Whistler 2009: View From the Mountain Top
Canadian Bar Association 2009 National Citizenship and Immigration Law Conference
Judicial Reviews of Work Permits: What Every Practitioner Should Know
Ravi Jain
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Judicial Reviews of Work Permits: What Every Practitioner Should Know
Ravi Jain*
Introduction
This paper is being written for Advanced Workshop on “Leading Cases Relating
to Work Permits” for the 2009 National Citizenship and Immigration Law Continuing
Legal Education Conference. My co-presenter is Nalini Reddy of the Department of
Justice. Ms. Reddy and I surveyed the jurisprudence relating to work permits and then
mutually agreed as to which were the leading cases in this narrow area. The cases were
then grouped under broad themes.
Rather than co-write a paper, we agreed that Ms. Reddy would cover the first
theme – Standard of Review – and would recite what the cases stood for under each
theme. My task is to examine the cases with a critical eye, based on my experience in
private practice. My aim is to draw the reader‟s attention to aspects of the cases under
each theme which may be of assistance in the day-to-day practice of immigration law.
At the outset, I should note that relative to the body of case law pertaining to
permanent resident applications, the jurisprudence relating to work permits is quite small.
This is because most employer clients are not particularly interested in waiting for several
months to judicially review work permit refusals. Most employers are also not keen to
incur the legal fees associated with a federal court review.
I would also note that for the category of work permits requiring a positive
Labour Market Opinion (“LMO”) from Human Resources Skills Development Canada
(“HRSDC”), a QuickLaw search showed no cases at all of LMO refusals. I searched the
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Federal Court of Canada database and entered these terms: “Service Canada,” “HRDC”
(as the Department was then known), “HRSDC,” and “labour market opinion.” The only
cases which appeared were those involving Citizenship and Immigration Canada
(“CIC”). None had Service Canada, HRSDC or HRDC in the style of cause.
From a practitioner‟s perspective, the lack of a large body of case law pertaining
to work permits and the absolute vacuum of judicially reviewed HRSDC LMO refusals is
not good. It is clear from the few judicial reviews that exist pertaining to work permits
that errors are made by visa officers. I would suggest that it would be naïve to think that
the lack of judicially reviewed LMO refusal cases means HRSDC officers never rely on
extrinsic evidence and always provide detailed reasons and never waiver from their the
duty of fairness.
“Work”… and When Work is not “Work”
When the Immigration and Refugee Protection Act (IRPA) and accompanying
Regulations came into force, there were several major changes pertaining to work
permits. The term “employment authorization” was replaced with the more colloquial
“work permit” and the definition of what constitutes employment or “work” also
changed.
IRPA and the accompanying Regulations also created exemptions from the
necessity of obtaining work permits. That is, if the “work” fits into one of the 21
exemptions, the foreign national is not required to obtain a work permit. My co-presenter
and I found it interesting that only one exception was judicially reviewed – namely,
* B.A. (Hons.) (Queen’s), LL.B. (The Osgoode Hall Law School), LL.M. (The University of Michigan Law
School), C.S. (Certified as a Specialist in Citizenship and Immigration Law by the Law Society of Upper
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Regulation 186(l), which relates to work “as a person who is responsible for assisting a
congregation or group in the achievement of its spiritual goals and whose main duties are
to preach doctrine, perform functions related to gatherings of the congregation or group
or provide spiritual counseling.”
In Duraisami v. M.C.I.1, the judicial review pertained to the officer‟s denial of an
extension of Duraisami‟s Temporary Resident Permit which was made by referencing the
exemption permitting religious workers to work in Canada without a work permit. Mr.
Duraisami was offered a position as a Drama Co-ordinator for his church.
The FOSS notes revealed that the officer had written that Regulation 186(l)
applies to those who will be preaching doctrine, presiding at liturgical functions or
providing spiritual counseling. Mr. Duraisami argued that the officer had erred in adding
“presiding at liturgical functions” to the definition. The Court found that the officer was
merely referencing activities which would meet the test.
The Court then went on to state that Regulation 186(l) “has to be given a meaning
and application consistent with its purpose – to grant an exemption from work permits to
those who have responsibility to assist a congregation or group in achieving its spiritual
goals… Not every person who assists at a place of worship (ushers, singers, teachers of
religious studies) per se, fall within the scope of s. 186(l).”2 The facts revealed that Mr.
