Liu v. Canada (Citizenship and Immigration), 2018 FC 866 : LMIA-Supported Work Permit Refusal Set Aside Where Officer Speculated About Employer’s Financial Ability Without Giving an Opportunity to Respond

The Federal Court granted judicial review of a refusal of a work permit and temporary resident visa application supported by a positive LMIA. The officer concluded that the employment offer was not genuine because of concerns about the prospective employer’s financial ability to pay the Applicant. The Court found that the officer’s concerns were based on speculation despite evidence showing substantial funds and that the Applicant and prospective employer were not given an opportunity to address those concerns. Pasted text

Key Principle

Although a positive LMIA is not determinative of a work permit application and visa officers may independently assess whether an employment offer is genuine, an officer cannot reject an application based on speculative concerns about an employer’s financial ability where the record contains evidence to the contrary. Where such concerns become the basis for refusal, procedural fairness may require that the applicant or employer be given an opportunity to respond.

Background

The Applicant, a citizen of China, applied for a work permit to work as a live-in caregiver in Vancouver under a two-year employment contract. She had previously worked in China, completed a six-month in-home caregiver program involving 300 hours of practical training, and had previously complied with Canadian immigration requirements, including returning to China after prior visits to Canada.

The prospective employer was a single mother with a child requiring before- and after-school care. The application included the employer’s Notice of Assessment showing employment income exceeding $30,000 and a Bank of Montreal statement showing a balance exceeding $300,000. Service Canada had also approved the employer’s LMIA application. Pasted text

Despite this evidence, the officer questioned the employer’s financial ability to pay the Applicant, noting that the source and continued availability of the bank funds were unknown. The officer also referred to the Applicant’s recent entry into the in-home caregiver industry and concluded that the employment offer was not genuine.

Court Findings

• Positive LMIA was not determinative: The Court accepted that a visa officer is not bound by a positive LMIA and may independently assess the genuineness of the employment offer and the Applicant’s eligibility for a work permit.

• Speculative financial concerns: The Court found that the officer could not reasonably impugn the employer’s demonstrated financial ability based merely on uncertainty concerning the source or continued availability of the funds. The record contained significant evidence of financial capacity, including the employer’s bank balance and income information.

• Procedural fairness: Although the duty of fairness in visa applications is generally at the lower end of the spectrum, the officer’s financial concerns became the basis for refusing the application. The Applicant and prospective employer were given no opportunity, whether in writing or otherwise, to address those concerns. The Court found that the adverse inference was based at best on speculation and that the refusal therefore lacked procedural fairness.

• No requirement for an interview: The Court clarified that there was no statutory requirement to provide an interview specifically concerning the employer’s finances. The problem was that the officer relied on unsupported adverse inferences without providing an opportunity to respond to the particular financial concern that determined the outcome.

Outcome

The Court found the decision both procedurally unfair and unreasonable. The officer’s decision was set aside and the matter was referred back to a different officer for reconsideration. No question was certified.

Case Citation:

Liu v. Canada (Citizenship and Immigration), 2018 FC 866 (CanLII)