Jandu v. Canada (Citizenship and Immigration), 2022 FC 1787 : LMIA-Supported Work Permit Refusals Set Aside Where IRCC Unreasonably Reassessed Employer Financial Capacity Without Consulting the Employer or ESDC

The Federal Court granted judicial review in six LMIA-supported work permit applications for long-haul truck drivers. IRCC refused the applications after finding that the employer’s job offers were not genuine based primarily on its assessment of the employer’s financial and business information. The Court found that IRCC’s financial analysis was speculative, relied on inconsistent data, failed to account for the positive LMIAs issued by ESDC, and improperly placed detailed corporate questions on prospective employees who were not positioned to answer them. Pasted text

Key Principle

A positive LMIA is not determinative of whether a work permit will be issued, and IRCC may independently assess the genuineness of an employment offer. However, where ESDC has already conducted a labour-market assessment and issued a positive LMIA, IRCC cannot reasonably disregard that assessment and conduct a speculative financial analysis without properly considering the underlying information or, where necessary, consulting the employer or ESDC. Pasted textBackground

The Applicants were Indian citizens who received offers from Daytona Freight Systems to work as long-haul truck drivers. Daytona had obtained positive LMIAs from ESDC for the positions. IRCC nevertheless questioned whether Daytona was financially capable of fulfilling the employment offers. Pasted text

Two Applicants received procedural fairness letters requesting extensive financial and corporate information. All six were interviewed. IRCC ultimately concluded that the job offers were not genuine. Three Applicants were additionally found inadmissible for misrepresentation on the basis that they were allegedly aware that the employment offers were not genuine. Pasted text

Court Findings

• IRCC may independently assess genuineness: The Court rejected the argument that a positive LMIA automatically established the genuineness of the job offers. IRCC retained authority to independently assess genuineness under the applicable regulatory framework. Pasted text

• Financial analysis was speculative: IRCC compared financial information from different taxation years with a later organizational chart and divided wage figures among employees and contractors without accounting for important distinctions. The Court found that the resulting calculations were unreliable and central to the refusal. Pasted text

• Employer and ESDC should have been consulted: Daytona had already undergone detailed scrutiny by ESDC during the LMIA process. Given IRCC’s concerns about the employer’s finances, it was unreasonable not to consult Daytona or ESDC, particularly when the Applicants were prospective employees who had never worked for the company and did not possess confidential corporate information. Pasted text

• Incorrect regulatory framework: IRCC referred to provisions applicable to LMIA-exempt work permits rather than the provisions governing the LMIA-supported applications before it. The Court found that this created uncertainty about whether the Officer applied the correct legal considerations. Pasted text

• Misrepresentation findings required clear evidence: The Court held that misrepresentation findings require clear and convincing evidence. Finding an employment offer non-genuine did not automatically establish that the Applicants knew it was non-genuine. The evidence did not establish that necessary connection. Pasted text

Outcome

The Court found the work permit refusals unreasonable and quashed the three associated misrepresentation findings. All six applications were remitted to the visa office for redetermination by another officer.

Case Citation:

Jandu v. Canada (Citizenship and Immigration), 2022 FC 1787 (CanLII)