Ms. Nusrath, a citizen of India,
applied for a Canadian work permit to work as a live-in caregiver for a family
with three boys aged 11, 14, and 17. She submitted supporting evidence
concerning her education as well as a Labour Market Impact Assessment.
The visa officer refused the
application on the basis that she had not demonstrated that she was capable of
performing the proposed employment. The Federal Court found the refusal
unreasonable.
Key Principle
A visa officer must assess an
applicant’s ability to perform proposed employment on the basis of the
evidentiary record and the applicable requirements. An officer cannot
substitute personal or subjective assumptions about whether an applicant is
capable of performing the job.
Background
The Applicant sought a work
permit for employment as a live-in caregiver. Her proposed duties involved
caring for three children who were 11, 14, and 17 years old.
In support of the application,
she provided evidence relating to her qualifications, including her educational
background and a positive LMIA.
The Officer nevertheless refused
the work permit because the Applicant had allegedly failed to demonstrate that
she could perform the proposed work.
Federal Court Analysis
The Court reviewed the decision
on the reasonableness standard under Canada (Minister of Citizenship and
Immigration) v. Vavilov, 2019 SCC 65.
Justice Heneghan held that the
Officer’s decision failed to meet the required standard of justification,
transparency, and intelligibility.
The central problem was that the
Officer appeared to rely on subjective views about the Applicant’s ability
to care for three children aged 11, 14, and 17, rather than grounding the
assessment in the evidence before the Officer.
The Court specifically found that
this approach was inconsistent with the guidance in Russom v. Canada
(Citizenship and Immigration), 2012 FC 1311.
Although visa officers are
entitled to assess whether a foreign national is able to perform the work for
which a permit is sought, that assessment must be connected to the evidence and
cannot rest on personal assumptions about the nature of the job or the
applicant’s capabilities.
Practical Significance
Nusrath is useful in work
permit judicial reviews where an officer concludes that an applicant is
incapable of performing the proposed employment without adequately connecting
that conclusion to the evidence.
The case supports the argument
that an officer cannot replace an evidence-based assessment with personal
impressions or assumptions about what a particular occupation requires.
Where the applicant has submitted
evidence of qualifications and the officer nevertheless concludes that the
applicant cannot perform the job, the reasons should explain the evidentiary
basis for that conclusion.
Outcome
The Federal Court granted the
application for judicial review and remitted the work permit application to a
different officer for redetermination.
No question was certified.
Case
Citation:
Nusrath v. Canada (Citizenship and Immigration), 2020 FC 767 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
