The Federal Court reviewed the
refusal of Meirong Liu’s work permit and multiple-entry temporary resident visa
application for employment as an in-home caregiver. Although the prospective
employer had received a positive Labour Market Impact Assessment, the visa
officer questioned the genuineness of the job offer because of concerns about
the employer’s financial ability to pay Ms. Liu. The Court found that the
officer relied on speculation despite substantial evidence of available funds
and gave no opportunity to address the concern. The decision was both
procedurally unfair and unreasonable.
Key Principle
A positive LMIA does not compel a
visa officer to issue a work permit or prevent an independent assessment of
whether an employment offer is genuine. However, where an officer intends to
reject apparently clear evidence of an employer’s financial ability and refuse
the application on that basis, the officer cannot rely on speculation without a
reasonable evidentiary foundation and deny the applicant or employer an
opportunity to address the concern.
Background
Ms. Liu, a Chinese citizen, had
worked for a mobile communications company from 2003 until 2017. She then
completed a six-month in-home caregiver training program, including 300 hours
of hands-on kindergarten caregiver training, and briefly worked as a nanny.
She applied for a two-year
live-in caregiver position in Vancouver. Her prospective employer was a single
mother with a 10-year-old child requiring before-school and after-school care,
light housekeeping and meal preparation.
The application included the
employer’s 2016 Notice of Assessment showing employment income exceeding
$30,000 and a Bank of Montreal statement showing a balance exceeding $300,000.
ESDC had also issued a positive LMIA confirming that the proposed employment
met Temporary Foreign Worker Program requirements.
The officer nevertheless refused
the application, noting the employer’s relatively low income, questioning the
source and continuing availability of the substantial bank funds, and referring
to Ms. Liu’s recent entry into caregiving.
Court Findings
• Financial Concerns Were
Based on Speculation
The officer acknowledged the bank
statement showing substantial funds but questioned where the money came from
and whether it remained available. The Court held that the officer could not
impugn apparently clear evidence of financial capacity without a reasonable
basis. The adverse financial inference was, at best, speculation.
• Applicant and Employer
Should Have Been Given an Opportunity to Respond
The Court recognized that work
permit applicants are owed a relatively low degree of procedural fairness and
that there is no general statutory requirement for an interview. However,
because the unexplained financial concern became the basis for refusal,
fairness required an opportunity, whether in writing or otherwise, to address
it.
• Positive LMIA Was Relevant
but Not Determinative
The Court did not hold that the
positive LMIA required approval. A visa officer retained discretion to
independently assess the application and genuineness of employment. The problem
was the manner in which the officer rejected the financial evidence despite the
positive LMIA and supporting documentation. The Court separately found no error
of law.
Outcome
The Federal Court granted
judicial review, set aside the refusal, and remitted the application to a
different officer for reconsideration. No question was certified.
Case
Citation:
Liu v. Canada (Citizenship and Immigration), 2018 FC 866 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst
