in support of it. In her view, his employment
prospects in his country appear uncertain as his only work experience is in
salesmanship while he has a college degree in criminology; indeed, she added
that the applicant did not seem to be working at the time he filed his
application. The Officer also stressed that he is unmarried, is not in a
common-law relationship with anybody, and has no children. The applicant and
his brother gave each other’s address in their application forms, and his
declared address is ten hours away by road from the site of his declared
employment. For all of these reasons, she was not satisfied that the applicant
has strong incentives to leave Canada at the end of his authorized
stay.
[13]
As for Mr.
John Carreon, the Officer was similarly not convinced that he had strong
incentive to leave Canada at the end of his authorized
stay, for the following reasons. First, he is unmarried, has no common-law
relationship and no children. He also has an aunt living in Canada. His salary in the
Philippines is low for someone with a college education, and he has held the
same low-skilled position for five years without any advancement, which
demonstrates weak economic ties with the Philippines. Moreover, there is a concern with the
credibility of his work experience, as his declared address residence is four
to five hours away from where he allegedly works.
[14]
Mr. Juan
Dastas was also found not to be established in the Philippines for a variety of reasons. Although
he is married with three dependent children, there is a significant gap in his
employment history (from 1994 to 2004). He has little education, a low monthly
salary, a low skilled job, and he twice failed the English class in high
school. In her affidavit, the Visa Officer also notes that “…it is not uncommon
in the Philippines for one or both parents to
work overseas for long periods of time, sometimes several years. In the
Filipino culture, the presence of family members is not a strong pull factor.”
She considered that his expected income and his close relatives in Canada are strong pull factors that
would increase the incentive to remain in Canada, especially since it is also uncertain
whether he would find employment upon return.
[15]
Mr. Glen
Fuentes’ application was rejected on the basis of many factors. First of
all, he has never been married and has no dependents. His employment
certificate for his job at NC Miguel-Fuentes Optical was not of the normal
official format, did not have usual contact information, and the signatory
bears the same surname as the applicant. Therefore, the Visa Officer questioned
the reliability of this document. The applicant’s other employment certificate
was also not of the normal official format: it had no date of issue, and was
signed by the General Manager and not a human resource officer. The Officer was
of the view that it could also have been generated from a home computer. She
also found not credible that such a small business would be able to guarantee
the same job after two years. The applicant also declared that between 2002 and
2007, he had been working full time in Cainta, Rizal, as well as studying full
time in Echague, Isabella. But the two cities are at least an eight-hour bus
ride away from each other. The Visa Officer added that the applicant had weak
economic ties with the Philippines. His salary is low for
someone with a college education. He continued working in an unrelated
low-skilled position after his graduation. He wants to leave this position for
another low-skilled unrelated position in Canada with a substantial increase of income.
This experience will not provide him with greater skills, nor will it improve
his employability upon his return. His weak economic establishment in the
Philippines therefore decreases the incentives for him to depart from Canada at the end of his authorized
stay.
[16]
Finally,
Mr. Romualdo C. Baylon’s application was also rejected because of his
extremely weak ties to the Philippines. He has never been married,
and has no children or dependents. The Visa Officer stressed that of the eight
family members listed only two siblings remained in the Philippines, one of whom also seeks to
come to Canada to work for the same
employer. Moreover, the applicant was unemployed for the nine months
immediately preceding his application and has only been employed for a period
of six months since 2001. In his affidavit, the Visa Officer also stressed that
the applicant spent seven years in post-secondary educational institutions but
did not complete the degree requirements of any discipline he studied. He has
therefore not forged any economic stability, nor has he displayed any
propensity for manual labour.
III. Issue
[17]
The only
issue to be determined in all five cases is whether the Visa Officers erred in
coming to the conclusion that none of the applicants fulfilled the requirements
for the temporary resident work permit visa they had applied for. More
particularly, this Court is called upon to assess the reasonableness of the
Visa Officers’ finding that the applicants have not established that they would
be leaving Canada at the end of the period
authorized for their stay.