Duraisami was a youth leader who lead songs and provided inspiring messages.3 But the
Canada). 1 2005 FC 1008. 2 Ibid, at para. 19. 3 See ibid, at para. 6.
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Court concluded that “religious fervor cannot necessarily be equated to ability to
preach.”4
This case is important to the practitioner because Regulation 186(l) seems to set
out a tripartite disjunctive test for main duties as: 1) preaching doctrine, 2) performing
duties related to gatherings of the group or 3) providing spiritual counseling. The first and
third duties are high level on their face but the second duty of performing duties related to
the religious gatherings might be thought to encompass lower level religious work. The
case suggests that the foreign national must be coming to Canada to take on a role with
higher level responsibility.
In Sandy Bay Ojibway First Nation v. M.C.I.,5 a First Nation adopted Sister
Eligwe, a Nigerian nun. Prior to being adopted by Sandy Bay Ojibway First Nation,
Sister Eligwe had claimed refugee status and been denied and had also received refusals
relating to her Pre-Removal Risk Assessment and her humanitarian and compassionate
application. The First Nation brought the judicial review arguing its right to determine its
membership. The thrust of the decision is that the adoption seemed to be aimed at
allowing Sister Eligwe to remain in Canada. The Court worried about giving the power to
more than 600 Indian bands to override IRPA.
This case is novel and the practitioner may appreciate the creativity of the First
Nation in attempting to assist Sister Eligwe. Interestingly, the Court also discussed
Regulation 186(l) and found that Sister Eligwe had not worked pursuant to the subsection
as she had “worked here as a short order cook and in other non-religious capacities,
although she has also led the band's choir and has been of spiritual assistance to
4 Ibid, at para. 18.
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many…”6 The Court went on to say that “there is no evidence whatsoever that she has
any diocesan status.”7 This decision one year later than Duraisami further supports the
notion that the second part of the tripartite test cannot be used for lower level work in
support of a religious group.
Hashmi v. M.C.I.8 is a case that will warm the heart of any immigration law
practitioner who has ever tried to argue with a visa officer that the immigration manuals
have no force of law. In this case, Ms. Hashmi was applying for a work permit under
Regulation 205(d) which provides that an LMO from HRSDC is not required if the
foreign national will perform work of a religious or charitable nature.
Ms. Hashmi was offered $43,500 per annum supplemented by a standard benefits
package from the Islamic Society of North America. The officer relied on the Foreign
Worker Manual which at the time stated that “[a]n individual will not receive
remuneration, other than a small stipend for living expenses.”9
As the officer had refused the application by relying on this part of the manual,
and as the Regulations provided no limitation on salary, the Court found that the officer
had erred. Thus, for the practitioner, this case stands for more than the fact that applicants
under Regulation 205(d) may received more than small stipends for living expenses. The
case reminds us that while the manuals are instructive, they must always be cross-
referenced with the Act and Regulations to determine where they have gone too far in
usurping the role of our elected officials.
5 [2006] 4 C.N.L.R. 275 (Ct File No. T-1156-06). 6 Ibid, at para 16. 7 Ibid. 8 2006 FC 1335. 9 See what was then section 5.40 of the Foreign Worker Manual (now renumbered to section 5.39).
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Juneja v. M.C.I.10
is a case that considered the definition of “work.” Before
discussing this case, it may be useful to discuss the evolution of “work” from the
previous Act to the current IRPA. Under the old Act, “employment” was defined in
subsection 2(1) as “any activity for which a person receives or might reasonably be
expected to receive valuable consideration.” Under the new scheme, “work” is defined as
“an activity for which wages are paid or commission is earned, or that is in direct
competition with the activities of Canadian citizens or permanent residents in the
Canadian labour market.” While the definition has now moved from the Act to the
Regulations, this is of no consequence because this particular definition appears under
subsection 1(1), which states that the definition applies throughout the Act and
Regulations.
What is interesting to note about the change in definition is the reference under
IRPA to activities of Canadians or permanent residents in the Canadian labour market.
Even activities for which no wages are paid or for which no commission is earned may
still be considered “work” under the new scheme if the activities are in direct competition
with the Canadian labour market activities of Canadians or permanent residents.
