Docket: IMM-6176-24
Citation: 2025 FC 413
Ottawa, Ontario, March 5, 2025
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN: |
HARMANDEEP SINGH KISANA |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] Mr. Harmandeep Singh Kisana applies under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] to set aside the decision of a visa officer [Officer] refusing his application for temporary residence and a work permit as a long-haul truck driver in British Columbia pursuant to paragraph 200(1)(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations]. The Officer concluded that the Applicant had not demonstrated that he would leave Canada at the end of his authorized stay for two main reasons: (1) insufficient experience to adequately perform the proposed work; and (2) current employment situation not demonstrating financial establishment in the United Arab Emirates [UAE], his country of residence.
[2] The Applicant is a citizen of India, born on November 13, 1996. Since February 2018, he has been working as a heavy truck driver in the UAE, working for three successive employers. He holds the “
Worker”
status in the UAE, valid until August 10, 2024. The Applicant’s employment history in the UAE consists of: (1) Heavy Truck Driver at Salem Ali Alnuaimi General Transport from February 21, 2018 to February 2, 2020; (2) Heavy Duty Truck Driver at Ropar Transport LLC from April 2020 to April 2022; and (3) Heavy Truck Driver at Chauhan Cargo Transport By Heavy Trucks LLC from August 11, 2022 to present, working 50-60 hours per week.
[3] On April 19, 2018, the Applicant obtained a UAE Driving License for both Heavy Vehicle and Light Vehicle categories, valid until April 17, 2025. Additionally, he obtained a UAE Ministry of Interior Certificate confirming that “there are no restrictions registered in the Federal Traffic and Licensing System to date.”
[4] In April 2022, Destiny Transportation Limited [DTL], a company based in Surrey, British Columbia, applied for a Labour Market Impact Assessment [LMIA] to hire foreign workers. On March 10, 2023, DTL received a positive LMIA determination for six Long-Haul Truck Driver positions. On May 11, 2023, DTL offered the Applicant a full-time Long-Haul Truck Driver position, requiring 40 hours of work per week at an hourly wage of $27.00, for a three-year term. The employer stated that the Applicant had a “strong knowledge of the required skill set”
and “the ability to perform all required tasks.”
[5] Around June 2023, the Applicant applied for a work permit to enter Canada through the Temporary Foreign Worker Program. On January 20, 2024, the Applicant traveled to India for his wedding scheduled for February 24, 2024. By letter dated January 25, 2024, Immigration, Refugees and Citizenship Canada [IRCC] requested that the Applicant provide a “driver’s history certificate/Traffic Violation Statement from the Traffic Department, showing a list of all traffic fines or violations within the past two years”
within 30 days.
[6] On February 22, 2024, the Applicant’s authorized representative submitted a letter to IRCC explaining that the Applicant had been in India since January 20, 2024, for his wedding. The letter included supporting evidence and stated that the Applicant had unsuccessfully attempted to obtain the driving record from the UAE while in India and could not travel back at that time. The representative requested a one-month extension to arrange for submission of required documents.
[7] IRCC granted the Applicant the requested extension to March 24, 2024, to provide the Traffic Violation Statement. However, despite receiving this extension, no additional documents were received by the extended deadline.
[8] On March 25, 2024, the Officer issued a decision refusing the Applicant’s work permit application under paragraph 200(1)(b) of the Regulations, concluding that the Applicant had not demonstrated that he would leave Canada at the end of his authorized stay. The decision is documented in the refusal letter and the Global Case Management System [GCMS] notes, with the latter providing most of the substantive reasoning.
[9] The Officer refused the application on two principal grounds: (1) insufficient experience to adequately perform the proposed work; and (2) lack of financial establishment in the country of residence. Regarding the first ground, the Officer’s concerns stemmed from the Applicant’s failure to provide a Traffic Violation Statement. The Officer reasoned:
PA has provided a “License Data Verification Certificate” from the Ministry of Interior, stating that there are no restrictions registered in the Federal Traffic and licensing system. However, this certificate does not list the paid traffic fines registered under his driving license. Whilst the applicant has provided a UAE PC, he has not provided any evidence to show what traffic violations he has had, in the UAE, during the course of his employment.
