Dhaliwal v. Canada (Citizenship and Immigration), 2022 FC 1344 : Court Overturns Work Permit Refusal Based on Unreasonable LMIA Assessment

The Federal Court reviewed Kuljit Singh Dhaliwal’s work permit refusal for farm work in British Columbia. Although the employer had a positive LMIA for 25 temporary foreign workers, the officer concluded the farm lacked resources to employ all 25 and therefore found the applicant’s offer not genuine. The Court found the decision unreasonable and procedurally unfair.

Key Principle

A positive LMIA does not bind a work permit officer on job-offer genuineness, but the officer must assess the specific offer and explain why it fails the statutory factors. An officer cannot rely on unsupported “all or nothing” assumptions about an employer’s capacity to hire every worker authorized under an LMIA, and fairness requires notice of a concern the applicant could not reasonably anticipate.

Background

The applicant was offered full-time farm work at $14.60 per hour. After a procedural fairness letter, he submitted financial records, staffing history, and evidence of labour shortages. The officer calculated the annual cost of employing all 25 LMIA workers and concluded the employer lacked sufficient resources.

Court Findings

• Positive LMIA Was Relevant but Not Determinative

The Court confirmed that the officer had to independently assess genuineness despite the positive LMIA. Relevant considerations included whether the employment met reasonable business needs and whether the employer could fulfill the terms of the particular offer.

• Reasons Did Not Explain Why This Offer Was Not Genuine

The officer identified no defect specific to the applicant’s offer. Instead, the reasoning focused on whether the employer could afford 25 workers collectively. The Court could not determine whether the officer had adopted a statutory interpretation or simply assumed that if all 25 positions could not be filled, none of the offers could be genuine.

• “All or Nothing” Logic Was Unsupported

If the refusal rested on the assumption that all 25 workers had to be employed simultaneously, the reasoning was unreasonable. The record contained only the applicant’s offer, and his employment was conditional on issuance of a work permit. The officer effectively assumed 24 other permits had already been issued when only one had been approved.

• PFL Evidence Supported a Genuine Labour Need

The response explained that the farm had previously employed temporary foreign workers and was relying on scarce contract labour because foreign workers were not arriving quickly enough. This evidence addressed workforce needs, yet the officer did not meaningfully reconcile it with the finding that the offer was not genuine.

• Procedural Fairness Was Breached

The procedural fairness letter requested broad information about recruitment, staffing, finances, and business operations, but did not identify concern about the employer’s ability to hire all 25 workers. The Court found the applicant could have directly addressed that issue had he known it was determinative.

• Bias and Legitimate Expectations Arguments Failed

Five other work permits under the same LMIA were approved after the applicant’s refusal, but this did not establish bias or a legitimate expectation of approval. Legitimate expectations protect procedure, not substantive outcomes, and the evidence fell below the threshold for reasonable apprehension of bias.

Outcome

The Federal Court granted judicial review, set aside the refusal, and remitted the matter to a different officer for redetermination. No question was certified.

Case Citation:

Dhaliwal v. Canada (Citizenship and Immigration), 2022 FC 1344 (CanLII)