Kaur v. Canada (Citizenship and Immigration), 2021 FC 590 : Work Permit Refusal Set Aside After Applicant Was Not Given Notice of Employer Credibility Concerns

The Federal Court reviewed Amandeep Kaur’s refusal of a work permit under the Temporary Foreign Worker Program. The officer questioned whether her employment offer was genuine, particularly because of the salary and the employers’ finances. The Court found the process procedurally unfair because the applicant was not told the underlying concern before the interview.

Key Principle

Although temporary work permit applications generally attract a low level of procedural fairness, a higher level may arise when an officer questions the genuineness or credibility of information. Where an officer relies on such concerns, the applicant must receive adequate notice and a meaningful opportunity to respond.

Background

The applicant, an Indian citizen with nursing and caregiver qualifications, was offered a live-in caregiver position in Surrey. Her duties involved caring for her employer’s elderly mother. The proposed wage was $18.50 per hour. The officer questioned the genuineness of the offer because the applicant’s brother lived near the employers, she had previously been refused Canadian tourist visas, and the salary appeared high relative to the employers’ household income.

Court Findings

• Officer Recognized That an Interview Was Required

The officer’s notes stated “Interview required,” showing that the officer recognized a need to give the applicant an opportunity to address concerns about the genuineness of the employment offer. However, the interview invitation did not identify the nature of those concerns.

• Applicant Was Not Given Adequate Notice

The officer’s financial concern was that paying the proposed salary would leave the employers’ household income only slightly above the applicable LICO for a family of five. The Court held that the applicant could not meaningfully address this concern during the interview without prior notice or an opportunity to consult her prospective employers.

• Concern Was Subjective Rather Than a Formal Requirement

The concern did not arise from a failure to meet a formal requirement under IRPA or the Regulations. Instead, the officer questioned whether the employers would reasonably incur the expense of hiring the applicant. Because the concern was based on an inference about the employers’ financial ability, procedural fairness required an opportunity to address it.

• Applicant’s Brief Response Did Not Cure the Problem

During the interview, the applicant was asked about the employers’ ability to pay and responded that “they have the money.” The Court found this insufficient because she had not been given advance notice of the specific financial concern or a meaningful opportunity to obtain information from the employers.

• Officer Could Not Rely on Speculation

The Court held that an officer cannot, without a reasonable basis, impugn evidence of financial ability where the record contains evidence supporting the employer’s ability to pay. Adverse inferences based on speculation can render a decision both procedurally unfair and unreasonable.

• Meaningful Opportunity Requires Knowing the Case to Meet

The central defect was not the existence of the officer’s concern but the manner in which it was raised. Once the officer decided that the genuineness of the employment offer required investigation, the applicant needed sufficient information to understand the concern and respond effectively.

Outcome

The Federal Court allowed judicial review and remitted the matter to a different visa officer for redetermination. No question was certified for appeal.

Case Citation:

Kaur v. Canada (Citizenship and Immigration), 2021 FC 590 (CanLII)