[emphasis added]
[10] The Officer considered this information central in assessing whether the Applicant would comply with Canadian traffic regulations and, by extension, whether he could perform the job without posing a risk to public safety. Given the absence of this critical evidence, the Officer concluded that the Applicant cannot “adequately perform the proposed work given their: -Insufficient experience.”
[11] Regarding the second ground, the Officer determined that “the applicant’s current employment situation does not show that they are financially established in their country of residence.”
The decision did not provide a detailed explanation of this finding.
[12] Weighing these factors, the Officer concluded that the Applicant had not provided sufficient evidence to demonstrate that he would leave Canada at the end of his authorized stay. The decision stated: “I am not satisfied that the applicant will depart Canada at the end of the period authorized for their stay. For the reasons above, I have refused this application.”
[13] Before me are challenges to both the procedural fairness and the reasonableness of the Officer’s decision.
[14] The procedural fairness challenge centres on whether the Officer breached the duty by failing to provide a reasonable opportunity for the Applicant to submit the Traffic Violation Statement given his documented inability to access it while in India for his wedding.
[15] The reasonableness challenge questions whether the Officer’s conclusions regarding “insufficient experience”
and lack of financial establishment were justified and intelligible, given the evidence of the Applicant’s extensive driving history, valid licensing documentation, and employment status in the UAE.
[16] I agree with the Respondent that the approach when reviewing procedural fairness resembles the correctness standard of review and asks “whether the procedure was fair having regard to all of the circumstances”
: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [Canadian Pacific] at para 54; Heiltsuk Horizon Maritime Services Ltd v Atlantic Towing Limited, 2021 FCA 26 at para 107. The goal of the procedural fairness review should always be investigating “the ultimate question [of] whether the applicant knew the case to meet and had a full and fair chance to respond”
: Canadian Pacific at para 56.
[17] For substantive review, I agree with the parties that the Officer’s decision is reviewable on the standard of reasonableness, as articulated by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov].
[18] In the context of decisions made by visa officers, the reasons need not be extensive for the decision to be reasonable: Vavilov at paras 91 and 128; Kumar v Canada (Citizenship and Immigration), 2024 FC 81 at para 21; Hajiyeva v Canada (Citizenship and Immigration), 2020 FC 71 at para 6 [Hajiyeva]. This is because of the “enormous pressures [visa officers] face to produce a large volume of decisions every day”
: Patel v Canada (Citizenship and Immigration), 2020 FC 672 at para 10. Further, visa officers are afforded considerable deference, given the level of expertise they bring to these matters: Vavilov at para 93; Hajiyeva at para 4; Solopova v Canada (Citizenship and Immigration), 2016 FC 690 at para 12. The onus is on the applicant who seeks a work permit to satisfy a visa officer that they meet the requirements outlined in the Regulations.
[19] While subsections 30(1) and (1.1) of the Act establish the groundwork for the issuance of work permits, the specific requirements are set out in section 200 of Regulations. Paragraph 200(1)(b) establishes the requirement that foreign nationals must leave Canada upon the expiration of their authorized stay:
Work permits
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Permis de travail — demande préalable à l’entrée au Canada
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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
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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 :
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…
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[…]
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(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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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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[20] Paragraph 200(3)(a) grants visa officers the discretion to refuse applications based on their assessment of the applicants’ ability to do the intended work:
Exceptions
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Exceptions
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200 (3) An officer shall not issue a work permit to a foreign national if
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200 (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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[21] Judgments of this Court show that visa officers may consider safety when assessing an applicant’s competence for a position, particularly where safety is paramount. In Singh v. Canada (Citizenship and Immigration), 2022 FC 80 [Singh], the Court affirmed that officers are entitled to apply heightened scrutiny to roles involving public safety, even if this scrutiny exceeds the technical requirements outlined in the National Occupational Classification [NOC] or LMIA. Justice Pamel explained that although subsection 200(3)(a) of the Regulations “does not stipulate a level of competence or safety,”
visa officers have broad discretion to determine whether an applicant’s skills, experience, or language proficiency may pose safety risks: Singh at para 16.
[22] However, as is with all administrative decision-making, this discretion is not unlimited. Officers must base their decisions on a rational analysis linking discretionary evaluations to the specific duties of the proposed work position. For instance, in Singh, the officer’s refusal was upheld because, although the applicant met the LMIA’s “basic English”
requirement, his limited English reading skills raised legitimate public safety concerns: his ability to interpret road signs or communicate in emergencies. Justice Pamel noted that “safety is a paramount consideration for assessing the competency of long-haul truck drivers”
: Singh at para 16. Conversely, in Brar v. Canada (Citizenship and Immigration), 2022 FC 847, the Court struck down a refusal based on the number of hours worked, as the officer failed to explain intelligibly how the LMIA’s 40-hour workweek condition related to the applicant’s ability to perform farm work safely or competently.
