INTERNATIONAL STUDENT WORK PROGRAM REFORM NEEDED

This article appeared today in the Globe and Mail.  The report is not surprising, given the number of international students and the diverse backgrounds they have, both in terms of language ability, type and field of studies, and their desire to find a job to gain the necessary experience to qualify for residency.  This program must be reformed, as not all programs of study are similar. Perhaps the work permits should be restricted to university graduates only, or to specific fields of study, such as engineering and sciences. http://www.theglobeandmail.com/news/national/international-student-work-program-needs-overhaul-report-says/article29463566/

March 31, 2016

International-student work program needs overhaul, report says

By SIMONA CHIOSE 

Citizenship and Immigration Canada finds the majority of those employed through a work permit are in low-skilled jobs in the service sector, and have median earnings that are less than half of other recent university and college graduates

A program that allows international students to work in Canada after graduation is creating a low-wage work force, encouraging low-quality postsecondary programs, and needs to be redesigned, says an internal report from Citizenship and Immigration Canada.
Under the Post-Graduation Work Permit Program international students with degrees from Canadian colleges and universities can work here for up to three years after their programs end. Between 50 per cent and 60 per cent of eligible international students applied for a work permit, the report says, with more than 70,000 people holding permits in 2014.
The program is designed to make Canadian postsecondary institutions an attractive destination and to give international students work experience, making it easier to apply for permanent residence.
But the 35-page report found that the majority of those employed through a work permit are in low-skilled jobs in the service sector, and have median earnings that are less than half of other recent university and college graduates.
"Facilitating this large pool of temporary labour, largely in low-paid positions, may be in conflict with the objectives of the Putting Canadians First strategy," the report states.
That strategy was initiated by the former Conservative government to prioritize employment for Canadians after abuses of the temporary-foreign-worker program came to light. The Post-Graduation Work Permit (PGWP) report was commissioned as part of a larger review of temporary-foreign-worker policies.
The Globe and Mail obtained the report after a nine-month battle. The government initially refused the request. After an appeal to the Information Commissioner of Canada and discussions between the commissioner, Citizenship and Immigration Canada and the newspaper, the government provided a partly redacted version of the report.
Marked "secret," the report reviews six years of the work-permit program, from 2008 to 2014. It raises many questions about how Canada attracts international students and how they transition to citizenship.
Its findings are likely to complicate the recently announced review of how the new Express Entry immigration system is treating international students who want to become permanent residents. Express Entry, introduced in January, 2015, does not award applicants any extra points for studying in Canada, as had been the case under a prior immigration program for international students. As a result, it has been heavily criticized for making it much harder for international students to become permanent residents.
Earlier this month, John McCallum, Minister of Citizenship and Immigration, said the government is launching¹ a federal-provincial task force to look at how Express Entry can better serve this group.
"International students have been shortchanged by the Express Entry system," he said at the time. "They are the cream of the crop in terms of potential future Canadians ..."
The PGWP report, however, suggests that most international students' investment in a Canadian education is not being rewarded by the labour market.
International students with a work permit had median earnings of $19,291 in 2010, compared with about $41,600 for 2013 domestic college graduates and $53,000 for Canadian university grads, according to the review.
There are no explanations for such a poor labour-market outcome in the report, but international students have said it is difficult to find good jobs before they have permanent residency.
Mr. McCallum was not available for comment.
CIC's provincial-federal task force has been widely applauded by advocates for international students and study-abroad groups.
"The new minister fully gets it," said Amit Chakma, the president of the University of Western Ontario and chair of a 2012 task force on Canada's international-student strategy. "In my view, tinkering with [Express Entry] will not help. My view is that a new program should be created targeting international students who study on our campuses," Dr. Chakma said.
About 47,000 international students graduated from Canadian universities last year, according to recent Statistics Canada numbers. They pay tuition fees three to five times higher than domestic students.
A small group of international students fare better than others. Four per cent of graduates who had a work permit went on to become permanent residents in 2014. The group that chose to stay had earnings that are much closer to those of domestic students.
The report also suggests that the current system is leading to issues of program integrity. Changes to the PGWP program in 2008 removed the requirement that students find jobs in their field of study and increased the possible duration of the work permit.
In response, some postsecondary institutions are now offering "low-quality education programs with minimal entry requirements" to take advantage of rules that match the length of the work permit to the length of the degree, the report says.
Canada is the only country to structure work permits for international students in this way.

USING WORK PERMIT WHEN NOT WORKING AT THE JOB NOT A GOOD IDEA

In the case below. a person who had a valid Work Permit used it to enter Canada after he no longer was working for the employer. The result when he was caught? An exclusion order. The Federal Curt upheld the CBSA decision.

Barua v. Canada (Minister of Public
Safety and Emergency Preparedness)

Between
Rajib Barua, Applicant, and
The Minister of Public Safety and Emergency
Preparedness, Respondent

[2015] F.C.J. No. 152

2015 FC 172

Docket: IMM-5323-13

 Federal Court
Calgary, Alberta

Boswell J.

Heard: November 26, 2014.
Judgment: February 12, 2015.

(25 paras.)

---

JUDGMENT AND REASONS

·        BOSWELL J.:-- 

I. Nature of the Matter and Background

1     A delegate of the Minister of Public Safety and Emergency Preparedness [the Minister] ordered Mr. Barua [the Applicant] excluded from Canada pursuant to subsection 44(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] and subparagraph 228(1)(c)(iii) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations]. Under subsection 72(1) of the Act, the Applicant now applies for judicial review. He asks the Court to set aside the exclusion order and return the matter for re-determination.

2     The Applicant is now a 30 year-old citizen of Bangladesh. He first came to Canada in 2004 as a student, and most recently had a work permit that was valid until October 19, 2013. However, he left his job at a Petro Canada station in British Columbia in March, 2013, and returned to Bangladesh to get married. When he returned to Canada on June 22, 2013, he secured entry by presenting his still valid work permit.

3     He soon obtained an offer of employment at another Petro Canada station in the Yukon, and so attended at a port of entry to apply for a new work permit on August 1, 2013. He was interviewed by Border Services Officer [BSO] McGlenn, who prepared a subsection 44(1) report, which recommended that he be excluded from Canada. BSO McGlenn indicated in the report that she had concerns the Applicant would not present himself for removal.

II. Decision under Review

4     The matter then went to BSO Thompson, to whom the Minister has delegated the authority to issue exclusion orders under subsection 44(2) of the Act.

5     BSO Thompson interviewed the Applicant in the waning hours of August 1, 2013, and set out his account of the interview in a declaration. According to BSO Thompson, the Applicant admitted using his work visa to enter Canada in June even knowing that there was no job to which he was returning. Furthermore, the Applicant said that he intended to reside permanently in Canada, and that he would not return to Bangladesh even if a return ticket were purchased for him, as it would be harder to find employment there and he had limited resources.

6     This was consistent with the details recorded by BSO McGlenn in the subsection 44(1) report, so BSO Thompson concurred with her report. Paragraph 20(1)(a) of the Act requires a foreign national who seeks to enter or remain in Canada with the intention of becoming a permanent resident to have a visa to that effect, and paragraph 41(a) makes a foreign national inadmissible for committing any "act or omission which contravenes, directly or indirectly, a provision of this Act." BSO Thompson therefore issued an exclusion order against the Applicant in the early morning of August 2, 2013. He also arrested the Applicant on the basis that it was unlikely that he would voluntarily appear for removal.

III. The Parties' Submissions

·        A. 

The Applicant's Arguments

7     The Applicant says the primary issue is whether the BSOs properly considered subsection 22(2) of the Act, which permits people who intend to permanently immigrate to Canada to nevertheless become temporary residents so long as they also intend to abide by the law respecting temporary entry. According to the Applicant, the exclusion order should not have been issued because there is no evidence that either BSO considered the requisite dual intent.

8     The Applicant says that he fit within that provision. Although he intended to permanently reside in Canada, that intent was down the road once he had complied with the requirements of the Act and Regulations. The Applicant says that there is strong evidence to support that position, as he was attending the port of entry precisely to obtain a valid work permit and had obeyed the rules for nine years before the exclusion order was made. The Applicant says that it was unreasonable for the BSOs not to consider this favourable history of compliance, which far outweighs any of the comments that he made after he was refused entry to Canada.

9     The Applicant submits that this case is like Sibomana v Canada (Citizenship and Immigration), 2012 FC 853, 13 Imm LR (4th) 61 [Sibomana], where Mr. Justice Simon Noël allowed an application for judicial review on similar facts. Indeed, the Applicant notes that he has been complying with the rules for even longer than the applicants in Sibomana. Moreover, as in Sibomana, the Applicant says that the BSOs here should have relied upon section 22 of the Act, rather than paragraph 20(1)(a).

10     In addition, the Applicant points out that the affidavits filed by the BSOs prior to this hearing do not mention that they considered the requirement of dual intent under section 22 of the Act, and so infers that it was not even considered.

·        B. 

The Respondent's Arguments

11     The Respondent notes that only the exclusion order has been challenged in this judicial review application. The decision to deny the work permit was not challenged and the old work permit has long since expired. The Respondent also points out that the Applicant was given an opportunity to withdraw his application to enter Canada, but he instead said he intended to remain in Canada permanently.

12     The Respondent states that the decision before the Court needs to be looked at in context. The Applicant had re-entered Canada with his old work permit when the job associated with that work permit had been terminated, and the Applicant told BSO McGlenn that he was travelling alone but then his friend showed up. These facts raised concerns about the Applicant's honesty.

13     In light of this, the Respondent argues that the decision to issue the exclusion order was reasonable and well within the range of acceptable and possible outcomes. The Respondent submits that both BSOs asked the Applicant directly about his intention to leave if ordered to and he answered that he had no such intention, and that it was reasonable for them to rely on that statement. While the Applicant has a slightly different story, the Respondent says that the BSOs' notes should be preferred since they were recorded contemporaneously, unlike the evidence in the Applicant's affidavit which was only sworn some time after he was refused entry (Muthui v Canada (Citizenship and Immigration), 2014 FC 105 at para 49 [Muthui]).

14     As to the Applicant's argument that the BSOs do not refer to the requirement for dual intent in their affidavits, the Respondent states that stating such would have been inappropriate since they are not permitted to supplement the reasons in the tribunal record.

IV. Issues and Analysis

·        A. 

Standard of Review

15     In Sibomana at para 18, Justice Noël applied the standard of reasonableness with respect to an exclusion order issued under section 44(2) of the Act. Accordingly, the Court should not interfere if BSO Thompson's decision is intelligible, transparent, justifiable, and falls within the range of possible, acceptable outcomes that are defensible in respect of the facts and the law. This Court can neither reweigh the evidence that was before the BSO, nor substitute its own view of a preferable outcome: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 59, 61, [2009] 1 SCR 339.

·        B. 

Was the Border Services Officer's Decision Reasonable?

16     The Applicant attempted to buttress his arguments by providing some evidence in his affidavit filed as part of his application record. For its part, the Respondent filed affidavits of the two BSOs in this case. The general rule in this regard is that the evidentiary record for purposes of a judicial review application is restricted to that which was before the decision-maker (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 19-20, 428 NR 297). Although there are some exceptions to this general rule, none apply to the present case. Accordingly, the additional evidence adduced by the Applicant and by the Respondent subsequent to the date of the decision to issue the exclusion order should not and will not be considered by the Court in reviewing such decision.

17     That said, some of the Applicant's evidence was about what he said at the interview, which is admissible because it was purportedly before the decision-maker (see e.g. Vancouver Wharves Ltd v Canada (Attorney General), 137 FTR 65 at para 5, 3 Admin LR (3d) 159 (TD); Muthui at paras 48-49). However, where it conflicts with the notes of the two BSOs, I prefer their notes because they were recorded contemporaneously (Muthui at para 49).

18     The Applicant's essential argument is that the decision to issue the exclusion order was unreasonable since neither of the BSOs properly assessed the Applicant's dual intent under section 22 of the Act. The Applicant further suggests that issuance of the exclusion order on the basis of paragraph 20(1)(a) of the Act was not reasonable.

19     I disagree with the Applicant that the factual circumstances of this case are identical to those in Sibomana. In Sibomana (as in this case), the applicants had sought entry on the basis of a temporary work permit. However, unlike the Applicant here, the applicants in Sibomana had stated that "although they considered the possibility of obtaining permanent resident status, they intended to leave the country when the temporary status expired" (at para 28, emphasis added).

20     In view of this express intention to leave the country, Mr. Justice Noël determined in Sibomana that the delegate's decision to issue the exclusion order under section 41 of the Act could not be justified or maintained under paragraph 20(1)(a), as that paragraph applies only to entry to become a permanent resident. Accordingly, since the exclusion order should have been issued with reference to section 22, which applies to a temporary resident, the exclusion order under review in Sibomana did not fall within a range of possible, acceptable outcomes defensible in respect of the facts and law.

21     In this case, the record before the Court shows that the Applicant had no intention to leave the country upon expiry of a temporary work permit. The notes of BSO McGlenn dated August 1, 2013 state as follows:

·        Subject was asked if he was allowed into Canada would he depart Canada, subject replied "No Maam" Subject stataed [sic] he has no money to buy a ticket, subject was asked if a ticket was bought for him if he would get on the airplane and return to Bangladesh, subject replied "no maam there is no jobs for me in Bangladesh. Subject was asked if he intended to remain in Canada permanently? He replied "yes" 

The notes of BSO Thompson dated August 2, 2013, are to similar effect:

·        BARUA was asked why he has not yet applied for PR status in Canada, he responded because he had not met the ILETS [sic] requirement 

·        BARUA was asked if the Work Permit application was refused would he leave Canada on his own, BARUA responded "no sir, because I don't have the ticket fare." 

·        BARUA was asked if a ticket were purchased for him, would he leave. BARUA responded, "probably not sir, the situation back home is not the same." 

·        BARUA went on to say there are no jobs there, his family depends on him and if he does not send money there is no food 

·        ... 

·        BARUA was arrested because he is unlikely to appear for removal because: 

·        1) 

BARUA has stated he will not leave Canada 

·        2) 

BARUA has stated even is [sic] an airline ticket were ourchased [sic] for him he will not leave Canada... 

22     In view of the foregoing, it can hardly be said that the Applicant here had the same intention as the applicants in Sibomana as noted above. If anything, the BSOs' notes show that the Applicant's intention here was to enter on the basis that he would be staying permanently, and this being so issuance of the exclusion order with reference to paragraph 20(1)(a) was appropriate and reasonable. This section provides as follows:

·        20. (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish, 

·        (a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; ... 

* * *

·        20. (1) L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver: 

·        a) pour devenir un résident permanent, qu'il détient les visa ou autres documents réglementaires et vient s'y établir en permanence; 

23     The fact that the Applicant had re-entered Canada on June 22, 2013 with his old work permit, knowing his job associated with that work permit had been terminated, and that he told BSO McGlenn that he was travelling alone but then his friend showed up, in all likelihood heightened the BSOs' concerns about the Applicant's intentions upon being allowed entry. Indeed, BSO McGlenn's notes state that the Applicant had been "dishonest during exam, withholding information," and that the Applicant had been afforded the opportunity to withdraw his application for entry.

24     In view of the foregoing, the decision to issue the exclusion order was reasonable in the circumstances of this case. The reasons for such decision are intelligible, transparent, and justifiable and the outcome falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law.

V. Conclusion

25     In the result, the Applicant's application for judicial review should be and is hereby dismissed. Neither party suggested a question for certification; so, no such question is certified.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is dismissed and that no serious question of general importance is certified.

BOSWELL J.

MASSIVE FRAUD SCHEME TARGETTING FILIPINOS ALLEGED, ARREST MADE

http://www.ctvnews.ca/canada/filipinos-among-victims-targeted-in-1-5m-immigration-scam-toronto-police-1.2221835#
http://www.ctvnews.ca/canada/filipinos-among-victims-targeted-in-1-5m-immigration-scam-toronto-police-1.2221835#

STUDY PERMIT WITH WORK COMPONENT SUBJECT OF FEDERAL COURT RULING

A Study Permit is usually granted for full time studies, but many courses have a practical work component. The regulations require that the work component should not exceed more than half the total hours in the course, with some exceptions. The question is whether the study component is so minimal to make the course a work program in disguise.  In the urinal case below, the Federal Court held that the course exemption for the student was not as significant to prohibit granting the Study Permit.

Po v. Canada (Minister of Citizenship and Immigration)

Between
Michelle Wong Ka Po, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 1093

2014 FC 1012

Docket: IMM-2712-14

 Federal Court
Vancouver, British Columbia

Tremblay-Lamer J.

Heard: October 22, 2014.
Judgment: October 23, 2014.

(11 paras.)

---

JUDGMENT AND REASONS

1     TREMBLAY-LAMER J.:-- The applicant seeks judicial review of the refusal by the respondent Minister of Citizenship and Immigration to restore her study permit and co-op work permit.

2     The applicant, a citizen of Malaysia, was studying business at Sprott Shaw College under a student visa. Her programme included 980 hours of coursework and 980 hours of employment through a co-op arrangement for which she held a work permit.

3     Her student visa expired during the programme. She made a timely application for its restoration. The Minister denied the application, giving only the following explanation from the examining officer:

·       I'm not satisfied that you meet the requirements as a genuine student as per R183(1) and co-op work permit as per R205(c). 

4     The officer's notes show that the application was denied because the work component exceeded 50% of the programme, in violation of the Minister's policy. Originally the work component was exactly 50%, but the student received an exemption from five courses. By the officer's calculation, the academic component, excluding the exempted courses, totalled 802 or 826 hours, and the work component remained at 980 hours. Since work represented 54-55% of the programme, she found the applicant to be ineligible.

5     The sole issue is whether the officer breached the applicant's right to procedural fairness by not offering the opportunity to address the officer's concerns.

6     The Immigration and Refugee Protection Regulations, SOR/2002-227, subparagraph 205(c)(i), allow for issuing a work permit "to a foreign national who intends to perform work that ... is designated by the Minister as being work that can be performed by a foreign national on the basis of [being] work that is related to a research, educational or training program".

7     Citizenship and Immigration Canada's Foreign Worker Manual FW 1 (29 January 2013) stipulates in s 5.37:

·       The following academic or training programs and research activities are designated as work which can be performed by a foreign national based on the criteria listed in R205(c)(i), C30: 

·       1. 

foreign students, (excluding those coming to work in medical residency or medical fellowship positions with the exception of those in the field of veterinary medicine), whose intended employment forms an essential and integral part of their course of study in Canada and this employment has been certified as such by a responsible academic official of the training institution and where the employment practicum does not form more than 50% of the total program of study. 

8     On its face, the officer's calculation suggests that employment represents more than the authorized 50% of the applicant's time in the programme. However, the officer does not explain her conclusion that, solely because the applicant was exempted from five courses, "the program ha[d] been changed to a program with a Theoretical component of 802 hours and a co-op work component of 980 hours." Academic institutions routinely offer exemptions for manifest mastery of the material. The exemptions do not change the programme itself; they merely waive coursework when the student has already fulfilled the requirement.

9     For example, a programme that required 168 hours of courses in basic French could reasonably exempt a francophone student from that requirement. He might then find himself with only 802 hours of coursework and a 980-hour co-op. Likewise, the applicant in the present situation might have won a sensible exemption from five courses by demonstrating mastery of the subject matter ("Computerized Accounting Principles", "Database Applications", "Critical Skills in Communication", "Business Writing", and "Powerful Presentations") through prior training, experience, or examination. If so, the visa should not have been denied solely because of the exemption.

10     I recognize that a raft of exemptions could suggest abuse, particularly if they minimized the academic component. The Minister enjoys discretion to deny visas for programmes that are nothing more than ruses to facilitate employment in Canada under the pretence of study. In the case at bar, however, an exemption reducing the academic component from 50% to 45% or 46% of the total does not stand out as a manifest abuse of the work-study scheme. The conclusion that the exemption changed the very nature of the programme requires a stronger basis in fact than the officer provided. In such a case, she should have sought an explanation of the exemption before drawing that conclusion. The officer's failure to give the applicant an opportunity to respond to her concerns, on the facts of this case, amounted to a breach of natural justice.

11     For these reasons, the application for judicial review is allowed and the matter is referred to a different visa officer for redetermination.

JUDGMENT

THIS COURT'S JUDGMENT is that this application for judicial review is allowed and the matter is referred to a different visa officer for redetermination.

TREMBLAY-LAMER J

CASE HIGHLIGHTS CLIENT COMMUNICATION ISSUES

Thsi is a fairly typical case of miscommuniction betewen client and service provider. teh claism seems outlandish and the court rightly rejected it.


Romans v. Howlund International Corp.

Between
Scott Romans and Ayumi Takei, Plaintiffs, and
Howlund International Corp., Defendant

[2010] A.J. No. 1207
2010 ABPC 333

Docket: P0990303754

Registry: Edmonton

Alberta Provincial Court

L.D. Young Prov. Ct. J.

Heard: July 29, 2010; by final written reasons September 27,
2010.

Judgment: October 18, 2010.

(46 paras.)

________________________________________

Decision

1 L.D. YOUNG PROV. CT. J.:-- This is a claim by the Plaintiffs, whereby they allege that the Defendant was negligent in the advice given to them respecting the Plaintiff, Ayumi Takei, obtaining a work permit in Canada. According to the Plaintiffs, this resulted in the Plaintiff, Ayumi Takei, not being able to obtain a work permit until September 2008, which, but for the alleged negligence of the Defendant, she could have received in March 2008. The Plaintiffs further allege that they have incurred the damages set out in their prayer for relief, in an amount totalling $23,470.85, being:



"a. Loss of income based on an approximate gross salary for the Plaintiff, Ayumi Takei, of $3,296.25 per month for 6 months = $19,777.50;


•b. Expenses incurred by the Plaintiffs in a trip to Vancouver B.C. and the attempt to cross the United States border to go to Seattle including air fair [sic ], vehicle rental and airport parking in the amount of $1,324.55;
• c. The initial retainer paid to the Defendant in the amount of $2,100.00; and
• d. Notarized and translated documents required by the Defendant throughout in the amount of $268.80."

