A Summary of Temporary Foreign Worker Jurisprudence

In a previous blog post I wrote about the court developed principle that immigration officers can not simply look at socio-economic factors when determining whether a temporary foreign worker is likely to leave Canada at the end of his/her authorized period of stay.  The Federal Court recently affirmed this principle in Kindie v. Canada (Citizenship and Immigration), 2011 FC 850.

Justice Rennie”s judgment provides an extremely useful summary of the common law principles guiding visa officers when assessing temporary foreign worker applications.

These principles are:

  1. An officer shall issue the visa if all other conditions are met (such as eligibility to perform the job, not being inadmissible, etc.) if it is established that the foreign national will leave Canada at the end of the authorized period of stay in the visa.
  2. The decisions are highly discretionary and the findings of fact are entitled to deference.
  3. There is an onus on the foreign national seeking to enter Canada to rebut the presumption that they are entering as an immigrant.
  4. The degree of procedural fairness that is required in the context of a work permit application from abroad falls at the low end of the spectrum.
  5. There is no obligation to provide lengthy reasons to the applicant.
  6. For the purpose of determining reasonableness, the officers notes do form part of the reasons for decision.
  7. Simply because an officer’s reasons indicate factors which the officers considers determinative does not mean that other evidence was ignored.
  8. The weight to be assigned to each factor is a matter for the officer’s discretion.
  9. In a judicial review, an officer cannot, through an affidavit, fill in the gaps in the reasoning by identifying further factors or considerations.
  10. Economic reasons to overstay will not, in and of themselves, support a refusal.
  11. Officers are required to situate applications in their broader context.

In Kindie, the last two principles were applied to dismiss the application for judicial review.  The visa officer had determined that it was unlikely that the applicant would return back to his country of origin because of 1) the difference in socio-economic conditions that would apply to the applicant between the home country and Canada, and 2) the the applicant’s mother had recently declared refugee status after applying for visitor status, and the applicant intended to work in the same city as where his mother lived.

The court noted that while the first reason alone would be insufficient, it was reasonable for the visa officer to question the bona fides of the application given the family history.  Specifically, it noted that:

it would be unreasonable to require the Visa Officer to turn a blind eye to the surrounding circumstances, including the recent conduct of family members.

 


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