Volunteering for experience could therefore be quite problematic under the new scheme
if Canadian jobs are displaced as a result. But, conversely, activities performed in Canada
that resemble what we traditionally think of as work (activities we reasonably expect
would receive some form of valuable consideration) will not constitute “work” under the
new scheme if no wages or commissions are paid and there is no direct competition with
the activities of Canadians and permanent residents in the Canadian labour market.
10 2007 FC 301.
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Juneja v. M.C.I.11
involved a judicial review of a hearing before the Immigration
Division of the Immigration and Refugee Board. The facts were that Mr. Juneja was on a
study permit which prohibited unauthorized work. He was caught performing work-like
tasks at a Ford dealership. The employer was banking his hours presumably to pay him
once he obtained a work permit. The Canada Border Services Agency arrested him and
an admissibility hearing was then convoked where the Immigration Division of the
Immigration and Refugee Board found the applicant inadmissible had worked illegally.
In upholding the Board‟s decision, the Court found that Mr. Juneja had
performed “work.” The decision is useful because it directly considers the definition of
“work” and concludes that Mr. Juneja met both parts of it. While the first branch of the
definition talks of wages or commissions paid and no wages were yet paid, the Court
found that Mr. Juneja had an expectation of future payment and the dealership had at
least a conditional and, perhaps, an absolute legal obligation to pay for the work he
performed. As for the second definition, the Court found that it was an activity in direct
competition with the activities of Canadians and permanent residents in the Canadian
labour market.
Reviewing Visa Officers’ Assessment of Ability to Perform Work
The next body of cases all involve judicial reviews of visa officers‟ assessments
of the ability of the foreign national to perform the intended work. These cases are
particularly helpful to the immigration law practitioner as they will allow the immigration
lawyer to easily identify common errors.
11 Ibid.
9
In Do v. M.C.I., 12
Mr. Do had applied for a work permit to work as a cook at
Bagolac Saigon Restaurant Inc., a Vietnamese restaurant owned by his sister‟s mother-in-
law. He had obtained an LMO and yet the officer refused the work permit and in doing so
made several errors.
First, the visa officer stated that the officer was just made to help Mr. Do enter
Canada and he would not return to Vietnam. The officer no doubt had in mind that the
job offer was from a relative. Interestingly, the Court held that this was “not evidence” 13
of lack of ties on the record and in fact, Mr. Do had ties to Vietnam given that he had a
job in Vietnam, owned land there and his wife and children lived there. This is good law
for the proposition that an officer‟s assessment that the applicant lacks ties must be based
on something.
The officer asked Mr. Do about one specialty dish and Mr. Do was not aware of
it. The Court found that the officer erred in concluding he was not a trained and
experienced cook given that he had two years of cooking experience and a cooking
certificate. We do not know if this Court would have held it unreasonable to test on more
standard dishes but it is clear that questioning on specialized skills must be considered in
light of work experience and qualifications.
Finally, the officer stated that Mr. Do did not look like a cook as he was tanned
like a farmer and lacked cuts and burns on his hands. The Court found his appearance
utterly irrelevant. While immigration lawyers regularly field questions about what an
applicant should wear at an interview, we are normally not concerned about how tanned
12 2004 FC 1269. 13 Ibid, para 4.
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our clients are and we do not normally inspect their hands. In light of this decision,
perhaps we can consider ourselves safe in not advising on physical appearance.
In Singh v. M.C.I., 14
Gurminder Singh worked as a cement finisher and applied
for a work permit to perform his trade in Canada. He was refused twice for not meeting
the English requirement and on the third attempt, he obtained an LMO stating that
English was not required for the job.
At the interview, Mr. Singh answered questions about brands of cement sold in
India, which types are better and why. He was able to answer the questions and did so in
a very direct manner but without great elaboration. He was also asked to name
instruments used in his trade and could not give the English names for some of them. The
visa officer‟s refusal cited the fact that he could not provide the English names and this
was one of the grounds of judicial review.
I focus on this ground because the Court dismissed the judicial review after
finding that it could not conclude that the officer believed proficiency in English was a
requirement for the job. The Court also noted that the CAIPS notes reviewed by the
officer stated the language requirements were Punjabi or Hindi.
This is an important case for any practitioner who is faced with a client who does
not speak English. It is extremely important to scrutinize the LMO to ensure that English
is not listed as a requirement. I have been told by HRSDC officers that it is not possible
to alter the language requirements and that English will appear but that an annotation can
be made at the bottom of the Annex to the LMO stating that English is not a requirement.
14 2006 FC 227.
11
In a recent judicial review of a permanent resident application, I came across this
issue in the context of an Arranged Employment Opinion (“AEO”). I had obtained a
second positive AEO specifically asking that English be removed as a requirement and I
was told by HRSDC that the Annex could not be changed. Instead, the officer wrote in
the cover letter that the she had received information from the employer that English was
not a requirement for the job.
My advice is to be very careful with LMOs and AEOs. There is a real live
question as to whether the Annex is the Opinion or whether the letter is the Opinion. The
letters state that attached to the opinion is an Annex, which suggests that the letter is the
opinion. I would try to ensure that both the letter and the Annex mention that English is
not a requirement. If a visa officer then refuses an application based on lack of English,
do not hesitate to judicially review. I was able to obtain a consent in my case and
practitioners should try for one if they encounter this situation. In any event, Singh v.
M.C.I.15
confirms that a work permit can be issued to a foreign national who does not
speak English.
Vairea v. M.C.I.16
is useful for its treatment of the issue of extrinsic evidence. Mr.
Vairea applied to work in Canada as a cement finisher and obtained a positive LMO.
After issuing the LMO, the HRSDC officer made electronics notes on the file expressing
new concerns about the employer on the basis of a newspaper article mentioning a group
of Filipino workers in Toronto who had complained of recruitment fraud against the
owner of an employment agency who was the ex-wife of Mr. Vairea‟s intended employer
15 Ibid. 16 2006 FC 1238.
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and whose agency was located next door to Mr. Vairea‟s intended employer. The
HRSDC officer had written to not issue the work permit before contacting him.
The Court held that the officer did not rely on extrinsic evidence because the
officer asked Mr. Vairea about her concerns with respect to the prospective employer.
While it did not seem that the officer specifically mentioned the existence of the HRSDC
officer‟s subsequent notes and while it did not seem that the newspaper article was
mentioned, asking about how he found the job and whether he paid for the job was
deemed sufficient. Thus, in assessing whether an applicant can perform the work, it
seems that the Court has held that a visa officer need not disclose extrinsic evidence if the
applicant is questioned about the issues the evidence raises and his responses are found
lacking. This case might be distinguishable in that Mr. Vairea had never spoken directly
to his prospective employer and his friend had found him through an ad on the internet.
The next case deals with evidence in a different way. In Bondoc v. M.C.I.,17
Ms.
Bondoc applied for a work permit as a live-in caregiver. She had obtained a positive
LMO and passed the “SPEAK” English test and yet was refused by the officer. Her
counsel argued that these facts created a strong presumption that she was qualified and
had met objective criteria as set out in section 112 of the Regulations. Counsel argued
that the visa officer did not displace this presumption with sufficient reasons.
The Court found that as per paragraph 200(3)(a) of the Regulations, an officer
shall not issue a work permit if there are reasonable grounds to believe the foreign
national is unable to perform the work sought. Thus, the visa officer must be satisfied the
requirements are met. In the case at bar, it was found that Ms. Bondoc provided
17 2008 FC 842.
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insufficient answers to the visa officer‟s questions and therefore the visa officer‟s
decision was not unreasonable. I note that Ms. Bondoc had indicated that her proposed
work schedule was such that she would only be responsible for supervising the children
for one hour a day.
The obvious relevance of this case to the practitioner is that the visa officer can
not be relied on to simply “rubber stamp” a positive LMO (and positive SPEAK test in
the case of live-in caregivers). Applicants need thorough preparation for immigration
interviews. The case at bar never had a chance of succeeding given that live-in caregivers
must care for children more than one hour per day.
I also note that Bondoc, which was decided in 2008, also affirms the finding in
Do v. M.C.I.18
that job offers from relatives do not constitute an automatic bar. In Bondac
the Court found that “[t]he officer did not simply reject the application because the
employment offer came from within the family, but instead reviewed the „overall
picture,‟ to find that the employment position was not bona fide.”19
This confirms that a
job offer from a relative, in itself, is not a ground of refusal – though counsel would be
wise to submit additional evidence of bona fides in such cases.
The next case to consider is Chen v. M.C.I.20
As with Bondoc, a major issue was
language ability and the cased turned on this issue alone. Mr. Chen spoke only Chinese
and was offered a position as a warehouse manager for a Chinese luxury food company.