IV. The Statutory Framework
[18]
A foreign
national seeking to enter Canada must establish that they meet
the requirements of the Immigration and Refugee Protection Act (S.C.
2001, s. 27, s. 11(1)). Section 20(1)b) of the Act sets out the obligation to
be fulfilled by a foreign national who wishes to enter Canada:
|
20. (1) Every foreign
national, other than a foreign national referred to in section 19, who seeks
to enter or remain in Canada must establish,
(a) to become a permanent resident, that they hold
the visa or other document required under the regulations and have come to
Canada in order to establish permanent residence; and
(b) to become a temporary resident, that they hold
the visa or other document required under the regulations and will leave Canada by the end of the
period authorized for their stay.
|
20. (1)
L’étranger non visé à l’article 19 qui cherche à entrer au Canada ou à y
séjourner est tenu de prouver :
a) pour
devenir un résident permanent, qu’il détient les visa ou autres documents
réglementaires et vient s’y établir en permanence;
b) pour
devenir un résident temporaire, qu’il détient les visa ou autres documents
requis
par règlement et aura quitté le Canada
à la fin de la période de séjour autorisée.
|
[19]
The worker class is a
class of temporary residents and is described in Part 11 of the Immigration
and Refugee Protection Regulations (SOR/2002-227). In order to obtain a
work permit, a foreign national must, inter alia, establish both of the
following conditions:
|
200. (1) Subject to
subsections (2) and (3), an officer shall issue a work permit to a foreign
national if, following an examination, it is established that
[…]
(b) the
foreign national will leave Canada by the end of the period authorized for their stay under
Division 2 of Part 9;
(c) the
foreign national
[…]
(iii) has been offered employment and an officer has
determined under section 203 that the offer is genuine and that the
employment is likely to result in a neutral or positive effect on the labour
market in Canada;
|
200. (1) Sous
réserve des paragraphes (2) et (3), l’agent délivre un permis de travail à
l’étranger si, à l’issue d’un contrôle, les éléments suivants sont établis :
[…]
b) il
quittera le Canada à la fin de la période de séjour qui lui est applicable au
titre de la section 2 de la partie 9;
c) il se
trouve dans l’une des situations suivantes :
[…]
(iii) il s’est vu présenter une offre d’emploi
et l’agent a, en application de l’article 203, conclu que cette offre est
authentique et que l’exécution du travail par l’étranger est susceptible d’avoir
des effets positifs ou neutres sur le marché du travail canadien;
|
[20]
According to the
policy guideline of Temporary Foreign Worker Guidelines dated April 21, 2008,
the Low-Skilled Pilot Project has been designed to fill the shortage of low-skilled
workers by permitting the hiring of low-skilled workers from overseas. The
rationale for that policy is spelled out in the following terms:
At
present, Canada is experiencing a period of dramatic
change in the labour market. The increased demand for higher-skilled workers
has left a void in one sector of the labour market and has led employers to
seek workers outside of the traditional labour markets. The Low-Skilled Pilot
Project is a labour-market-driven risk-management strategy aimed at filling
this void by permitting the hiring of low-skilled workers from overseas. When
assessing LSP applications, officers are to be mindful of the compelling policy
objectives addressed by this pilot project and to balance potential risks
against the very real benefits to the Canadian economy.
[21]
According to that policy,
the assessment of an application requires answering two basic questions: “does
the applicant intend to do the job and do they have the ability to do the job?”
This is not in question in any of the five files we are here dealing with.
[22]
More relevant for our
purposes is the reminder that visa officers must also ensure compliance with
section 200(1) of the Regulations. The oolicy states the following in that
respect:
Section
200(1) of the Regulations provides that a visa officer shall issue a work
permit to a foreign national if, following examination, it is established
that (among other things) the foreign national will leave Canada by the end of the period authorized for their stay. The standard
of proof in this regard is the civil standard of “balance of probabilities” or
“more likely to than not”.
