FavoriteLoadingSave to briefcase | Rating: | By (2012)

  • PrintEmail Link
  • Viewed 198 times | Saved to 328 briefcases
Wijesinghe v Canada (Minister of Citizenship and Immigration), 2010 FC 54 (Link)

Facts:

** W was employed as a cook in Sri Lanka and applied in 2008 for a visa to work as a cook for a job he had been hired for in Calgary --- application was rejected on the basis that he was not skilled enough to be a cook
** W applied again in 2009 for a work permit application pursuant to a kitchen helper position he had secured at another restaurant in Regina. But the visa officer refused the permit on the basis that it was a lower level position than W was qualified for and would not help his career
** Visa officer was also concerned by statements W made about the possibility of applying for permanent residence in Canada once he was here

Issue(s):

Did the visa officer commit a reviewable error by failing to consider all of the evidence provided by the applicant and basing her assessment on an incorrect application of the law?

Ratio:

Accepting a lower level position than one is qualified for is not a basis for denying a work visa.

A foreign national’s duel intention of becoming a permanent resident and applying for temporary work visa/residence cannot be a basis for rejecting their work visa so long as it is not believed that the foreign national plans to remain illegally after the expiry of the visa

Analysis:

Reviewing the officer's decision using a standard of reasonableness, the Court will consider "the existence of justification, transparency and intelligibility within the decision-making process" and "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law":
** Visa officer has failed to consider the evidence that:
*** 1. the applicant applied as a "kitchen helper" since his first application for a work permit was denied because the visa officer found he was not qualified as a "cook"; and
*** 2. the applicant explained that he was applying as a "kitchen helper" so that he can develop at the restaurant into a full-time "cook", i.e. demonstrate to his employer on the job that he has the qualifications.
*** Hence why he would be willing to accept a lower level position

Subsection 22(2) of IRPA provides that a foreign national can have a duel intention to apply for temporary residence as well as eventually permanent residence and that this intention to be a permanent resident cannot form the basis for refusing a visa for temporary residence such as a work permit, as long as the visa officer is satisfied that the applicant will leave Canada at the conclusion of his work permit and not remain in Canada illegally: Rebmann v. Canada (MCI), 2005 FC 310.

Holding:

The failure of the visa officer to consider the applicant's relevant evidence renders erroneous the factual and legal inferences which underlie the decision. The officer's decision is therefore unreasonable and cannot be sustained.
** matter sent back for redetermination by another visa officer


Leave a Comment

You must be logged in to participate.

This document is a general discussion of certain legal and related issues and must not be relied upon as legal advice. This document may not have been written or reviewed by a legal practitioner. For more information, please see the website Terms of Service.