Last Updated on January 27, 2013 by Steven Meurrens
The Federal Court has ruled that a visa officer is entitled to override an opinion by the Department of Human Resources and Skills Development (“Service Canada“) that an arranged offer of employment is genuine.
In Ghazeleh v. Canada (Citizenship and Immigration), the Court had to determine whether a visa officer erred in awarding a Federal Skilled Worker Class applicant zero points for Arranged Employment because the officer was not satisfied by Service Canada’s Arranged Employment Opinion (“AEO“). Specifically, the officer had concerns with the employer’s ability to employ the applicant as the company was losing money. The applicant was unable to alleviate the officer of his concerns.
At Federal Court, the applicant’s lawyer argued that the visa officer erred in overriding the AEO.
The Court, however, disagreed, and stated that Service Canada’s opinion is only the first step in the validation of an employment offer, and does not end the inquiry. Citing Bellido v. Canada (Minister of Citizenship and Immigration), the Court also noted:
HRDC validation is not, as the Applicant submits, sufficient evidence of arranged employment. Such validation does not remove the obligation of the Visa Officer to assess whether the Applicant is able to perform the job described in the validation.
In this case, the visa officer was not satisfied that the applicant could perform the work sought because the officer concluded that the employer’s financial circumstances meant that it could not even pay the applicant to do work.
The Court described the division of responsibilities between Citizenship and Immigration Canada and Service Canada as being:
It is the Minister of Citizenship and Immigration who is accountable, legally, for the decision to grant a visa. To conclude that he was bound by the HRSDC opinion would be either an impermissible delegation of the Minister’s statutory obligations under the IRPA or a fettering of the Minister’s discretion. To conclude, it is the Minister of Citizenship and Immigration who makes the decision, not the Minister of HRSDC. HRSDC rather, offers an opinion.
If that is the case, then there’s a lot of time and money being spent on something to obtain from Service Canada something that is apparently just an “opinion.” While I appreciate that the decision to issue a visa is ultimately Citizenship and Immigration Canada’s (“CIC“), considering the amount of documentation that employers provide to Service Canada to obtain AEOs (and Labour Market Opinions), as well as the fact that Service Canada officers actually speak with the employer (something almost unheard of at CIC) to determine the genuineness of job offers, I think that there should be clear guidelines as to when CIC can overrule Service Canada on their area of expertise. This is only logical considering that administrative law is based on the concept of specialized tribunals with expertise in their respective areas making decisions, and it is Service Canada which is trained to examine the Canadian labour market and an employer’s capabilities.