Toronto, Ontario, August 16, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of an Immigration Officer (the Officer), dated August 17, 2004, in which Jaspal Sing Malhi (the applicant) was refused his application for temporary resident status with work permit.
FACTS
[2] The applicant is a citizen of India and currently resides there. On June 1, 2004, he received a job offer, certified by Human Resources and Development Canada to work in Ontario as a teacher for a period of 12 months. The applicant therefore applied for a work permit, but was refused, as the Officer was not satisfied that the applicant would leave Canada at the end of the 12 month term. The Officer based this decision on the fact that the applicant had applied for a visitor visa to Canada in 2002 but had been denied, and that the applicant did not have sufficient ties to India.
ISSUES
[3] Did the Immigration Officer commit an error in finding that the applicant did not have sufficient ties to India to justify the issuance of a temporary resident work permit to enter Canada?
ANALYSIS
[4] The pertinent legislation under which the application for temporary residency was denied is paragraph 20(1)(b) of the Act, which reads as follows:
20. (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,
(a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; and
(b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canadaby the end of the period authorized for their stay. [my emphasis]
20. (1) L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver :
a) pour devenir un résident permanent, qu'il détient les visa ou autres documents réglementaires et vient s'y établir en permanence;
b) pour devenir un résident temporaire, qu'il détient les visa ou autres documents requis par règlement et aura quitté le Canada à la fin de la période de séjour autorisée.
[5] Even in applying the most stringent standard of review, the Officer erred in concluding that the applicant did not have sufficient ties to India in denying his request for a temporary resident work permit. I find that the conclusions of the Officer are patently unreasonable, having regard to the totality of the evidence before him.
[6] The Officer seems to rely mainly on the fact that the salary which the applicant would receive in Canada is more than seven times that which he receives in India. However, he uses this single fact to outweigh all other relevant information provided by the applicant, mainly, that his whole family, including his wife and two children will remain in India; that his wife owns a trucking business in India; that he has completed 70% of his PhD studies and that he will not be able to complete these studies if he does not return to India; that his employment in Canada is for a duration of only 12 months, after which he will become unemployed; and finally, that the assets belong to the applicant and his wife total around $60,000, and that if you include the assets of his mother and father, that amount jumps to approximately $350,000.
[7] Overall, it was patently unreasonable for the Officer to determine that the applicant did not have sufficient ties to India, given all of the presented information. I am therefore of the opinion that the application for judicial review should be granted.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review be granted.
2. The visa officer's decision is quashed;
3. Mr. Malhi's application shall be reconsidered by a different visa officer in light of
these reasons;
4. Neither party proposed a question for certification.
"Pierre Blais"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8681-04
STYLE OF CAUSE: JASPAL MALHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 16, 2005
APPEARANCES:
Lorne Waldman FOR THE APPLICANT
Michael Butterfield FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario