Canadian Employment Law Today

FOREIGN workers who want to come to Canada to fill a need in the labour market must have a work permit relating to the specific jobs in which they intend to work. Work permits apply to specific jobs, so it doesn't mean a foreign worker who's been accepted can simply move to other work if things don't work out. In particular, a foreign worker who leaves employment in Canada and goes back to his home country can't return to Canada expecting to work in a different job on the same work permit, even if it's still valid. In such circumstances, there may be a question of whether the foreign worker intends to return home once the work permit expires — especially if the worker makes comments raising such suspicions. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2015 CASE IN POINT: IMMIGRATION Foreign worker sent home after using old work permit Worker's failure to demonstrate intention to return home results in exclusion order MUST AN APPLICANT for a work per- mit demonstrate that he has the intention and ability to return to his country of resi- dency after the expiry of his work permit? Recently, in Barua v. Canada (Minister of Public Safety and Emergency Preparedness) the Federal Court of Canada had to decide that the answer to that question is yes. Rajib Barua, a citizen of Bangladesh, first came to Canada in 2004 as a student and recently held a work permit. However, he left his job at a Petro Canada gas station in British Columbia and returned to Bangla - desh to get married. He then returned to Canada and used his still valid work permit to re-enter, even though he was no longer employed. He subsequently obtained an offer of employment at another Petro Can - ada station in the Yukon and attended at the port of entry to apply for a new work permit. He was interviewed by two Canada Border Services Agency (CBSA) officers who recommended that he be excluded from Canada based on concerns that he would not leave Canada upon the expiry of his work permit. e first officer who interviewed Barua set out his account in a declaration filed as part of the court record. According to that officer, Barua admitted using his work per - mit to enter Canada, knowing there was no job to support it. Further, Barua stated that he intended to reside permanently in Canada and he would not return to Ban - gladesh even if a return ticket were pur- chased for him, as it would be harder for him to find employment there and he had limited resources. e second interviewing officer confirmed the same information and an exclusion order was issued pursuant to the Immigration and Refugee Protection Act (IRPA). Section 20(1)(a) of the IRPA requires that a foreign national who seeks to enter or remain in Canada with the in - tention of becoming a permanent resident must be in possession of a visa to that effect. Clearly that was not the case with Barua Further, s. 41(a) of the IRPA makes a for- eign national "inadmissible for committing any act or omission which contravenes dir- ectly or indirectly a provision of this act." e examining officer arrested Barua on the basis that he was unlikely to appear volun- tarily for removal. Barua argued that the primary issue was whether the officers properly considered the effect of s. 22(2) of the IRPA, which al - lows people who intend to permanently im- migrate to Canada to nevertheless become temporary residents, so long as they also in- tend to abide by the law respecting tempor- ary entry. According to Barua, the exclusion order should not have been issued because there was no evidence either examining of- ficer considered the question of dual intent. Worker had years of compliance Further, Barua argued that, although he in- tended to permanently reside in Canada, that was possible in the future once he had complied with all the requirements of the IRPA. He contended that he was attending at the port of entry precisely to obtain a valid work permit and he had obeyed all the rules for nine years before the exclusion or - der. He argued that it was unreasonable for the examining officers not to consider his favourable history of compliance, which far outweighed any of the comments he made after he was refused entry to Canada. Barua relied on Sibomana v. Canada (Citizenship and Immigration), where the court allowed an application for judicial review on similar facts. Barua noted that his history of compliance was longer than that of the applicants in Sibomana. Also, as in Sibomana, he said that the officer should have relied upon s. 22 of the IRPA and should have considered his dual intent rather than issue an exclusion order under s. 20(1)(a) of that legislation. e Minister of Public Safety and Emer - gency Preparedness noted that only the exclusion order had been challenged for ju- dicial review and the decision to deny the work permit was not at issue. e minister also noted that Barua was given an oppor- tunity to withdraw his application to enter Canada but he instead said to the officers at the interview that he intended to remain in Canada permanently. Further, the matter had to be analyzed in context: Barua had re-entered Canada with his previous work permit knowing that the job associated with it was no longer available, and he told the examining officers that he was travelling alone but then identified a friend travelling with him. ese facts raised concerns about Barua's honesty. erefore, the decision to issue an exclusion order was reasonable and well within the range of acceptable and pos - sible outcomes. It was open to the officers to rely on the applicant's statements that he would not leave Canada. Last, the minis- ter said that the officers' notes were made contemporaneously with the event, while the applicant's affidavits presented in court were only sworn after he was refused entry, and that was a relevant fact for the court to consider, as was the case in the 2014 deci - sion in Muthui v. Canada (Citizenship and Immigration). e court noted that established juris- prudence is that the decision of an officer should not be interfered with if it is in- telligible, transparent, justifiable, and falls within the range of possible, acceptable outcomes that are defensible in respect to the facts and the law. e court can neither reweigh the evidence that was before the of - ficers, nor substitute its own view of a pref- erable outcome. e court took issue with Barua's affidav- its, which provided further evidence that was not before the officers at the time the decision was made concerning his exclusion order. e court relied on the extensive juris - prudence — including the 2012 case of As- sociation of Universities and Colleges of Can- ada v. Canadian Copyright Licensing Agency (Access Copyright) — holding that the gener-

• Cover