Date:
20130611
Docket:
IMM-10747-12
Citation:
2013 FC 627
Ottawa, Ontario,
June 11, 2013
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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Swaranjit
Singh GREWAL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], s 72(1), of a decision that
the applicant did not meet the requirements of the Temporary Foreign Worker
Class.
[2]
Mr.
Grewal is an Indian national. This is his third application for a temporary
work permit. He initially trained as a caregiver, but an application under the
Live-in Caregiver program was rejected in November 2007. After retraining and
acquiring experience working for a trucking company, he applied as a truck
driver but was rejected in July 2011. Mr. Grewal then secured a Labour Market
Opinion (LMO) for a job in British Columbia and in September 2012 again applied
to come to Canada on a temporary work permit as a long-haul truck driver. His
application was rejected on October 1, 2012. The visa officer was concerned
that he might overstay his permit and found that he did not have sufficient
command of English to carry out the duties of the position.
ISSUES:
[3]
The
issues before the Court were:
a. What is the
standard of review?
b. Did the visa
officer err in basing her assessment of the required language skills on the
general duties of NOC 7211 as listed on the Service Canada website rather than
on the specific duties for the position listed in the offer of employment?
c. Did the visa
officer err in concluding that the position required an IELTS overall band
level of five or by not explaining why the applicant’s CLB scores were
insufficient?
d. Did the visa
officer fail in procedural fairness by not providing the applicant with an
opportunity to address her concerns?
e. Did the visa
officer err in concluding that the applicant would not leave Canada at the end
of his authorized stay without considering the relevant fact that the
applicant’s immediate family were all in India?
[4]
The legislative and regulatory framework applicable to this case
is section 11 of IRPA and section 200 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR]:
Immigration and Refugee
Protection Act
S.C. 2001, c. 27
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Loi sur l’immigration et la
protection des réfugiés
L.C. 2001, ch. 27
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11. (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for any other document
required by the regulations. The visa or document may be issued if, following
an examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
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11. (1) L’étranger doit, préalablement à
son entrée au Canada, demander à l’agent les visa et autres documents requis
par règlement. L’agent peut les délivrer sur preuve, à la suite d’un
contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la
présente loi.
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Immigration and Refugee
Protection Regulations
SOR/2002-227
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Règlement sur l’immigration et
la protection des réfugiés
DORS/2002-227
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200. (1) Subject
to subsections (2) and (3) — and, in respect of a foreign national who makes
an application for a work permit before entering Canada, subject to section
87.3 of the Act — an officer shall issue a work permit to a foreign national
if, following an examination, it is established that
(a) the foreign national applied
for it in accordance with Division 2;
(b) the foreign national will leave
Canada by the end of the period authorized for their stay under Division 2 of
Part 9;
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200. (1) Sous
réserve des paragraphes (2) et (3), et de l’article 87.3 de la Loi dans le
cas de l’étranger qui fait la demande préalablement à son entrée au Canada,
l’agent délivre un permis de travail à l’étranger si, à l’issue d’un
contrôle, les éléments ci-après sont établis :
a) l’étranger
a demandé un permis de travail conformément à la section 2;
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;
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(3) An
officer shall not issue a work permit to a foreign national if
(a) there are reasonable grounds to
believe that the foreign national is unable to perform the work sought;
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(3) Le permis de travail ne peut être délivré à l’étranger dans
les cas suivants :
a) l’agent a
des motifs raisonnables de croire que l’étranger est incapable d’exercer
l’emploi pour lequel le permis de travail est demandé;
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A. Standard of
review;
[5]
The standard of review for an officer's determination of
eligibility under the temporary foreign worker program, including the
interpretation of Immigration and Refugee Protection Regulations
SOR/2002-227 section 200(3)(a), has been found in jurisprudence to be
reasonableness ((Dunsmuir v New Brunswick, 2008 SCC
9, at para 57; Khosa, 2009 SCC 12, at paragraph 59;
Grusas v Canada (MCI), 2012 FC 733 at paras 11-16). The standard of review
for procedural fairness is correctness (Canadian Union of Public Employees
(CUPE) v Ontario (Minister of Labour) 2003 SCC 29, at para 100; Sketchley
v Canada (Attorney General) 2005 FCA 404 at paragraph 53).
A. Did the visa
officer err in basing her assessment of the required language skills on the
general duties of NOC 7211 as listed on the Service Canada website rather than
on the specific duties for the position listed in the offer of employment?