Perhaps for reasons I cited earlier, there was some confusion in the record as to what
HRSDC stated about language requirements. The CAIPS notes revealed an entry from
18 2004 FC 1269. 19 Bondoc v. M.C.I, 2008 FC 842, para 15. 20 2005 FC 1378.
14
the HRSDC officer that the foreign worker “needs only Chinese”21
and yet the same
notation stated “Must speak English and Chinese…”22
This could be for the reasons I
outlined earlier, namely, a deficiency in the software that HRSDC uses.
In any event, the Court held that while the visa officer should have conducted
further inquiries to determine whether English was required or not, the officer
nevertheless properly carried out his own evaluation. This is because the officer relied on
a number of considerations and not just language in finding that the Mr. Chen was not
capable of supervising a modern warehouse.
Thus, the Court reached a similar conclusion as in Bondoc in that the visa officer
must make his own determination as to whether or not the foreign worker can perform
the job. A perceived error about whether or not English is required may be irrelevant if
the officer has otherwise flunked your client.
The final case under this section, Randhawa v. M.C.I.,23
does not deal with
evidence so much as the officer‟s reliance on her own standards. Mr. Randhawa applied
as an assistant cook and answered questions in the interview about how to verify the
freshness of chicken and about refrigerating meat. At the end of the interview, the officer
stated she was concerned Mr. Randhawa would be unable to observe principles of
hygiene. She gave him 30 days to complete a course in kitchen hygiene.
Mr. Randhawa completed a course and received a Grade „A.‟ The visa officer
then asked him various questions pertaining to kitchen hygiene and in the CAIPS notes
concluded that after checking with people in her office about his answers, she refused the
application.
21 Ibid, para 10. 22 Ibid.
15
The Court found that the officer was not an expert on food hygiene and yet had
“grilled”24
the applicant (the Court‟s word choice!). The Court also noted that the
National Occupational Classification (NOC) for cooks does not list any duty to maintain
high standards of hygiene and sanitation (though it was mentioned in the employer letter).
The Court went on to conclude that the officer had applied her own standards of hygiene
and sanitation and that it was unreasonable not to take into account that he would
undergo some measure of job orientation.
The immigration practitioner can take from this case that when reviewing an
officer‟s decision, it is important to always consider the main duties under the NOC. Is
the officer basing his or her decision on criteria outside the NOC for that job? Also, is the
officer importing his or her own standards?
What’s Fair: The Duty of Fairness
The next series of cases are useful for their articulation of the apparently lower
duty of fairness for work permit cases and also for the miscellaneous tips they provide to
the immigration law practitioner.
In Qin v. M.C.I.,25
Mr. Qin had applied to work in his sister‟s restaurant as a cook
and cooking instructor. The officer denied the application out of concern that the job
offer was merely offered to assist him in entering Canada and also because the
application lacked information about his cooking experience and finally because his
employer reference letter was not written on letterhead and provided no phone number.
Mr. Qin argued that procedural fairness required that he be granted an interview.
23 2006 FC 1294. 24 Ibid, para 13.
16
The Court dismissed the application. First, the Court commented on the duty of
fairness in the context of a work permit application. It noted that “[i[n cases of
deportation, for example, when the consequences of a negative decision will be disruptive
to an individual, the requirements for procedural fairness will be greater than in the case
of an Applicant for a temporary worker‟s visa when there is no evidence that denying the
applicant the opportunity for Canadian work experience will cause him hardship.”26
The
Court noted that in the case at bar, no evidence was presented that working in Canada
would be important to the Applicant in a material way, “such as enhancing his career
opportunities when he returns to China.”27
It is not clear to me from the above that the Court was saying that work permit
applications in themselves result in lower procedural fairness requirements. The Court
seemed to leave open a greater procedural fairness standard for those work permit
applicants who provide evidence of greater career prospects in their home country after
working in Canada for a temporary period.
Qin is also useful for the immigration law practitioner in that the facts revealed
that the Canadian Embassy required that a „Letter of Permission‟ to leave his current
employment be on his current employer‟s company letterhead. I cannot emphasize how
important it is to familiarize oneself with the particular requirements of various visa
posts. Forms will vary and supporting documentation will also vary. Had Mr. Qin
familiarized himself with the requirements, he would have been in a much better position.
Qin also speaks to an applicant‟s burden in noting that while the Embassy had
provided a list of required documents, Mr. Qin could have submitted whatever he wished
25 2002 FCT 815. 26 Ibid, para 5.
17
to satisfy the officer that he met the requirements. This is also a useful practice tip in that
lawyers should ask clients for everything they can think of to assist their case and then
evaluate it accordingly.
In Li v. M.C.I., 28
a work permit was denied without an interview. Li had obtained
a positive LMO but the work permit was denied because the officer was not satisfied Li
would leave upon its expiry for the reason that Li had limited ties to China, was not well
established in China and would earn significantly more in Canada.
The Court held that nothing in Li‟s application other than a higher salary in
Canada suggested he intended to stay in Canada permanently. Further, the Court held that
Li had no way of knowing that the officer would rely on the higher Canadian salary and
the fact that his latest job was less than one year in length and that his employment
history was difficult to obtain and that he had limited family ties to China. The Court
found that an interview should have been conducted. 29
Given the decision in Qin, it would be foolish for the immigration law practitioner
to rely on Li when preparing applications for work permits. A wise immigration lawyer will
understand that the burden is on the applicant to provide as much information as possible to
show that the applicant qualifies. Having said that, Li suggests that factual scenarios
seemingly involving weak ties could warrant interviews and where refusals are issued
without interviews, a judicial review may be appropriate. This is good news for those who
feel that there may be more to the story than what appears on the paper file – for instance,
that young people without strong ties are the very sorts of people more likely to try to
27 Ibid. 28 2008 FC 1284. 29 See ibid, at para. 38.
18
venture to a new country for better work experience and that permanent intent does not
necessarily underlie their enthusiasm.
The next three cases relate to the duty to provide reasons. In da Silva v. M.C.I.30
,
Mr. da Silva applied for a type of work permit exempt from the requirement of an LMO
on the grounds that he would create or maintain significant social, cultural or economic
benefits or opportunities for Canadians or permanent residents under Regulation 205(a).
The Court stated that the duty to provide reasons is lower in the context of applications
for temporary residence status and went on to list these factors: “the applicant has no
legal right to obtain a visa, and bears the burden of establishing the merits of his claim;
the refusal of a work permit on an application from outside of Canada has less impact on
the applicant than would the removal of a benefit; and the Officer is in a better place to
evaluate the cultural and economic benefits of the applicant‟s prospective employment
than the applicant.”31
In light of the finding that the duty to provide reasons is lower for temporary
resident cases, the Court concluded that it was open to the Officer to “simply state” 32
that
he was not convinced that the applicant met his burden. I note that the Court relied on the
Foreign Worker Manual which stated that Regulation 205(a) should not be used “for the
sake of convenience, nor in any other manner that would undermine or try to circumvent
the importance of the HRSDC confirmation in the work permit process.”33
The fact that
30 2007 FC 1138. 31 Ibid, at para. 12. 32 Ibid, at para. 15. 33 Ibid, at para 13.
19
Regulation 205(a) should only be granted in exceptional cases was found to be another
factor attenuating the duty of fairness.34
One practice tip which can be gleaned here is that the practitioner should be wary
of using Regulation 205(a) unless substantial supporting documentation is provided. The
larger point, however, is that lack of reasons are not enough upon which to base a judicial
review in a work permit case. I note that after initiating a judicial review, counsel will
receive the CAIPS notes in any event which can be studied to determine if there are other
reviewable grounds.
Bondoc v. M.C.I.35
supports this view. It is discussed above and the reader may
recall that it involved an application by the employer‟s sister and she was only scheduled
to supervise the children for one hour per day. The applicant argued that the officer had
breached procedural fairness in failing to provide adequate reasons but the Court held that
“[w]hile there is perhaps a lack of explanation for the finding in the actual letter
explaining the decision, the CAIPS notes provide sufficient explanation.”36
I now turn to Garro v. M.C.I.37
In that case, Mr. Garro applied for a work permit as a
treaty investor under the North American Free Trade Agreement. Mr. Garro, a Mexican
citizen, incorporated a Canadian publishing company for educational books. He invested
$20,000 as an initial sum and the CAIPS notes showed that the officer felt that this did not
constitute a “substantial investment” as was required. However, the evidence in the record
showed that he had invested $166,000 in commercial premises for the company and $67,000
in book stocks to sell and thousands of dollars in equipment.