[23] The burden of proving competency and safety rests solely on the applicant, who must provide credible and sufficient evidence. Nonetheless, in Kharaud v. Canada (Citizenship and Immigration), 2022 FC 801 [Kharaud], the Court clarified that while applicants must substantiate their ability to perform the job, officers cannot arbitrarily dismiss objective qualifications or impose unwarranted requirements not found in the NOC or LMIA. In that case, the officer unreasonably classified the applicant’s plumbing apprenticeship as “education”
rather than employment, despite the NOC explicitly recognizing apprenticeships as valid work experience: Kharaud at para 15.
[24] The Applicant’s claim of procedural unfairness is constructed on the assertion that the Officer failed to provide reasonable accommodation for the submission of the Traffic Violation Statement, given the Applicant’s documented presence in India for wedding-related matters. However, procedural fairness requires only reasonable accommodation, not indefinite extensions.
[25] The record is clear that the Applicant was given a fair and adequate opportunity to comply with the Officer’s documentary requirements. The Officer granted precisely the accommodation requested by the Applicant, a one-month extension beyond the initial 30-day deadline. The Applicant made this request on February 22, 2024, near the end of the original response period, and the Officer approved it without conditions.
[26] Despite receiving additional time, the required document was not provided to the Officer. Established jurisprudence, including Bidassa v. Canada (Citizenship and Immigration), 2022 FC 242, confirms that immigration officers are not obligated to provide multiple opportunities for supplementation beyond reasonable deadlines. In my view, by accommodating the Applicant’s initial request, the Officer already discharged the duty of procedural fairness. The absence of any further accommodation requests and the Applicant’s failure to meet the extended deadline undermine his claim of procedural unfairness.
[27] I find the Officer’s decision to be reasonable. Neither of the Applicant’s claims regarding insufficient experience and financial establishment justifies judicial interference.
[28] I agree with Justice Pamel’s ruling in Singh that safety is a key evaluative factor in assessing competency for commercial driving positions. The Officer’s focus on the Applicant’s traffic violation history was directly relevant to this core competency requirement. The Officer correctly noted that the certificate submitted did not account for past violations or fines, making it an inadequate measure of the Applicant’s compliance with traffic laws. The absence of a Traffic Violation Statement was therefore a legitimate concern, as this document would have provided qualitative evidence of the Applicant’s adherence to traffic regulations, something that mere experience and licensing cannot demonstrate. The Officer’s reasoning is clear: assessing the Applicant’s history of compliance with UAE traffic laws was essential to determining whether he could adhere to Canadian regulations and ensure public safety as he carries out his employment duties. The Officer’s decision to require this specific document is neither arbitrary nor excessive but a reasonable evidentiary requirement for evaluating the Applicant’s competence.
[29] Regarding financial establishment, I acknowledge that the Officer’s reasoning on this point is brief. However, this does not make it unreasonable, especially given the greater concern arising from the missing Traffic Violation Statement, the operational constraints visa officers face, and the record before the Officer. The Applicant’s UAE work authorization is set to expire in August 2024, coinciding with the start of the proposed three-year employment period in Canada. In my view, this timing reasonably raises concerns about whether the Applicant would have the ability or intention to return to the UAE upon completing his work term. Furthermore, my review of the record reveals limited evidence of the Applicant’s financial establishment in either the UAE or India. While employment documents confirm his current job, they lack details regarding financial assets, property ownership, or other economic ties that would indicate a strong likelihood of return. Ultimately, it is the Applicant’s responsibility to convince the Officer that he will leave Canada at the end of his temporary stay. Given the Applicant’s financial situation and the extended nature of the Canadian position, I find it reasonable for the Officer to question whether he can satisfy the requirement under paragraph 200(1)(b) of the Regulations.
[30] In sum, I determine that the Officer’s decision meets both the procedural fairness requirements and the reasonableness standard applicable to the visa officers’ evaluation of work permit applications. Neither party proposed a question to be certified.
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