[23]
It is with this
framework in mind that I now turn to the review of the Visa Officers’ decisions
in the five files that are the subject of the current proceedings.
V.
Analysis
[24]
A visa officer’s
assessment of the application for a work permit involves an exercise of
statutory discretion which should be given a high degree of deference. Therefore,
the appropriate standard of review of a visa officer’s decision is that of
reasonableness. This is indeed the standard that previous jurisprudence of this
Court has applied to the review of such decisions: see Choi v. Canada
(Minister of Citizenship and Immigration), 2008 FC 577; Angeles v. Canada (Minister of Citizenship and
Immigration), 2009 FC
744. Accordingly, the Court ought to defer to a visa officer’s decision if his
or her findings are justified, transparent and intelligible, and fall within
the range of possible outcomes given the evidence as a whole: Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47.
[25]
Assessing first the
decision reached in the case of Mr. Rico Baylon, it was alleged that the Visa
Officer’s appraisal of his work permit application was unreasonable because
that officer ignored relevant evidence. I agree with the respondent that the
onus was on Mr. Baylon to satisfy the Visa Officer that he would depart Canada at the end of the period authorized for any temporary work
in Canada. In assessing whether the applicant had
discharged this onus, the Visa Officer was entitled to examine the totality of
circumstances relating to his case. The extent of the applicant’s financial and
other ties to Philippines, his age, family circumstances and
employment were all relevant factors for the Visa Officer to consider. Whether
an applicant has an incentive to remain in Canada and local conditions in
the applicant’s home country are parts of the broader picture that a visa
officer ought to consider in assessing whether an applicant will leave Canada at the end of the period authorized for any temporary stay.
Moreover, the weight to be assigned to the factors was a matter for the Visa
Officer’s discretion, and is not a basis for judicial review.
[26]
That being said, the
Visa Officer overlooked an important piece of evidence. Both in his CAIPS
notes and in his affidavit, the Visa Officer mentions that Mr. Baylon did not
provide documentary evidence to support his declared employment. Yet Mr. Baylon
refers to a letter of his employer in his statement to the Visa Officer,
and the Tribunal Record contains a certificate of employment attached to
the applicant’s statement. Not only does this certificate confirm that Mr. Baylon
has been an employee of Motorparts Unlimited from January to December 2007, but
it also states that a position would still be available to him “anytime he
desired to.”
[27]
At the hearing,
counsel for the respondent conceded that this was an important omission, to the
extent that the lack of an employment certificate and the limited employment
prospects of the applicant appear to have been important factors in the
decision of the Visa Officer to refuse his application for a temporary work
permit. On that basis, counsel for the respondent also agreed that this
application for judicial review should be granted. Accordingly, this matter
shall be referred back for reconsideration by a different visa officer.
[28]
As for Mr. Glen Fuentes and Mr. Romualdo C. Baylon,
I have concluded that their applications for judicial review are without merit.
In both of these cases, I am satisfied that the Officers considered all the
evidence provided. They weighed the various facts and simply came to a different
conclusion from that which the applicants would have preferred. They did not
ignore the employment offer, the family situation, or the work experience of
the applicants. The Officers also relied on the general employment situation in
the Philippines, which is part of the general
context that an officer examining work visa applications has to take into
account. The Officers then drew inferences from all this information and came
to their conclusions. I can find nothing unreasonable in their assessment,
bearing in mind that the onus was on the applicants to prove they will leave Canada at the expiration of their
work visa.
[29]
Turning then to the
application of Mr. John Carreon, I have not been persuaded that
the Visa Officer’s decision does not fall within the range of possible outcomes
on the basis of the evidence that was before him. Mr. Carreon’s personal ties to
the Philippines are very weak since he has never been
married, has no children, and is not in a common-law relationship. The fact
that he earns a low salary, even for Philippines’ standards, should not be held against
him since this is an inevitable consequence of being a low-skilled worker.