34 Ibid, at para 14. 35 2008 FC 842. 36 Ibid, at para. 25. 37 2007 FC 670.
20
The officer‟s decision simply stated that “after a careful review of your file, we have
determined that you do not meet the requirements…”38
The Court did not address whether
there was a lower duty of fairness for work permit cases and instead focused on the fact that
the applicant‟s evidence was so compelling, stating that the Court “can only conclude that
there is absolutely no reason for the officer‟s decision.”39
While the Court did not specifically address the factors affecting a determination of
the adequacy of reasons, it seems likely that the nature of the application was a factor in the
Court‟s finding that the fairly detailed FOSS notes made by the deciding officer revealed
“absolutely no reasons for the officer‟s decision”.40
This suggests to me that if a practitioner
is faced with a decision so obviously unreasonable and yet no real reasons are given aside
from the “after a careful review, you do not qualify” letter, the Court may well find a duty to
provide reasons was breached.
Work Permit Conditions
There are two cases to consider under potential breaches to work permit
conditions. The first is Brar v. M.C.I.41
The case actually refers to four proceedings and
the decision applies to all four. The judicial review related to a finding by the
Immigration and Refugee Board determining that all four applicants had contravened the
terms of the work permits issued to them and each was therefore to be excluded.
When each applicant arrived in Canada, they found that the prospective
workplace, Bombay Paradise restaurant, was under construction. The owner therefore
38 Ibid, para 10. 39 Ibid, para 19. 40 Ibid, at para. 19. 41 2006 FC 1502.
21
placed them in another establishment known as Bombay Sweet House and Restaurant.
Importantly, the ownership was not the same but the pay cheques issued to the four
applicants were from the numbered company which owned Bombay Paradise.
The Court found that the work permit conditions were not breached because
“employer” as defined by the Shorter Oxford Dictionary, fifth edition, is “A person who
employs or who makes use… e.g., a person or organization that pays someone to do work
on a regular or contractual basis.”42
As Bombay Paradise was paying the applicants on a
regular basis, Bombay Paradise was the employer and no condition was therefore
breached.
I note that the Court rejected the Respondent‟s argument that the work permit
should be interpreted in light of the correspondence in the file which gives an address for
Bombay Paradise (which is obviously different from Bombay Sweet House and
Restaurant). The Court found that the work permit should be read and understood without
reference to other material but rather on its face. It further noted that the Minister has the
resources to ensure the work permit is complete and understandable and cannot rely on
self-created ambiguities.
In Kali v. M.C.I.,43
the conditions of Ms. Kali‟s work permit stated that she could
not work as an exotic dancer for any other employer than Jilly‟s Adult Lounge. Yet, she
was sent by her manager to dance at another establishment, The Brass Rail. When The
Brass Rail was raided, it was discovered that Ms. Kali was working there and she was
found in breach of the terms of her work permit.
42 Ibid, at para 11. 43 2002 FCT 1080.
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The Brass Rail and Jilly‟s Adult Lounge were not owned by the same employer
and the adjudicator rejected the possibility that Ms. Kali could have believed the two
establishments were owned by the same employer. The decision to issue a deportation
order due to the breach in the terms of her work permit was therefore found not to be in
error.
The „take-away‟ for the immigration lawyer is clearly that the terms of the work
permit must be strictly adhered to – and that this cuts two ways. Where a client works for
a business not listed on the work permit, the only way this is acceptable is if the business
listed on the work permit is the one paying the foreign worker‟s salary. Interestingly,
according to Brar, the business at which the foreign national is working need not be
owned by the owner of the business listed on the work permit. Having said that, the
foreign worker cannot breach the location condition on the work permit and so the
business would have to be in the same city.
Implied Status
There is but one case to consider under „implied status‟ and this is De Brito v.
M.C.I.44
Ms. De Brito entered Canada on a work permit on November 13, 2001. The
work permit was set to expire on August 31, 2002. Five months after working, in April
2002, Ms. De Brito ceased her employment. Prior to her work permit expiring, she
applied for an extension of her work permit (on August 27, 2002) and on July 4, 2002,
she submitted an application for a study permit to the Consulate in Buffalo as she had
been accepted into a 40-week English language program.
44 2003 FC 1379.