[6]
The
applicant argued that several of the duties for NOC 7411 which the officer
listed in her reasons for decision were not duties for the specific job he was
offered, including obtaining permits for international cargo moves, using an
on-board computer, completing loading manifests and company bills of lading,
reading U.S. customs forms to find transport restrictions on particular
products, and filling in forms to explain why shipments could be unloaded when
there had been a mix-up in delivery instructions.
[7]
He
argued that this
Court has found that adding job duties not specified in the offer of employment
was an error (Tan v Canada (MCI), 2012 FC 1079, at para 42). Section
8.3 of CIC’s Temporary Foreign Worker Guidelines manual (available
online at http://www.cic.gc.ca/english/resources/manuals/fw/fw01-eng.pdf)
states that while an officer’s assessment is not limited to the LMO, the
officer should consider the particular job being offered. In addition, the
offer of employment in the present case indicated that the position required
driving as part of a two-person team or part of a convoy. The Officer should
have considered what impact being accompanied by other drivers would have on
the position’s language requirements.
[8]
The
respondent argued that it was within the officer’s discretion to assess the job
duties by referring to the NOC description as well as to the actual job offer
and the LMO. There was no contradiction or difference between these different
sources. The Court has found that a visa officer is under a duty to conduct an
independent assessment of the applicant’s ability to perform the work, pursuant
to IRPR 200(3)(a). A statement by the employer or by the applicant
cannot be binding on the officer (Chen v Canada (MCI), 2005 FC 1378 at
para 12).
[9]
Furthermore,
the respondent argued, Mr. Grewal acknowledges that section 8.3 of the CIC Temporary
Foreign Worker manual specifically says that the visa officer should not limit
the assessment to the LMO. Therefore, a visa officer may determine that an
applicant requires language ability different from that set forth in the LMO
and job offer if relevant to the performance of the job duties. The LMO and job
offer are not determinative of how the discretion will be exercised; they are
procedural preconditions to the exercise of discretion and part of the factual
landscape against which the application is assessed (Chhetri v Canada (MCI), 2011 FC 872 at para 17).
[10]
I
find that the officer clearly thought about the language requirements and
explained why she considered that a greater level of English ability was required.
Even if I might have concluded otherwise, I believe that this was a
transparent, intelligible conclusion which fell within the range of possible
outcomes.
B. Did the visa
officer err in concluding that the position required an IELTS overall band
level of five or by not explaining why the applicant’s CLB scores were
insufficient?
[11]
The
Canadian Language Benchmarks (CLB) are the national standard for describing,
measuring, and recognizing the English language proficiency of adult immigrants
and prospective immigrants for living and working in Canada. The IELTS are one
of several language tests which have been designated as being acceptable to
assess an applicant’s CLB score.
[12]
The
applicant argued that the Officer based her assessment solely on the IELTS
two-word phrases and on the applicant’s overall proficiency, without
considering the applicant’s differing abilities in listening, speaking,
reading, and writing. His scores were:
Date
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Listening
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Reading
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Writing
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Speaking
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Overall
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13/04/2011
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5.5
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4.0
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4.0
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5.0
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4.0
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[13]
The
IELTS website gives the following descriptions (http://www.ielts.org/test_takers_information/getting_my_results/my_test_score.aspx):
Band 4 – Limited User: basic competence is limited to
familiar situations. Has frequent problems in understanding and expression.
Is not able to use complex language.
Band
5 – Modest User:
has partial command of the language, coping with overall meaning in most
situations, though is likely to make many mistakes. Should be able to handle
basic communication in own field.
[14]
The
CLB
Companion Tables to the Canadian Language Benchmarks 2000 (http://www.language.ca/display_page.asp?page_id=550)
are more detailed, providing descriptions of the competencies at each
level with examples of many tasks which a person would be able to perform
[15]
The
applicant argued that the visa officer simply decided that he was a Limited User
and did not consider properly whether he could meet the actual job
requirements.
[16]
The
respondent argued that Mr. Grewal is asking the Court to reinterpret his IELTS
score based on the criteria for the Federal Skilled Worker Class and the
Canadian Experience Class, criteria which are not applicable to the temporary
foreign worker program. An application for a temporary work permit comes under
a regulatory regime which differs significantly from the above-mentioned
classes. The Court has previously cautioned that as the two processes and the
associated rights differ, care must be taken in applying the jurisprudence from
one to the other (Li v Canada (MCI), 2012 FC 484 at paras 23-25).
[17]
Findings on
language levels for temporary foreign workers are highly discretionary
decisions, on which there is little jurisprudence. Part 11 of the IRPR (“Workers”, sections 194-209), under which
the present case falls, does not provide guidance on assessing language
ability. The visa officer was required to make findings based on the evidence
before her and there is no evidence in the present case that she exercised her
discretion capriciously or unreasonably.
C. Did the visa
officer fail in procedural fairness by not providing the applicant with an
opportunity to address her concerns?
[18]
The
applicant noted that it is not generally a procedural fairness requirement that
work permit applicants be granted an opportunity to respond. However, he
argued, there are exceptions, for instance, where an officer’s concerns do not
arise directly from the IRPA or IRPR, when such an opportunity might be
appropriate (Li v Canada (MCI), 2012 FC 484). In this case, the Service Canada website does not list any
specific language requirements for NOC 7411. The applicant included
documentation of his secondary and post-secondary courses in English, which was
not referred to by the Officer in the reasons for decision, and he included his
IELTS results. He argued that there was nothing to suggest that the Officer
assessed the requirement by any objective standard; instead, she decided on her
own what level of English was required and that the applicant did not have this
level. Accordingly, procedural fairness required that she give him an
opportunity to respond.
[19]
The
respondent argued that the onus was on the applicant to satisfy the visa
officer of all elements of the application. Work permit applicants are not
generally granted an opportunity to respond, particularly when there is no
evidence of serious consequences, which has been found to be the case when
applicants are able to re-apply and there is no proof that doing so will cause
them hardship. Mr. Grewal presented no evidence to suggest that being forced to
re-apply would cause any serious consequences (Qin v Canada (MCI), 2002 FCT 815 at para 5; Masych v Canada (MCI), 2010 FC 1253 at para 30; Li
v Canada (MCI), 2012 FC 484 at para 31).
[20]
I
find that the visa officer’s decisions that first, the applicant’s IELTS
results equated to Band 4, not Band 5, and second, for this particular job Band
5 was required, did not diverge so far from the predictable as to be
procedurally unfair in the absence of a warning letter. It is not obvious what
other information the applicant could have provided that would have altered her
findings as to the language requirement. In addition, there is no lasting
consequence from this refusal, as the applicant can apply again if he wishes.
D. Did the visa
officer err in concluding that the applicant would not leave Canada at the end
of his authorized stay without considering the relevant fact that the
applicant’s immediate family were all in India?
[21]
The
applicant argued that the visa officer did not provide sufficiently clear
reasons for concluding that Mr. Grewal would not leave Canada. He argued that she appeared to have concluded that because he was young and single, and
Canada is wealthier than India, he would automatically breach Canadian law and
stay on, and this even though his family is all in India, he has maintained
stable employment in India, and he is educated. He submitted that the failure
to substantiate her conclusion rendered it unreasonable, being neither
transparent nor intelligible.
[22]
The
respondent argued that the
Officer considered all the relevant information. She assessed his work
experience in India, his young age, his being single, his being mobile, and his
socio-economic incentive to remain in Canada. The evidentiary onus was on him
and the visa officer was entitled to examine the totality of circumstances. The
weight assigned to the factors is discretionary; the officer is assessing the
broader picture (Nguyen v Canada (MCI), 2005 FC 1087 at paras 5-7; Ayatollahi
v Canada (MCI), 2003 FCT 248 at para 23).
[23]
I
find that the visa officer’s exercise of her discretion in assessing whether
the applicant was likely to leave on schedule was in line with the factual
evidence and the guiding jurisprudence. Her finding was not outside the range
of possible, acceptable outcomes and was, therefore, not unreasonable.
CERTIFIED QUESTION:
[24]
The
applicant has proposed that the following question be certified as a serious
question of general importance:
Where
an officer has concerns over whether an applicant is able to perform and carry
out the employment of a job offer, what are the standards, if any, that an
officer must use in determining a position language requirement?
[25]
The respondent opposes certification of these questions on the
grounds that there is no genuine disagreement on the
standard and that an answer would not be dispositive in this case. I agree and
do not certify a question.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application is denied. No question is
certified.
“Richard G. Mosley”