Igbedion v. Canada (Citizenship and Immigration), 2022 FC 275 : Work Permit Refusal Upheld Where Applicant Lacked Valid Status and Failed to Establish an Applicable LMIA Exemption

The Federal Court dismissed the Applicant’s judicial review of a refusal of a work permit application made under a temporary COVID-19 public policy. The Applicant argued that his truck-driver position was LMIA-exempt and that the public policy allowed him to apply from within Canada despite his expired status. The Court found that he did not satisfy the mandatory eligibility requirements of the policy. Pasted text

Key Principle

Where a public policy requires an applicant to have valid status in Canada and a positive LMIA or an LMIA-exempt offer of employment, the applicant bears the burden of establishing those requirements. An unsupported assertion that proposed employment is LMIA-exempt is insufficient. Further, an applicant cannot rely on maintained or deemed status where an earlier application has already been refused. Pasted text

Background

The Applicant was a British citizen who had previously held a work permit under the International Experience Canada program, which expired on March 14, 2020. He had applied for an extension before expiry but was advised that he had exhausted the maximum period permitted under that program. He did not take steps to change his status to visitor before his work permit expired. Pasted text

The Applicant later applied for another work permit but that application was refused. On December 31, 2020, he submitted a further application under a COVID-19 public policy that permitted certain visitors in Canada with valid job offers to obtain employer-specific work permits without leaving Canada. He claimed that his proposed truck-driver position was LMIA-exempt and therefore did not require a positive LMIA. Pasted text

Court Findings

• LMIA or valid exemption required: The public policy required an applicant to have either a positive LMIA or an LMIA-exempt offer of employment. The Applicant provided neither a positive LMIA nor evidence identifying an applicable LMIA exemption code. The Court therefore found it reasonable for the Officer to refuse the application on this basis alone. Pasted text

• Applicant bears the burden: The Court rejected the Applicant’s unsupported assertion that his truck-driver position was LMIA-exempt. He cited no authority establishing the exemption and did not identify an applicable exemption code. The Court emphasized that the Applicant was responsible for demonstrating that he met the policy requirements. Pasted text

• No valid status: The public policy also required the Applicant to have valid status in Canada as a visitor when the application was submitted. His status had expired on March 14, 2020, and his earlier April 2020 application had already been refused on July 3, 2020. Accordingly, he could not rely on that outstanding application to claim deemed status on December 31, 2020. Pasted text

• No procedural fairness breach: The Court rejected the argument that the Officer was required to warn the Applicant about deficiencies such as the absence of an LMIA or the need for restoration. Visa applicants are generally entitled only to a limited degree of procedural fairness, and officers are not required to advise applicants of deficiencies or provide an opportunity to cure them. Pasted text

Outcome

The Federal Court dismissed the application for judicial review. The refusal of the work permit remained in place, and no question was certified.

Case Citation:

Igbedion v. Canada (Citizenship and Immigration), 2022 FC 275 (CanLII)