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She was scheduled for an interview at the Consulate in Buffalo on October 1,
2002 relating to her study permit. At the time, she had still not received a decision on her
work permit extension as her file was transferred to a local office from the Vegreville
Case Processing Centre. She was denied entry in to the U.S. and upon her return to
Canada, her permit was determined to be invalid and she was issued an exclusion order.
She was found inadmissible for the reason that she should have applied for a visa prior to
entering Canada as per section 11(1) of IRPA which states that a foreign national must,
before entering Canada, apply to an officer for a visa.
The judicial review of the inadmissibility finding was allowed and the officer was
found to have erred in requiring that she obtain a visa prior to re-entry. Regulation 190(3)
states that “a foreign national does not require a temporary resident visa if they are
seeking to enter and remain in Canada solely (f) to re-enter Canada following a visit
solely to the United States… if they (i) held a study permit or work permit that was
issued before they left Canada on such a visit or were authorized to enter and remain in
Canada a temporary resident, and (ii) return to Canada by the end of the period initially
authorized for their stay or any extension to it.”
The Court held that the respondent was wrong that implied status only applied so
long as she stayed in Canada. The Court disagreed noting that Regulations 183(5) and (6)
provide for implied status until a decision is made. The Court found that Ms. De Brito
fulfilled the requirements of Regulation 190(3) in that she held a work permit that had
been issued prior to departing Canada and attempted to return by the end of the period
initially authorized for her stay. The Court noted that she only left Canada to attend her
24
interview. She had only attempted to attend her interview to comply with the legislation
and so it was manifestly unfair to deny her re-entry.
Practitioners should be careful about advising clients who wish to leave Canada
while awaiting a decision on their extension application when the original work permit
has expired and they are in implied status. If the client is contemplating a trip to a
location other than the United States or St. Pierre and Miquelon as contemplated in
Regulation 190(3)(f), the implied status and extension application will die and visa-
requiring clients will need to apply for work visas at the appropriate visa office.
If, however, the client wishes to go to the United States and seeks to re-enter
Canada after a visit to the United States (and the client has not travelled from the United
States to some other country), and the client holds a work permit or has implied status
and is returning to Canada prior to the end of the work permit or no decision has been
made on the work permit extension, then as per De Brito, the client will not be
inadmissible. Further, the fact that Ms. De Brito was attempted to enter the United States
to attend an interview related to her study permit only made her inadmissibility finding
manifestly unfair. My reading of the case is that the judicial review would have been
allowed even if she had sought entry as a tourist or to visit friends or family and therefore
De Brito could be relied on for these situations as well.
Note, however, that implied status is quite different from the ability to continue
working. Regulation 186(u) states that a foreign national may only work until a decision
is made on the extension application “if they have remained in Canada after the expiry of
their work permit.” A recent Operational Bulletin titled “New Directives on Implied
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Status,”45
states that a temporary resident with implied status who has left Canada may be
allowed to re-enter Canada but:
[t]hey may not resume work or study in Canada until their application for renewal
has been granted. For those not able to resume work, they must satisfy the POE
[Port of Entry] Officer that they have sufficient means of support. (Note that this
applies to foreign nationals who are TRV [Temporary Resident Visa] exempt as
per R 190(3)(f) and to those on multiple entry visas.”46
The Operational Bulletin also states that a temporary resident who has left Canada may
be allowed to apply for a new work permit at a Port of Entry provided they have a right to
do so under the regulations.47
Conclusion
Ms. Reddy and I noticed that our papers were getting quite lengthy and so we
decided to limit the discussion to the themes above. We did read several cases relating to
the Live-in Caregiver program and themes such as dual intent, the educational
requirement and the experience requirement emerged. Perhaps the Live-in Caregiver
work permit cases are an interesting avenue for a future paper.
In any event, while the jurisprudence relating to work permits is limited and
sometimes somewhat contradictory, principles have emerged and we hope our papers will
be useful to the immigration bar. It may seem odd to advocate for litigation but it is my
view that greater certainty for all will result if more practitioners take unreasonable
decisions to court. While I have encountered absolutely no litigation relating to LMOs,
45 See Operational Bulletin 092, dated January 15, 2009. 46 Ibid. 47 Ibid.
26
perhaps a brave practitioner will venture into this area with the result of improved and
more transparent decision-making in this area.
