Ottawa, Ontario, February 20, 2006
PRESENT: THE HONOURABLE MR. JUSTICE O'KEEFE
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O'KEEFE J.
[1] This is an application for judicial review of a decision by a visa officer (the visa officer), dated January 5, 2005, which refused to grant the applicant a work permit to allow him to work in Canada as a cement finisher.
[2] The applicant seeks an order quashing the visa officer's decision and remitting the matter for redetermination by a different visa officer.
Background
[3] Gurminder Singh (the applicant) is a citizen of India and has worked as a cement finisher in India for about nine years. Prior to submitting the application which is the subject of this judicial review, he made two other applications for a work permit to allow him to work in Canada as a cement finisher. They were refused by the Canadian visa offices in India on September 22, 2004 and November 18, 2004 because the applicant did not meet the English language requirement for the job. With respect to the November 18, 2004 refusal, there were also serious concerns about the bona fides of the job offer, based upon observations made by Human Resources Development Canada (HRDC).
[4] The applicant subsequently submitted a third application for a work permit. The visa officer received confirmation from HRDC that proficiency in English is not required for the applicant's job, and the new language requirements are Punjabi or Hindi. The visa officer interviewed the applicant and refused his application on January 5, 2005. This is the judicial review of that decision.
Reasons for the Visa Officer's Decision
[5] The Computer Assisted Immigration Processing System (CAIPS) notes, which form part of the reasons of the visa officer's decision, relate the following:
Interview conducted on 05 Jan 2005 in English. Introduced self and explained purpose of the interview.
Confirmed that the subject could comprehend the questions being asked and informed him that he could seek clarification at any time during the interview.
Subject stated that he is going to Cda to work as a cement finisher. Subject currently works as a cement finisher in India as well. Said he works for Kochar Constructions in Jalandhar - said he has worked here for five years.
Asked subject to explain exactly what a cement finisher does - said the job involved pouring cement on the shuttering of the building and then making sure that it has been poured on smoothly.
Q - Can you name some of the tools that you use in your trade
A - Gurmala, chapti - I do not know the English terms, we also use vibrators to remove plays from the concrete.
Q - What are some of the better known brands of cement sold in India
A - ACC or Ambuja cement is usually good.
Q - Is there any difference between the two
A - ACC dries faster - Ambuja needs more water to mix it.
Q - How did you get this job in Cda
A - One of my friends found it on the internet and the I spoke to the person in Cda and they asked me to send my bio data.
Q - What is the name of the company you will be working for in Cda
A - Southern Restoration. My employer is Norbetro Artrep.
Q - What will your income be in Cda
A - CD$ 27 per hour. They have said they will give me the job for one year.
Q - How long have you worked as a cement finisher
A - 8-9 years. I have worked on private houses as well as commercial buildings.
Q - How many other people do you know are going to Cda
A - I know one person but he is going as a carpenter.
SUMMARY - Subject did not appear to have any in depth knowledge regarding his trade. Answered questions in a very short and concise manner and did not provide much detail even when it was asked for. Subject named a few instruments they used in their trade but could not provide the English names for the same.
Subject stated that he had got his job through one of his friends who came across it on the internet. Subject has not spoken to his employer directly - only through his friend. Given the subjects lack of any significant knowledge of his trade coupled with the concerns regarding the employer in Cda, I am not satisfied that the reasons for the subjects visit to Cda are genuine and that he will depart Cda at the end of his authorised period of stay.
Application refused.
Issues
[6] The applicant raised the following issues:
1. Did the visa officer breach the duty of procedural fairness in relying upon extrinsic evidence to refuse the applicant's application?
2. Is the decision of the visa officer unreasonable or patently unreasonable in that it was based upon extraneous considerations and faulty reasoning?
Applicant's Submissions
[7] The applicant submitted that where the visa officer relies upon extrinsic evidence, the applicant should be provided with an opportunity to respond to the evidence. The applicant submitted that this is an exception to the general proposition that there is no duty on a visa officer to inform an applicant of concerns with respect to an application and to provide an opportunity to respond before concluding an assessment (see Mehta v. Canada (Minister of Citizenship and Immigration), 2003 FC 1073 at paragraphs 7 to 8).
