Does your company recruit employees from abroad? If so, how a visa officer determines your employee’s connection to Canada and his or her home country can affect the success of the work permit application.
In the recent case of Lamber Singh v. The Minister of Citizenship and Immigration, 2017 FC 894, the Federal Court found a visa officer’s decision to refuse a work permit to Mr. Singh was unreasonable where the visa officer had concluded that he was not satisfied the individual would leave Canada at the end of the authorized two-year period.
When recruiting employees from abroad, hiring managers should make sure that prospective employees who apply for work permits get proper advice to allow them to show that they will leave Canada when their Canadian work terms are up – even if there are long-term goals of applying for Canadian permanent residency.
This case concerned Mr. Singh, a 34-year-old citizen of India, who had been legally employed in Singapore since 2009. He had a wife and three daughters as well as various extended family all of whom remained in India. He had no family whatsoever in Canada.
While in Singapore, Mr. Singh had been employed as a construction worker; however, he had previously worked in India’s agricultural sector.
In November of 2016, Mr. Singh received an offer of employment from a Canadian company to work as a farm worker in Chilliwack, British Columbia. This offer was supported by a labour market impact assessment. A labour market impact assessment is a document issued by the government of Canada, allowing an employer to hire a foreign worker after the employer has proven that there is no Canadian citizen or permanent resident willing and able to take the job.
The Immigration and Refugee Protection Act, SC 2001 c 27, holds that foreign nationals seeking to enter or remain in Canada must establish two things:
- that they hold the visa or other document required under the Regulations; and
- that they will leave Canada by the end of the period authorized for their stay.
It was consideration of this second requirement that caused the visa officer to reject Mr. Singh’s application.
The visa officer’s chief was not satisfied that Mr. Singh would leave Canada at the end of the two-year period. The officer’s core finding was that, “Though [Mr. Singh] has family and property [in India], I am not satisfied as to the establishment and ties [in that country].”
In coming to this decision, the officer considered Mr. Singh’s long absence from his family in India while he had been working in Singapore; the fact that he would be switching from the construction to agricultural sector; and his poor employment prospects in India.
Following this rejection, Mr. Singh submitted additional documentation in support of a request for reconsideration. Nonetheless, the officer again refused the application.
Mr. Singh then decided to seek judicial review of the decision. And the Federal Court agreed that the visa officer’s decision was unreasonable and that Mr. Singh’s application should be remitted to another officer for reconsideration.
In siding with Mr. Singh, Chief Justice Crampton found that the visa officer should have given weight to the following facts:
- Singh had consistently visited his spouse and children each year for extended periods;
- all of his extended family were in India, and none whatsoever in Canada;
- his father had recently transferred land in India to him; and
- he had other significant assets in India, including savings, a family home, a car and a farm tractor.
Although Mr. Singh had already been away from his family for almost eight years while working in Singapore, the Court was satisfied that Mr. Singh would in fact leave Canada after the authorized two-year period.
The Court also pointed to the fact that Mr. Singh had never failed to comply with Singapore’s immigration laws.
This point is important to note: a foreign national’s compliance with the immigration requirements of another country is a factor Canadian authorities will consider in assessing his or her likelihood of compliance with Canada’s immigration laws.
All in all, this case brought new light to the process by which visa officers determine a foreign national’s connection to Canada and his or her home country when deciding whether he or she is likely to leave Canada at the end of the authorized period.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.