The Visa Officer noted, however, that his employment progression and
prospects are limited, considering that he has held the same low-skilled
position for five years (the Visa Officer mistakenly wrote eight years) without
any advancement. While I may have come to a different conclusion, this is not
the test to be applied. It was not unreasonable to conclude, as the Visa
Officer did, that leaving his occupation to work in another low-skilled job in
Canada unrelated to his education (a college degree in computer science) but
with a substantial difference in his expected income, and the presence of a
relative in Canada, would increase the applicant’s incentives to remain in
Canada after his authorized stay here. This conclusion is somewhat strengthened
by the credibility issue with respect to his declared work experience. The
applicant’s declared residential address is apparently four to five hours away
from his workplace. While the Visa Officer decided not to pursue verification
of this issue because it would not have changed the outcome of his assessment,
it is nevertheless a factor that plays against Mr. Carreon in this application
for judicial review.
[30]
Finally, I turn to
the case of Mr. Juan Dastas. This is a more difficult case, because the personal
circumstances of the applicant bring it closer to the line. Despite the high
degree of deference owed to the Visa Officer, I have nevertheless come to the
conclusion (albeit with much hesitation) that it was unreasonable to find that
it is more likely than not that Mr. Juan Dastas will not go back to the
Philippines at the end of his authorized stay in Canada. I have come to this
conclusion for the following reasons.
[31]
First, Mr. Dastas has
a wife, three children and four siblings in the Philippines.
While I appreciate that leaving parents behind is no guarantee that a person
will go back to his homeland (especially when that person is 39-years-old), the
same cannot be said when the persons left behind are a wife and three young
children. This should clearly be a strong “pull” factor, in the absence of any
evidence tending to show that the marriage is falling apart and/or that the
children are no longer dependents of their parents. No such evidence was before
the Officer.
[32]
As for the
applicant’s economic ties, the Officer noted that his monthly salary is very
low. As previously mentioned, I do not think this factor should be held against
Mr. Dastas, as it is in the nature of things for low-skilled workers. More
troubling is the fact that there is a ten-year gap in Mr. Dastas
employment history (he did not declare any employment between 1994 and 2004).
This, coupled with the applicant’s low level of education, would tend to
demonstrate narrow employment prospects in the Philippines.
On the other hand, Mr. Dastas has been steadily employed for the last four
years, and he declared in his written statement to the Visa Officer that his
current employer was offering him a job upon his return to the Philippines
(that letter was not part of the Tribunal Record but was included in the
Applicant’s Record). Moreover, as counsel for the applicant contended, Mr. Dastas
must have been working during that ten-year period to sustain his family, since
his wife appears to be staying home.
[33]
In her affidavit, the
Visa Officer states that leaving family behind is not a strong incentive to return
to the Philippines, as “it is not uncommon in the Philippines for one or both parents to work overseas
for long periods of time, sometimes totaling several years.” She adds: “In
fact, over a million Filipinos every year reside and work abroad, most of them
in low-skilled occupations. Separation from close family members due to
overseas work is accepted and common place.”
[34]
This extraneous
evidence is unsupported and undocumented, and in any event irrelevant. I accept
that local conditions in the applicant’s home country can be part of the broader
picture which the Visa Officer ought to consider in assessing whether an
applicant will leave Canada at the end of the period authorized
for any temporary stay. But the mere fact that many low-skilled workers from
the Philippines work overseas does not, in and of
itself, mean that they overstay their authorized work permit, let alone that
they live illegally in other countries. Oversimplified generalizations cannot
and should not form the basis of what must always be an individualized
assessment based on the particular circumstances of each individual. For all of
these reasons, I am of the view that this application for judicial review
should be granted.
ORDER
THIS COURT ORDERS that:
·
the
applications for judicial review in file numbers IMM-4668-08 and IMM-4670-08
are granted, and these files are to be remitted back to a different visa
officer to be reconsidered;
·
the
applications for judicial review in file numbers IMM-4669-08, IMM-4675-08 and
IMM-4722-08 are dismissed.
“Yves
de Montigny”
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