[8] The applicant submitted that the visa officer, in refusing his previous application on November 18, 2004, relied upon extrinsic evidence, namely, concerns by HRDC about the bona fides of the job offer, without providing the applicant with an opportunity to respond to this evidence. The applicant submitted that it is clear that the visa officer for the present application relied on this same information in refusing the application because the CAIPS notes state:
Given the subjects lack of any significant knowledge of his trade coupled with the concerns regarding the employer in Cda, I am not satisfied that the reasons for the subjects visit to Cda are genuine and that he will depart Cda at the end of his authorised period of stay.
[9] The applicant submitted that the visa officer breached the duty of procedural fairness by not providing the applicant with an opportunity to disabuse the visa officer's concerns arising out of this extrinsic evidence.
[10] The applicant submitted that the visa officer's decision was based upon extraneous considerations and faulty reasoning. The applicant submitted that although the English language requirement for the job was waived by the HRDC, the visa officer still used the applicant's inability to name some of the tools of the trade in the English language as one of the grounds for refusal. Moreover, the applicant submitted that the visa officer erred in observing that the "subject did not appear to have any in depth knowledge regarding his trade" and that he "answered questions in a very short and concise manner and did not provide much detail even when it was asked for".
[11] The applicant submitted that contrary to the visa officer's remarks, it is clear from the CAIPS notes that the visa officer asked the applicant specific questions and did not ask the applicant to provide details, and the applicant gave direct and concise answers.
Respondent's Submissions
[12] The respondent submitted that the applicant's argument that the visa officer erred by failing to confront him with extrinsic evidence is unsubstantiated by the record before this Court. The respondent submitted that the visa officer never referred to the HRDC observations cited by the applicant. Instead, the CAIPS notes and the visa officer's affidavit indicated that the visa officer was concerned about the applicant's lack of direct communication with his employer in Canada and his lack of significant knowledge of his trade. The respondent thus submitted that the facts of this case do not fall within the "extrinsic evidence" exception outlined by the applicant, but fall within the general principle that there is no duty on a visa officer to inform an applicant of concerns with respect to an application and to provide an opportunity to respond before making an assessment.
[13] The respondent further submitted that the applicant's argument that the application was refused based on his language skills is not tenable for two reasons. First, the visa officer's CAIPS notes explicitly note the lack of English-language requirement for the work permit. Second, the visa officer's questions and the officer's summary of her reasons for refusal indicated that her refusal was based not on the applicant's English-language skills, but rather on his lack of significant knowledge of cement finishing. This rationale is reiterated in the visa officer's affidavit.
[14] The respondent submitted that although the applicant argued that he was not asked to provide detailed answers, this submission is not substantiated by any testimony in the applicant's affidavit, and it is inconsistent with the visa officer's explicit statement in the CAIPS notes that the applicant "did not provide much detail even when it was asked for."
[15] The respondent submitted that the applicant's lack of direct communication with his employer in Canada and his lack of significant knowledge of his trade are reasonable grounds for the visa officer to doubt the genuineness of the reasons for the applicant's visit to Canada and his willingness to depart after his work permit expired.
Relevant Statutory Provisions
[16] A foreign national must apply for a visa or any other required document before entering Canada, in accordance with subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
| 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 shall 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, lesquels sont délivrés sur preuve, à la suite d'un contrôle, qu'il n'est pas interdit de territoire et se conforme à la présente loi. |
[17] Nationals of India who are entering Canada to remain and work on a temporary basis must obtain both a temporary resident visa and a work permit. The relevant provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) are set out below.
| 7. (1) A foreign national may not enter Canada to remain on a temporary basis without first obtaining a temporary resident visa.
. . .
8. (1) A foreign national may not enter Canada to work without first obtaining a work permit.
. . .
179. An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national
(a) has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class;
(b) will leave Canada by the end of the period authorized for their stay under Division 2;
(c) holds a passport or other document that they may use to enter the country that issued it or another country;
(d) meets the requirements applicable to that class;
(e) is not inadmissible; and
(f) meets the requirements of section 30.
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
(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;
(c) the foreign national
(i) is described in section 206, 207 or 208,
(ii) intends to perform work described in section 204 or 205, or
(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; and
(d) [Repealed, SOR/2004-167, s. 56]
(e) the requirements of section 30 are met.
203. (1) On application under Division 2 for a work permit made by a foreign national other than a foreign national referred to in subparagraphs 200(1)(c)(i) and (ii), an officer shall determine, on the basis of an opinion provided by the Department of Human Resources Development, if the job offer is genuine and if the employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada. |
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7. (1) L'étranger ne peut entrer au Canada pour y séjourner temporairement que s'il a préalablement obtenu un visa de résident temporaire. . . .
8. (1) L'étranger ne peut entrer au Canada pour y travailler que s'il a préalablement obtenu un permis de travail.
. . .
179. L'agent délivre un visa de résident temporaire à l'étranger si, à l'issue d'un contrôle, les éléments suivants sont établis:
a) l'étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des étudiants;
b) il quittera le Canada à la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2;
c) il est titulaire d'un passeport ou autre document qui lui permet d'entrer dans le pays qui l'a délivré ou dans un autre pays;
d) il se conforme aux exigences applicables à cette catégorie;
e) il n'est pas interdit de territoire;
f) il satisfait aux exigences prévues à l'article 30.
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:
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;
c) il se trouve dans l'une des situations suivantes:
(i) il est visé par les articles 206, 207 ou 208,
(ii) il entend exercer un travail visé aux articles 204 ou 205,
(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;
d) [Abrogé, DORS/2004-167, art. 56]
e) il satisfait aux exigences prévues à l'article 30.
203. (1) Sur demande de permis de travail présentée conformément à la section 2 par un étranger, autre que celui visé à l'un des sous-alinéas 200(1)c)(i) et (ii), l'agent décide, en se fondant sur l'avis du ministère du Développement des ressources humaines, si l'offre d'emploi est authentique et si l'exécution du travail par l'étranger est susceptible d'avoir des effets positifs ou neutres sur le marché du travail canadien. |
Analysis and Decision
[18] Issue 1
Did the visa officer breach the duty of procedural fairness in relying upon extrinsic evidence to refuse the applicant's application?
In order to address this issue, it must be determined whether the officer used extrinsic evidence in coming to a decision. It would be necessary to disclose this evidence to the applicant for a response. The CAIPS notes contain notes from the applicant's November 18, 2004 work permit application as well as the notes from the present work permit application. The notes for the present application begin on page 3 of the tribunal record under the line break "W050100011 RAS 04-Jan-2005" and begin with the text, "I HAVE REVIEWED THE INFORMATION ON FILE." The remarks in the section just above these notes are the program assistant's notes which provide a summary of the information submitted by the applicant for the present application. The earlier notes refer to the previous application.
[19] The applicant submitted that the officer, when she stated she reviewed the file, reviewed all of the CAIPS notes including the notes on the earlier application and thus, in coming to her decision, would have considered the evidence concerning the "nanny agency", which were the concerns about the bona fides of the job offer. I do not see it that way. In my view, the evidence establishes that the officer only reviewed the information on file for the present application and she dealt with that information in her January 5, 2005 decision. The officer therefore did not utilize extrinsic evidence in coming to a decision. There was no error by the officer.
[20] Issue 2
Is the decision of the visa officer unreasonable or patently unreasonable in that it was based upon extraneous considerations and faulty reasoning?
The applicant submitted that the officer erred because she stated in her decision that the applicant, when asked to name instruments used in the trade, could not give the English names for some of the instruments. The applicant argued that this indicated that the officer still believed that the applicant had to know English and used this as one of the reasons for refusing the application. I have reviewed the officer's decision and I cannot conclude that the officer believed proficiency in English was a requirement of the job. The CAIPS notes reviewed by the officer stated that the language requirements were Punjabi or Hindi. The officer's reasons state that the applicant did not appear to have an in-depth knowledge of the trade and that he had not directly spoken to his future employer, which led to the officer's concerns about his intended employer. In my opinion, this is one of the reasonable decisions the officer could have reached on the facts of this case.
[21] I would note that the applicant agreed to the interview in English.
[22] The application for judicial review is therefore dismissed.
[23] Neither party submitted a serious question of general importance for certification for my consideration.
JUDGMENT
[24] IT IS ORDERED that the application for judicial review is dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1513-05
STYLE OF CAUSE: GURMINDER SINGH
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 31, 2006
APPEARANCES:
| Jaswant Singh. Mangat |
|
| John Provart |
SOLICITORS OF RECORD:
| Jaswant Singh. Mangat Mississauga, Ontario |
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |
|