Last updated on March 11th, 2021
Last Updated on March 11, 2021 by Steven Meurrens
Section 207.1 of the Immigration and Refugee Protection Regulations (the “IRPR”) states that (modified for ease of reading):
207.1 (1) A work permit may be issued under section 200 to a foreign national in Canada if there are reasonable grounds to believe that the foreign national is experiencing or is at risk of experiencing abuse in the context of their employment in Canada and if they
(a) hold a work permit; or
(b) previously held a work permit, have applied for a renewal of that permit and are authorized to work in Canada under implied status.
Family member of vulnerable worker
(2) A work permit may be issued to a foreign national in Canada who is a family member of a person described in paragraph (1)(a) or (b).
In other words, temporary foreign workers in Canada who are experiencing, or have experienced abuse, can apply for open work permits. People who have engaged in unauthorized work or have not complied with employment conditions are not excluded from the program.
The objectives of IRPR r. 207.1 are to:
- provide migrant workers who are experiencing abuse, or who are at risk of abuse, with a distinct means to leave their employer;
- mitigate the risk of migrant workers in Canada who are leaving their job and working irregularly (that is, without authorization) as a result of abusive situations
- facilitate the participation of migrant workers who are experiencing abuse, or who are at risk of abuse, in any relevant inspection of their former employer, recruiter or both; and
- help migrant workers in assisting authorities, if required (noting that this is not required for the issuance of the open work permit), by reducing the perceived risk and fear of work permit revocation and removal from Canada.
To qualify, applicants must demonstrate evidence of abuse.
Abuse consists of any of the following:
- physical abuse, including assault and forcible confinement;
- sexual abuse, including sexual contact without consent;
- psychological abuse, including threats and intimidation; and
- financial abuse, including fraud and extortion.
|Type of abuse||Description||Examples|
|Physical abuse||Physical abuse generally involves physical contact intended to cause feelings of intimidation, pain, injury, or other physical suffering or bodily harm.||
|Sexual abuse||Sexual abuse generally encompasses any situation in which force or a threat is used to obtain participation in unwanted sexual activity as well as coercing a person to engage in sex against their will.||
|Psychological abuse||Generally, psychological abuse is a pattern of coercive or controlling behaviour, iterated threats or both.||
|Financial abuse||Financial abuse is described as a form of abuse where one person has control over the victim’s access to economic resources.||
Specific examples of abuse include where the
- employer, recruiter or both have coerced the migrant worker into paying exorbitant job placement and recruitment fees;
- employer is repeatedly not paying wages owed to the migrant worker;
- migrant worker is repeatedly harassed (for example, unwanted physical or verbal behaviour that is offending or humiliating) by a co-worker in their workplace;
- migrant worker is forced to work in an unsafe work environment;
- migrant worker is threatened by their employer if they complain about their work conditions;
- migrant worker has exited an abusive situation but would be at risk of abuse if they returned; and
- migrant worker may not be directly experiencing abuse but may be in a situation where their co-workers are being abused by their employer, putting them at risk of experiencing an abusive situation.
Evidence of Abuse
Evidence of abuse and risk of abuse may include but is not limited to the following:
- a description of the abuse or risk of abuse faced by the migrant worker;
- a letter, statement or report from an abuse support organization, medical doctor, health-care professional or other such entity;
- a sworn statement (affidavit) by the applicant;
- a copy of an official complaint form filed with an enforcement agency; and
- supporting or additional material, such as victim impact statements, hard copies of email messages, photos showing injuries or working conditions, witness testimonies.
The standard that visa officers must adhere to is a “reasonable grounds to believe,” which is described as follows:
|Standards of proof (higher to lower)||Description||Officer’s assessment|
|Beyond reasonable doubt||No doubt; convinced||Not applicable|
|Balance of probabilities||Likelihood of something being true||Step 1: Officers must be satisfied on a balance of probabilities (50 + 1%) that the facts and evidence provided by the migrant worker occurred and are credible.|
|Reasonable grounds to believe||More than a mere possibility; would satisfy an ordinarily cautious and prudent person||Step 2: Officers must determine if they have reasonable grounds to believe that abuse occurred or that there is a risk of abuse.|
|Mere suspicion||Simply an emotional reaction that it might be possible||Not applicable|
There is some precedent that being a victim of abuse can constitute reasons for granting humanitarian & discretionary relief in a permanent residence application. In Kaur v. Canada (Citizenship and Immigration), 2018 FC 777, Justice Ahmed set aside a visa officer’s refusal of an H&C application involving someone who was a victim of employer abuse. He noted:
A troubling implication of the officer’s decision is that foreign workers who endure fraud or abuse in the course of their employment, and who are threatened with termination and deportation, can expect little sympathy from those who administer Canada’s immigration laws. I do not mean to suggest this was the officer’s intention. But the officer’s decision to ascribe only little weight to the appalling circumstances surrounding the loss of Ms. Kaur’s employment in Canada was not, in my view, consistent with the approach mandated by the Supreme Court in Kanthasamy. I am also left in some doubt whether the officer performed “the requisite analysis of whether, in light of the humanitarian purpose of s 25(1), the evidence as a whole justified relief” (Kanthasamy at para 45).