At the outset of the trial, Counsel for the Plaintiffs applied to amend the amount claimed to $25,000.00, and Counsel for the Defendant did not oppose the application. As a result, the amount of the Plaintiffs' claim now totals $25,000.00.

2 The Defendant denies the Plaintiffs' allegations and contends that the Defendant prepared the necessary documents and submitted those documents as required by Citizenship and Immigration Canada ("Immigration Canada"), which ultimately led to the Plaintiff, Ayumi Takei, obtaining her work permit.
3 At the trial of this matter, both of the Plaintiffs testified as did their expert, Carla Hess, an immigration consultant. The officer of the Defendant, one Jonathon Dai, who is an immigration consultant, testified, as did the Defendant's expert, Rishi Mittal, who is also an immigration consultant.
FACTS
4 The Plaintiffs, Scott Romans and Ayumi Takei, met while both were travelling in Australia in 2005. Mr. Romans was a Canadian citizen and Ms. Takei was a Japanese citizen. The couple travelled together for some months and eventually, Ms. Takei came to visit Mr. Romans in Calgary, late in 2005 and again in March 2006.
5 Ms. Takei then came to Canada for six months commencing in July 2006. She went to school for the first three months in Vancouver, taking a business-English course and she spent the last three months working in Calgary. This had been arranged through a company called "WISH Vancouver". The company that she worked for in Calgary wanted to hire her full-time and Ms. Takei went to an Immigration Canada office in Calgary to determine how this could be done. Ms. Takei was informed by Immigration Canada that she was in Canada on a visitor's visa and she was not supposed to be working or studying in Canada and that she should leave the Country. According to Ms. Takei's testimony, the officer who met with her put the rejection on her record and stamped her passport accordingly.
6 Mr. Romans and Ms. Takei wanted to further pursue their relationship and decided that Ms. Takei would apply for a "working holiday visa" which would allow Ms. Takei to stay in Canada for one year. They had also discussed living together for one year so that Ms. Takei could then apply for a "common-law visa" which would enable Ms. Takei to stay in Canada for a longer period of time.
7 Ms. Takei did, while she was still living in Japan, apply for the working holiday visa which was rejected by Immigration Canada. According to Mr. Romans, the application for the working holiday visa was rejected because Immigration Canada determined that Ms. Takei's interest in coming to Canada was not to holiday and work but rather, to be with Mr. Romans, her boyfriend.
8 Ms. Takei then came to Canada to visit with Mr. Romans on January 30, 2008. Mr. Romans and Ms. Takei made inquiries of possible employment for Ms. Takei and indeed found an employer, Shiso Japanese Restaurant in Red Deer ("Shiso"), who was willing to hire her. According to Mr. Romans, the owner of Shiso seemed quite familiar with the immigration process and he referred the Plaintiffs to the Defendant, an immigration consulting company.
9 It was Mr. Romans who first contacted the Defendant in mid-February 2008 and spoke with Jonathon Dai, the President of the Defendant. Mr. Romans testified that Mr. Dai indicated that Ms. Takei could be working as soon as one month from the time of the application. Mr. Romans also testified that he advised Mr. Dai of the problem that Ms. Takei had with her visitor's visa that had been arranged through WISH Vancouver and of the rejection of Ms. Takei's application for a working holiday visa. Mr. Romans further testified that he told Mr. Dai that what he and Ms. Takei wanted was for Ms. Takei to come to Canada for one year, so that they could live together, and then apply for a common-law visa for Ms. Takei. Under cross-examination, Ms. Takei agreed that she was aware that this one month time period was just an estimate and that it could take longer.
10 In an e-mail from Mr. Dai to Mr. Romans dated February 15, 2008 [Exhibit 1], Mr. Dai sent the invoice for the services to be provided, which Mr. Romans and Mr. Dai had agreed was to be $2,000.00 (plus GST of $100.00). The e-mail reads, inter alia, as follows:

• "I wish you had told me earlier about Ayumi's problems with CIC, but since I promised Shirley that I will be giving Ayumi the very special rate of $2,000, I will honour it. But this special offer is valid until the end of February 2008. I need to emphasize that although there is no guarantee, we will try our best and hardest to help her. Our latest experience shows that WP applications to a US post can be completed in as short a period as a little more than one month. Once we have received your funds, we will start the process."
The reference to a "WP application" is to a working permit application, which is what Ms. Takei would now be trying to secure from Immigration Canada.
11 There is an e-mail in response from Mr. Romans to Mr. Dai dated February 17, 2008 [Exhibit 1]. The e-mail indicates that Mr. Romans will be forwarding the payment of $2,000.00 "first thing this coming week" and asks some further questions of Mr. Dai.
12 The next e-mail is dated March 12, 2008, from Wendy Yu, an employee of the Defendant, to Mr. Romans [Exhibits 1 and 6] and is addressed to "Scott and Ayumi" and sets out the documents which are needed from Ms. Takei.
13 The Plaintiffs respond by way of an e-mail sent from Mr. Romans to Ms. Yu dated March 12, 2008 [Exhibit 1]. The Plaintiffs express their confusion "on several points" and ask "why was this information not given to us a month ago after we first started with this process ..." and that " several of these requirements cannot be done over night ...". The Plaintiffs apologize for what they call their "frustration" and advise that "one of the major reasons we decided to go with Howlund International is because Johnathan assured us it would reduce delays, and therefore expenses, as opposed to doing this ourselves" and that "the longer this takes, the more expensive it becomes."
14 Ms. Yu then responds by way of an e-mail dated March 13, 2008 to Mr. Romans [Exhibit 1], and addressed to "Scott and Ayumi" to "clarify some of the issues you are confused with". In that e-mail, Ms. Yu advises Mr. Romans that Ms. Takei's "LMO [labour market opinion] application was approved a few days ago by Service Canada" and that, "without this approval, the employer cannot hire Ayumi as a foreign worker." Ms. Yu advises the Plaintiffs that Ms. Takei needs to have reference letters translated from Japanese to English, and that all of the documents to be sent to Immigration Canada as part of her application must be in either English or French. The Plaintiffs are further advised that a short video to "provide the vivid picture of Ayu's English level" and that although a video is not required by Immigration Canada, it would be "really helpful in successfully getting the Work Permit". In the remainder of the e-mail, Ms. Yu outlines the further documentation that is necessary (some required, some not required but helpful to the process) that Ms. Takei must provide.
15 According to Mr. Romans, it was not until May 1, 2008, that Ms. Takei's application was submitted to Immigration Canada. Mr. Romans testified that he then spoke with Mr. Dai on July 17, 2008, to discuss the situation, but also to advise Mr. Dai that Ms. Takei's visitor status would expire on July 30, 2008. An e-mail was sent to Mr. Romans on July 17, 2008 by Ms. Yu [Exhibit 1] which provided Mr. Romans with a copy of the inquiry e-mail that had been sent by the Defendant to Immigration Canada. Mr. Romans further testified that this e-mail confirmed what Mr. Dai had said in their conversation, namely, that Ms. Takei could "stay in Canada for another 90 days after her status as a visitor has been lost" and that Ms. Takei could seek "restoration within 90 days after your status as a visitor ... has been lost." As a result, Ms. Takei stayed in Canada. Ms. Takei did in fact apply for the restoration by way of a written application to Immigration Canada dated August 19, 2008 [Exhibit 3]. In that application, among other things, Ms. Takei wrote that she "was advised by my consultant that I would be working by June 1, 2008."
16 On July 29, 2008, Ms. Yu sent an e-mail to Mr. Romans [Exhibit 1] addressed to "Scott and Ayumi" advising the Plaintiffs that the Defendant had "received a letter from the immigration office in Seattle" and that "Ayumi is required to take an interview at the Seattle immigration office". Further, it advised that "they also require Ayumi to submit additional documents". The e-mail provided information as what documentation was required of Ms. Takei and that she had to present herself at the Seattle immigration office before September 22, 2008.
17 The e-mail in response from Mr. Romans to Ms. Yu dated August 4, 2008 [Exhibit 1] , asked Ms. Yu some further questions of the process and advised her that a trip to Seattle was being planned. The e-mail specifically asked: "What about getting Ayumi back into Canada? (her visitor visa expired on July 30/08). Is there anything we should be doing regarding this? If the interview goes well is there a chance they will issue the work permit while we're there?".
18 Ms. Yu responded by way of e-mail to Mr. Romans on August 5, 2008 [Exhibit 1] addressed to "Scott and Ayumi" to address the Plaintiffs' concerns. Ms. Yu wrote: "there is no specific reason for the interview. According to our experience, most of the cases with interview request are due to the applicant's history. Since Ayumi has been in Canada for several times, the immigration office may doubt about her purpose of the visit." In response to the Plaintiffs' concerns about Ms. Takei re-entering Canada, Ms. Yu wrote: "If Ayumi successfully receives her Work Permit, there will be no difficulty upon her re-entry to Canada, although her visa has expired. If Ayumi is rejected by the immigration officer, upon her entry to Canada, the officer from the customs or immigration may ask her purpose of visit. Ayumi could explain to the officers that she has been rejected for the work permit application. She needs to come to Canada to close her bank account, rent her apartment, explain to the employer, sell her furniture, etc. All she needs to do is to tell them that she needs several months to process some personal issues. After that, she will go back to Japan."
19 Mr. Romans then sent an e-mail in response to Ms. Yu dated August 5, 2008 [Exhibit 1]. His concern was as to what to tell the immigration officer about Ms. Takei's "purpose" and further, "should I go into the interview, or even show up with her?".
20 Ms. Yu responded by way of e-mail to Mr. Romans on August 5, 2008 [Exhibit 1] addressed to "Scott and Ayumi" and wrote: "For Ayumi's case, she can say that she has a friend in Canada, and it is the reason why she frequently comes to Canada for visit. However, it is not good for her application if she says this friend is her boyfriend ... " and that "What immigration officer is looking at is that Ayumi will work temporarily for two years in Canada and does not have any intentions to stay permanently at this moment". Further, that "since [Ayumi] is the applicant, you are not allowed to show up for the interview unless Ayumi needs your help as an interpreter. However according to the job requirement, Ayumi is supposed to have English language ability; so it does not make sense to bring an interpreter with her for the interview."
21 The Plaintiffs went to Seattle, via a flight to Vancouver, and then rented a car to drive to Seattle. This occurred on August 24, 2008. According to Mr. Romans, they could not fly directly to Seattle because he did not have a valid passport but he could drive across the border using his driver's license. At the border, the United States border official expressed a concern with allowing Ms. Takei entry into the United States because she had no formal status in Canada, her visitor's visa having expired. It was explained that if Ms. Takei went into the United States, she may not get back into Canada and she would "be stuck in the U.S. and would be their problem." It was suggested that they speak to the Canadian border officials to see if they would grant Ms. Takei some form of temporary status that would allow her entry back into Canada.
22 The Plaintiffs did just that and went to speak to a Canadian border official who denied Ms. Takei such "temporary status". After bidding them to leave, the Canadian border official in what Mr. Romans described as an "afterthought" indicated to the Plaintiffs that they would "at least need a labour market opinion before you're going to get approved for, you know, this work permit". The Plaintiffs told this border official that they had a labour market opinion in response to which, the border official "went on his computer" and printed out the labour market opinion and told the Plaintiffs that Ms. Takei could get her work permit "right now". The Plaintiffs were advised to go to and pay $150.00 and to come back and it will be given to them. According to Mr. Romans, the border official was not interested in any of the paperwork that the Plaintiffs had brought with them. The work permit was issued [Exhibit 4] and Ms. Takei then went to work at Shiso two or three days thereafter. The issuance of a work permit in this fashion is what is known as a "flagpole application".
23 Mr. Romans and Ms. Takei both testified that at no time had anyone with the Defendant mentioned this process of receiving a work permit at the border (i.e. the flagpole application). Mr. Dai agreed that he did not tell either of the Plaintiffs about a flagpole application. Mr. Dai's position is that it was not in their "best interests" and because of Ms. Takei's previous problems with Immigration Canada it was "not even near consideration". Mr. Dai also testified that his fee for a flagpole application would normally be $8,000.00 because he would attend with his client, usually to the closest border point, at Coutts, Alberta. Mr. Dai also testified as to the possibility of a language barrier creating a problem for Ms. Takei, although Mr. Dai does not speak Japanese and so could not translate for her. He did agree in cross-examination that a flagpole application was technically possible in Ms. Takei's case. He also agreed that it was not a requirement for him to accompany a client to a flagpole application.
24 Mr. Romans testified that if presented with this option, he and the Plaintiff would have opted to proceed in that fashion because he and Ms. Takei would rather than been rejected "sooner rather than later" due to the fact that Ms. Takei was not working and financially, it had been difficult for them as a result. Furthermore, that with an earlier rejection, the Plaintiffs would have looked at an alternate plan of action, perhaps getting married. Ms. Takei also testified that she would have proceeded with a flagpole application had she known about it. Under cross-examination though, both Mr. Romans and Ms. Takei agreed that they would not do anything that would risk Ms. Takei having to leave Canada early and that they both wanted Ms. Takei to stay in Canada as long as possible. Still further, both Mr. Romans and Ms. Takei agreed under cross-examination that if they had been advised by the Defendant that it would cost them $8,000.00 for a flagpole application, they would not have pursued it as an option.
25 The expert who testified for the Plaintiffs, Carla Hess, explained that a flagpole application was one where a person who is legally allowed to be in Canada would, armed with the proper documentation, including a valid passport, labour market opinion and a job offer letter, go to a border crossing, leave Canada and tell the United States border official that you are making a "flagpole turn". You are then directed to return to the Canadian side of the border and deal with a Canadian border official who will process your application. This is something that can be done if one is looking to secure a work permit and is virtually only available to someone who comes from a country where they do not need a permit to enter Canada, which is the case with a Japanese citizen like Ms. Takei. A flagpole application is not something that is promoted by Immigration Canada and is not part of the training of an immigration consultant but the consultants learn of it through experience.
26 According to Ms. Hess, the benefit of a flagpole application is that it is quick. Ms. Hess also testified that there is a risk that the Canadian border official who processes the application may refuse to issue the work permit if everything is not in order and may even refuse to process the application at all and may also refuse the applicant re-entry into Canada. However, in her experience, with her clientele, flagpole applications have been largely successful (perhaps as high as ninety percent). In Ms. Hess' opinion, she would have given Ms. Takei the option of applying in the "usual" way for a work permit (i.e. a written application) or proceeding with a flagpole application, in order that Ms. Takei could have made an informed decision. In Ms. Hess' further opinion, it would be standard for immigration consultants to advise a client of both options, outlining what is required for both, and the risks associated with both procedures, in order that the client could make an informed decision.
27 Mr. Dai did not disagree in any significant way with Ms. Hess' explanation of a flagpole application. Both Mr. Dai and Ms. Hess explained that the application was not without risk. However, Mr. Dai's experience has been that with his clientele, flagpole applications are only moderately successful, i.e fifty percent.
28 Mr. Mittal, who does not have the years of experience as an immigration consultant that both Ms. Hess and Mr. Dai have, also did not disagree in any significant way with the explanations given by Ms. Hess and Mr. Dai as to a flagpole application. In Mr. Mittal's opinion, he would not have recommended a flagpole application for Ms. Takei because "there wouldn't appear to be a need for that kind of recommendation", but he did not further elaborate to any great degree. Under cross-examination, he testified that in his experience, with his clientele, he has had about a thirty percent success rate with flagpole applications. He also testified that if he had been advised by Ms. Takei that it was urgent that she obtain her work permit, "I may have mentioned it [i.e. flagpole application] ... but I would definitely not have brought it up and I would have still sent the application overseas ... or outside the country".
29 The damages the Plaintiffs are claiming have been set forth in paragraph 1 of this decision. A copy of the invoice issued by the Defendant to the Plaintiffs for $2,100.00, together with the bank transaction fee of $6.00 for the bank draft that paid same, were entered into evidence as Exhibit 5. That Exhibit also includes the invoice for the translation of documents totalling $268.80. Yet further, Exhibit 5 includes the receipt for the initial return airfare between Calgary and Vancouver totalling $710.50, which airfare increased by the sum of $525.00 as the Plaintiffs changed their flight to return to Calgary on August 24, 2008. In addition, Exhibit 5 includes the receipt for the car rental from the Vancouver airport to Seattle and return in an amount totalling $76.50 and the receipt for parking at the Calgary airport in the sum of $12.55.
30 With respect to the Defendant's invoice for $2,100.00, it made reference to "consulting service fees for work permit application" and listed four items thereunder: "arrangement of E-LMO [expedited labour market opinion], preparation of work permit application overseas, one time government fees and courier cost included and consultation and advice regarding issues related to the above mentioned matters". The Plaintiffs agreed under cross-examination that the Defendant did obtain the E-LMO and that the Defendant prepared the work permit application and that it would be sent to Seattle. They further agreed that the Defendant paid $150.00 to Immigration Canada when it submitted the original application. Yet further, they agreed that the Defendant did provide consultation and advice respecting the issues related to the obtaining of the E-LMO, the preparation of the work permit application and its submission to Immigration Canada.
31 Mr. Romans and Ms. Takei both testified under cross-examination that the Defendant never agreed to pay for the Plaintiffs' travel costs to Seattle and never agreed to pay for the translation of documents. Furthermore, the Plaintiffs knew that only Ms. Takei was to be interviewed in Seattle.
32 The other portion of the Plaintiffs' damage claim is for the loss of Ms. Takei's income which the Plaintiffs base on a gross salary for Ms. Takei of $3,296.25 per month for 6 months, in the total sum of $19,777.50. Ms. Takei signed her employment contract with Shiso on April 11, 2008 [Exhibit 7]. The Plaintiffs moved to Red Deer on or about May 5, 2008. Ms. Takei's work permit application [Exhibit 8] indicates an expected employment start date of June 1, 2008. Once Ms. Takei commenced her employment, she was a server, and later on, became a supervisor, although the evidence does not disclose when that change in her job took effect. For the approximately four months that Ms. Takei worked in 2008 (September through December), she earned a total of $13,185.00 (or $3,296.25 per month), which sum included her base income and tips [Exhibit 9]

ISSUES

33 Was the Defendant negligent in the services it provided to the Plaintiffs? If so, what damages, if any, flow from that negligence?

DECISION

34 The Plaintiffs have framed their claim in both contract and negligence and submit "that negligence can arise in a contract for services". That is correct. As is set out in the text, The Law of Contracts (2005, Irwin Law Inc.), by John D. McCamus:

• "As a general principle, the traditional doctrine held that once the parties had entered into a contractual relationship, the terms of the contract ought to provide the exclusive source of the parties' mutual rights and obligations. This principle was, in turn, subject to a number of limitations and exceptions of uncertain ambit. In recent years, however, this subject has been greatly simplified by the decision of the Supreme Court of Canada in BG Checo International Ltd. v. British Columbia Hydro & Power Authority. ... For purposes of Canadian law, the Supreme Court swept aside the remarkable complexity of the traditional doctrine of concurrent liability and adopted a straightforward principle that parties who are guilty of tortious misconduct when breaching a contract will be liable concurrently in contract and tort, unless the agreement between the parties stipulates to the contrary."
35 As to the contract between the parties, there was agreement between them that the services to be provided by the Defendant were as set out in the Defendant's invoice, being:

• a.
arrangement of E-LMO [i.e. an expedited labour market opinion]
• b.
preparation of work permit application overseas [in this case, to the Canadian immigration office in Seattle];
• c.
one time Government fees and courier cost included; and
• d.
consultation and advice regarding issues related to the above mentioned matters.
The Plaintiffs acknowledged in their testimony that this agreement was in fact carried out by the Defendant. However, their concern is that the Defendant did not advise the Plaintiffs of the existence of such a thing as a "flagpole application" and that this was negligent on the part of the Defendant and caused them to suffer damages as a result.
36 In order to succeed in their claim, the Plaintiffs must establish that:

• a.
the Defendant owes them a duty of care;
• b.
the Defendant breached that duty of care (that is, the Defendant was negligent); and
• c.
the Defendant's negligence caused the Plaintiffs to suffer damages as a result, with those damages not being too remote (in other words, that the damages suffered were reasonably foreseeable).
37 In the case before me, the Plaintiffs were referred to the Defendant, a professional immigration consulting company, and had dealings with its principal, Mr. Dai, who is a professional immigration consultant and Ms. Yu, the Defendant's employee referred to earlier in this decision. I use the word "professional" in the sense that it denotes a company or individual whose business it is to, in this instance, handle immigration matters for clients. There has been a substantial body of law that has developed with respect to the duty of care that a professional or someone with superior knowledge and skill owes to a client. I find that in the present case, the Defendant, being as I described it, a professional immigration consulting company does indeed owe a duty of care to the Plaintiffs.
38 The question then becomes: what is that duty of care? As set out in the text, The Law of Torts, 3rd Ed., (2007, Irwin Law Inc.) by Philip H. Osborne:

• "A higher standard of care is applied to those persons who represent themselves as having special skill and knowledge that allow them to perform tasks that are normally beyond the capacity of the ordinary person. The public may reasonably expect such people to exercise a degree of skill and knowledge commensurate with that representation. An elevated standard of care applies not only to members of the professions but also to business, commercial, and trades people ... The standard of care is that of the reasonably prudent and competent member of the particular profession or vocation to which the defendant belongs."
So in the case before, did the Defendant breach its duty of care in that it did not advise the Plaintiffs as to the availability of a flagpole application?
39 As I set out earlier in this decision, I not only heard from Mr. Dai, as to what a flagpole application entails, I also heard from two experts, one for the Plaintiffs and one for the Defendant. As I also set out earlier in this decision, the testimony of the experts did not differ significantly on this point. The experts and Mr. Dai all agreed that a flagpole application is not something that is "taught" if you will, to immigration consultants, but it is something that is known to immigration consultants and is something that each of these three immigration consultants have each used with their own clientele, to varying degrees and with varying success. In the case of Ms. Hess, with her clientele, it has been largely successful. In the case of Mr. Mittal, his estimate was that it was successful in approximately thirty percent of his cases and with Mr. Dai, it was successful in approximately fifty percent of his cases.
40 The experts and Mr. Dai all testified that it depends on the circumstances of each case before them as to whether or not those circumstances warrant the making of a flagpole application. The success rate appears to be not insubstantial - somewhere between thirty percent at the low end and up to ninety percent at the high end. I appreciate that these were "guesstimates" by those who testified and that they are case-specific, and I do not doubt that the Defendant reviewed Ms. Takei's circumstances and assessed her chances at success in making a flagpole application, but the concern I have is that the Defendant never advised the Plaintiffs as to the fact that a flagpole application even existed. Counsel for the Plaintiffs takes the position that this constitutes a breach of the standard of care that was owed to the Plaintiffs by the Defendant in that it "did not accord with what would be expected of a reasonable immigration consultant with a similar knowledge". Counsel for the Defendant takes the position that the flagpole option was not recommended because the Defendant did not see it as a viable option.
41 There is no doubt that there are risks to a flagpole application. These were testified to by the experts and Mr. Dai. The biggest risk appears to be that an unsuccessful applicant could be forced to return to their home country with little, if any, time to arrange their affairs in Canada, despite whether or not there is any time remaining on their visitor's visa. That there is no certainty to the application is not in question. Again, the testimony of the experts and Mr. Dai is that the border officials are very unpredictable and may even refuse to deal with such an application outright.
42 Notwithstanding these risks though, the Plaintiffs were not even given an opportunity to hear about a flagpole application and the possibility that it might be an alternative to the method of applying for a work permit that the Defendant advised the Plaintiffs to pursue (i.e. through a written application to Seattle). The situation is somewhat analogous to that of informed consent in the medical cases that come before the Courts. In the Supreme Court of Canada decision in Hopp v. Lepp [1980] 2 S.C.R. 192, Chief Justice Laskin described informed consent as:

• "... [reflecting] the fact that although there is, generally, prior consent by a patient to proposed surgery or therapy, this does not immunize a surgeon or physician from liability for battery or for negligence if he has failed in a duty to disclose risks of the surgery or treatment, known or which should be known to him, and which are unknown to the patient."
In other words, to apply this to the case before me, just because the Defendant had determined to dismiss the possibility of a flagpole application, that does not protect the Defendant from liability if the Defendant failed in its duty of care by not disclosing that possibility to the Plaintiffs.
43 I find that the Defendant has breached its duty of care. Having heard from the experts and Mr. Dai, it would be reasonable for an immigration consultant to have at least advised the Plaintiffs as to what a flagpole application was and to have informed them of the advantages and disadvantages of it, as it was available to Ms. Takei as an option in her circumstances, even if the Defendant believed it was not a viable option. The Defendant should have presented the pros and the cons to the Plaintiffs and did not do so, and thereby prevented the Plaintiffs from making an informed decision as to the best route to take.
44 The Plaintiffs have argued that they have suffered damages as a result of the negligence of the Defendant. I have outlined the Plaintiffs' damages claim earlier in this decision. I will deal with each of them in turn as follows:

• a.
"The initial retainer paid to the Defendant in the amount of $2,100.00."

• The Plaintiffs both agreed in their testimony that the Defendant did indeed do the work that it was contracted to do. Ms. Takei required that this work be done in order for her to apply for a work permit. This work enabled Ms. Takei to be successful in her flagpole application. Consequently, I have determined that the Plaintiffs did not suffer any damage with respect to this portion of their claim.

• b.
"Notarized and translated documents required by the Defendant through in the amount of $268.80."

• The Plaintiffs also both agreed in their testimony that it was their responsibility and their cost to obtain such documents. These were again a necessary part of the work permit application process. Consequently, I have determined that the Plaintiffs did not suffer any damage with respect to this portion of their claim.

• c.
"Loss of income based on an approximate gross salary for the Plaintiff, Ayumi Takei, of $3,296.25 per month for 6 months = $19,777.50."

• According to the written argument submitted by Counsel for the Plaintiffs, this portion of the Plaintiffs' claim is now for Ms. Takei's salary for five and one half months, from March 6, 2008 to August 23, 2008. According to the Plaintiffs, Ms. Takei would have been able to work from at least March 6, 2008, when she was granted a positive labour market opinion and could have applied for her work permit via a flagpole application, and would then not have been idle, without income, until August 24, 2008, when her flag pole application was granted and she was able to work.

• This portion of the Plaintiffs' claim assumes that the Plaintiffs would have proceeded with a flagpole application. According to the testimony of both Plaintiffs, they agreed that if they had known that the Defendant's cost to proceed with a flagpole application was $8,000.00, they would not have been able to go that route, notwithstanding that they wanted to proceed with Ms. Takei's work permit application in as expeditious a manner as possible. There was some contradiction in Ms. Takei's evidence with respect to whether or not she would have made a flagpole application, (assuming cost not being a factor). On the one hand, Ms. Takei testified that she wanted to stay in Canada as long as possible and did not want to do anything to jeopardize the status she had under her visitor's visa, which was not due to expire until July 30, 2008. On the other hand, Ms. Takei testified, somewhat hesitantly, that she would have risked making the flagpole application in March 2008 knowing that it could result in her having to leave Canada as early as sometime in March 2008. This does not accord with the Plaintiffs' evidence as a whole which was that they wanted to be together, for longer terms than had previously been possible, so as to be able to pursue their relationship. I find that the Plaintiffs would not, based on their evidence, have proceeded with a flagpole application.

• However, if I am wrong in that determination, and the Plaintiffs would have proceeded with a flagpole application, then I find that these damages are too remote to be recoverable. There is no way of knowing when Ms. Takei would have proceeded with such application. There is no way of knowing whether or not the flagpole application would have been successful. Just because it was successful on that given day, does not mean it would have been successful on another day, given another border official. One cannot say that but for the negligence of the Defendant, Ms. Takei would have been successful in such application and consequently, the loss of wages does not flow from that negligence.

• d.
"Expenses incurred by the Plaintiffs in a trip to Vancouver B.C. and the attempt to cross the United States border to go to Seattle including air fair [sic ], vehicle rental and airport parking in the amount of $1,324.55."

• The Plaintiffs were aware that Ms. Takei's application for a working permit was being made through Seattle. They were also then made aware that an interview with Ms. Takei was requested by Immigration Canada and that Ms. Takei would need to attend in Seattle for that interview. This was not something that Mr. Romans was required to do, and in fact, was advised by the Defendant that he could not attend with Ms. Takei at the interview. As a result, any costs incurred by Mr. Romans are not recoverable. As for Ms. Takei, these are costs that she would have had to incur as she was required to attend in Seattle. Consequently, her costs are also recoverable.

• I have already determined that the Plaintiffs would not have proceeded with a flagpole application. However, as I indicate in paragraph c. above, if I am wrong in that determination, then there would have been expenses associated with such an application in any event. Those expenses would only be recoverable by Ms. Takei as she, and not Mr. Romans, would have been the one required to attend at such application and there was no evidence led by the Plaintiffs as to what travel expenses would have been incurred by Ms. Takei had she proceeded with a flagpole application. As a result, there is simply no evidence before this Court which would provide me with any basis on which to make any award for expenses under this portion of the Plaintiff's claim.
45 The end result is that the Plaintiffs' claim is dismissed in its entirety as the Plaintiffs have not been able to prove, on a balance of probabilities, that they suffered any loss or damage as a result of the actions of the Defendant.
46 I would like to thank both Counsel for their very capable presentations at trial and for their very thorough written submissions. As for the matter of costs, if Counsel cannot agree on same, they may arrange to speak to me respecting costs through this Court's Trial Coordinator.

L.D. YOUNG PROV. CT. J.

