Docket: IMM-3846-13
Citation:
2014 FC 465
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Montréal, Quebec, May 14, 2014
Present: The Honourable Mr. Justice Shore
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BETWEEN:
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RUN, MADEN
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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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JUDGMENT AND REASONS
I.
Preliminary
[1]
The Federal Court of Appeal recently confirmed
that, to be sufficient, reasons must allow the reviewing court to understand
why a decision-maker made a decision and then determine whether the
decision-maker’s finding falls within a range of acceptable outcomes (Lebon v
Canada (Minister of Public Safety and Emergency Preparedness), 2012 FCA 132
at para 18).
[2]
The Court considers that the officer’s reasons
are not adequate and do not meet the tests of justification and intelligibility
set out by the Supreme Court of Canada in Newfoundland and Labrador Nurses’
Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708; even when they are examined together with the outcome. The decision
is essentially a summary of facts. The reasoning behind the decision is, at
best, obscure. The officer’s notes do not explain why the decision was made.
[3]
Although the reasons make it clear that the
officer had concerns on some aspects of the evidence in the record, they do not
explain how these concerns formed part of its final conclusion. Was the decision
in fact a negative finding on the applicant’s credibility or was it rather based
on a lack of evidence that the applicant could meet the employment requirements
for a potential job in Canada? The reasons still have not been explained.
II.
Introduction
[4]
This is an application for judicial review filed
under subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA) of a decision in which a visa officer refused the applicant’s
work permit application.
III.
Facts
[5]
The applicant, Maden Run, is a citizen of
Cambodia born in 1980.
[6]
The applicant allegedly had worked as a cook in
Cambodia for the restaurant Food and Beverage Center Gallery Café (FBC) since
2010. Before 2010, he worked for the Arunras restaurant as dishwasher and cook.
[7]
On April 24, 2012, the applicant received an
employment offer from the restaurant Chez Vanna, located in Québec, Quebec.
[8]
In December 2012, the applicant filed an application
for a temporary work permit with the Canadian Embassy in Bangkok to work as
head cook in the restaurant Chez Vanna. On April 5, 2013, the officer
refused the visa application.
[9]
January 30, 2013, the applicant filed this application
for judicial review with respect to that decision.
IV.
Decision under review
[10]
The officer first determined that the applicant had
not established that he had the professional experience required to perform the
prospective job at the restaurant Chez Vanna in Québec. In her notes from the Global
Case Management System (GCMS), the officer noted deficiencies in the evidence submitted
by the applicant that undermined his credibility. In particular, the officer
noted that the applicant’s employment certificates were contradictory with
respect to his employment status. Further, the applicant could not identify the
Arunras restaurant when he was shown a photo at his interview, despite the fact
that he had worked at this place for 10 years. She also noted that the applicant
had not provided additional evidence of his training as a cook, despite a specific
request from the Canadian Embassy.
[11]
The officer was also not persuaded that the
applicant would return to his country of origin after the duration of his stay
in Canada.
V.
Issue
[12]
Is the officer’s decision reasonable?
VI.
Relevant statutory provisions
[13]
Article 11 of the IRPA applies in this case:
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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
visas 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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[14]
Paragraph 200(3)(a) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 also applies in this case:
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Exceptions
(3) An officer shall not issue a work
permit to a foreign national if
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Exceptions
(3) Le permis de travail ne peut être délivré à l’étranger dans
les cas suivants :
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(a) there are reasonable grounds to believe that the
foreign national is unable to perform the work sought;
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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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VII.
Standard of review
[15]
The decisions of visa officers on temporary work
permits are reviewable on a standard of reasonableness (Grusas v Canada (Minister
of Citizenship and Immigration), 2012 FC 733; Dhillon v Canada (Minister
of Citizenship and Immigration), 2009 FC 614).
VIII.
Analysis
[16]
According to the applicant, the visa officer erred
in neglecting to explain why he had not discharged his burden of proof to establish
that he could meet the requirements of the prospective employment at Chez
Vanna. He submits that she also disregarded the evidence in the record in not
asking enough questions to his employer regarding his employment during her
visit to his place of work.
[17]
After examining the evidence on the record, the notes
from the GCMS, and the letter of refusal, the Court considers that the officer’s
decision is unreasonable.
[18]
The Supreme Court of Canada recently dealt with
the main issue raised by the applicant with respect to adequacy of reasons in Newfoundland
and Labrador Nurses’ Union, above. In Newfoundland and Labrador Nurses’
Union, the Court found that the “adequacy" of
reasons is not a stand-alone basis for quashing a decision. Rather,
based on the entirety of the records, the reasons must be “read together with the outcome and serve the purpose of
showing whether the result falls within a range of possible outcomes” (at
para 14).
[19]
Moreover, the Federal Court of Appeal recently confirmed
that, to be adequate, the reasons must allow the reviewing court to understand
why a decision-maker made a decision and then to determine whether the decision-maker’s
finding falls within a range of acceptable outcomes (Lebon, above at para
18).
[20]
The Court also agrees with the comments of
Justice Yves de Montigny in Canada (Minister of Citizenship and Immigration)
v Jeizan, 2010 FC 323, 386 FTR 1:
[17] Reasons for decisions are adequate
when they are clear, precise and intelligible and when they state why the
decision was reached. Adequate reasons show a grasp of the issues raised by the
evidence, allow the individual to understand why the decision was made and
allow the reviewing court to assess the validity of the decision: see Lake
v. Canada (Minister of Justice), 2008 SCC 23, [2008] S.C.J. No. 23
at para. 46; Mehterian v. Canada (Minister of Employment and
Immigration), [1992] F.C.J. No. 545 (F.C.A.); VIA Rail Canada Inc. v.
National Transportation Agency, [2001] 2 F.C. 25 (F.C.A.), [2001] 2 F.C. 25
(C.A.), at para. 22; Arastu, above, at paras. 35-36.
[21]
In this case, the Court considers that the officer’s
reasons are not adequate and do not meet the tests of justification and intelligibility
set out in Newfoundland and Labrador Nurses’ Union; even when they are reviewed
together with the outcome. The decision is essentially a summary of facts. The
reasoning behind the decision is, at best, obscure. The officer’s notes do not
explain why the decision was made.
[22]
Although it is clear from her reasons that the
officer had concerns on a few aspects of the evidence in the record, they do
not explain how these concerns formed part of her final conclusion. Was the decision
indeed a negative finding of the applicant’s credibility or was it instead
based on a lack of evidence that the applicant could meet the requirements for
the potential job in Canada? The reasons have still not been explained.
[23]
Since the reasons have no justification or
intelligibility, it remains impossible for the Court to determine whether the decision
in this case falls within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law. The Court’s intervention is thus
warranted.
IX.
Conclusion
[24]
For all the reasons above, the applicant’s application
for judicial review is allowed and the matter is to be referred back to
another immigration officer for redetermination.
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