VISA OFFICER MUST ASSESS APPLICANT TIES TO COUNTRY

In this recently reported case, the visa officer failed to assess the applicant's ties to his country when considering a Work Permit application. the case was documented appropriately, and the visa officer should have considered all factors before rejecting it.

Cao v. Canada (Minister of Citizenship and Immigration)

Between
Cao, Chao Qiao, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2010] F.C.J. No. 1152
2010 FC 941

Docket IMM-795-10

Federal Court
Montréal, Quebec

Martineau J.

Heard: September 7, 2010.
Judgment: September 21, 2010.
(15 paras.)
________________________________________

REASONS FOR JUDGMENT AND JUDGMENT

1 MARTINEAU J.:-- Mr. Chao Qiao Cao, the applicant, is a 27-year-old citizen of the People's Republic of China (China). Due to his position as Head Chef in the Urumqi branch of a large chain of restaurants in China, he has been offered to work as a cook at a new Chinese restaurant in Rouyn-Noranda, Québec. He challenges the legality of a decision made by a visa officer (the officer) refusing his application for a temporary work permit.
2 The officer is not satisfied that the applicant is a genuine visitor who will leave Canada upon the expiry of his work permit mainly because the latter has insufficient financial and personal ties to China, considering that the applicant's family is small, his salary in China is modest in light of his relatively high position, he has limited advancement opportunities in China and he would not gain experience readily bankable upon his return to China.
3 The officer's factual assessment is to be reviewed on the reasonableness standard (Dhillon v. Canada (Minister of Citizenship and Immigration), 2009 FC 614, 347 F.T.R. 24 (Eng.) at paragraph 19). For the reasons hereunder, the Court finds that the visa officer's conclusion does not fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law.
4 The applicant has the burden of proof to satisfy the officer that he is a bona fide visitor to Canada and will, indeed, leave the country once his temporary work permit has expired. One large component of this is proving sufficient ties to one's home country. It is clear, on the face of the record, that the applicant discharged himself of this burden of proof, which must not be insurmountable in the circumstances.
5 In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. Thus, a decision that is nominally based on the facts of the case, but in reality draws on generalities and assumptions, will normally fail to meet this standard.
6 Essentially, the officer rejected the applicant's request to obtain a temporary work permit because the pull factor to remain in Canada is strong, but in light of the evidence and case law, such an assumption is simply insufficient to justify this result. More specifically, the officer's analysis is superficial and not axed on the file at hand.
7 As is the case with virtually all applicants for temporary work permits, there is a financial incentive to work in Canada. This fact cannot be held against an applicant, as to do so would result in the rejection of the vast majority of such applications (Rengasamy v. Canada (Minister of Citizenship & Immigration), 2009 FC 1229, 86 Imm. L.R. (3d) 106 at paragraph 14). There must be objective reasons to reasonably question the motivation of an applicant. Just to cite a few examples, past immigration attempts, overstaying in other countries, a criminal past, may provide sufficient basis to doubt that an applicant will leave Canada by the end of the authorized period.
8 In the case at bar, the officer has made no serious effort to test the strength of the applicant's ties to China, especially given that he has no family elsewhere (Li v. Canada (Minister of Citizenship & Immigration), 2008 FC 1284, 76 Imm. L.R. (3d) 265 at paragraph 30), and that there is ample proof of the links that the applicant has with China, supported by the submission of all requisite documents, as well as extra documents:

• a.
The applicant has a wife and one child (the maximum possible, under China's one-child policy) who would both remain in China;
• b.
The applicant's parents and brother also remain in China;
• c.
The applicant's wife owns a house in China, as seen in the copy of the deed, which the officer did not comment on;
• d.
The applicant and his wife have also amassed fairly substantial savings, as seen in the photocopy of the bank certificate. (The officer stated that the photocopy was of poor quality with no apparent security features; however, a photocopy was all that was required and the officer made no attempt to see the original document).
9 In Dhanoa v. Canada (Minister of Citizenship & Immigration), 2009 CarswellNat 2159, 2009 FC 729 (Dhanoa), the Court recently set aside the refusal to grant a temporary work permit because the officer was not convinced that the applicant's family ties in India were sufficient to outweigh the socio-economic opportunities in Canada. Mr. Dhanoa was offered a job as a construction worker in Canada at a much higher salary than he was currently earning in India. On the other hand, he was married with two children, was working on his family farm and was untraveled.
10 Specifically, my colleague Justice Harrington writes at paragraph 16:

• The thought that [the applicant] would abandon his wife and children in order to take advantage of better socioeconomic opportunities here is distasteful. It is rather sanctimonious to suggest that our society is more of a draw for him than India, where he would be in the bosom of his family, simply because he would have 30 pieces of silver in his pocket. As per Timothy 6:10 "for the love of money is the root of all evil."
11 The impugned decision is unreasonable not simply because it is stereotypical, but also because it relies on the very factor which would induce someone to come here temporarily in the first place as the main reason for keeping that person out (Dhanoa, paragraph 18). But there is more to say in this case. In addition to providing all existing documentation to support the above ties to China, the applicant also submitted a declaration whose probative value and relevancy has not been seriously challenged or put into question, either by the officer or the respondent.
12 This declaration directly addresses the question of illegally overstaying a temporary work permit. The applicant states at paragraphs 8 and 9 that both his Canadian employer and his Immigration Consultant had warned him of the perils of overstaying in Canada:

• 8. My Canadian employer also warns me that I have to behave myself according to Canadian law and regulations and that including I must leave Canada before the expiry of my Work Permit, otherwise he will immediately discharge me and take off my privileges with no compensation. I fully understand this warning.
• 9. My Consultant has explained to me in detail as well as warned me that if I do not fulfil my promise and leave Canada before the expiry date of my work permit, I shall become illegal and shall then lose my foreign worker status and privileges, I shall be subjected to the penalty of Canadian laws, I shall be deported and I will not be able to get back to Canada. This will also affect the opportunities for me to go to other countries. This may even deprive the members of my family of the opportunities in future to go to Canada or other countries to work, to study or to reside, etc. I fully understand this. That is why I will never overstay in Canada illegally because I will not be that stupid to spoil my own and my family's future.

13 The decision to submit the applicant's declaration is not a banal gesture. The declaration is a clear statement that the applicant understands the consequences of overstaying his welcome in Canada, and for this reason, it will not happen. It cannot be presumed to be true, as the policy considerations of such a blanket approach would be disastrous: every applicant would simply submit a similar declaration in order to "prove" that he would not overstay his temporary permit. However, the statements made in this declaration must be weighed by the officer in light of the totality of the evidence and the personal circumstances of the applicant.
14 Before this Court, the learned counsel of the respondent also relayed the fact that the usefulness of work experience gained in a small Chinese restaurant in Rouyn-Noranda is questionable, particularly in light of the applicant's lack of advancement opportunities at his present employer. However, no evidence was produced questioning the validity of the job offer, nor any other elements of the applicant's submissions. If credibility were an issue, this should have been stated closely by the officer.
15 In final analysis, the Court notes that the applicant did everything in his power to satisfy the officer that he would leave Canada at the expiry of his work permit. The conclusion reached by the officer that the applicant has not met his burden of proof is unreasonable and must be set aside. The matter shall be returned to the Canadian Embassy in Beijing, China for redetermination by another officer. No question of general importance has been raised by counsel and none shall be certified.

JUDGMENT

THIS COURT ORDERS AND ADJUDGES that the application for judicial review be allowed. The decision of the officer denying a temporary work permit is set aside and the matter returned to the Canadian Embassy in Beijing, China for redetermination by another officer.
MARTINEAU J.