The Federal Court has dismissed an application for judicial review by a man who sought to challenge a decision by an immigration officer that denied him and his family permanent residency under Canada’s Temporary Resident to Permanent Resident (TR to PR) Pathway. This program was designed to assist temporary residents in transitioning to permanent residency if they met specific eligibility criteria.
The key issue in this case revolved around whether he was employed at the time of his application on May 6, 2021 — a requirement for applicants seeking permanent residency under the essential worker category. The court upheld the decision, finding that the immigration officer’s determination was reasonable and did not violate procedural fairness principles.
Background and context
S.K., who had been employed in Canada as an essential non-healthcare worker, applied for permanent residency under the TR to PR Pathway. His work permit expired in April 2021, just before he filed his application, and he had not been actively employed since October 2020 due to a lack of available work. Although he had recently taken up a new job in July 2021, this was after the date of his application.
The program’s eligibility criteria, detailed in Immigration Guide 5069, specify that applicants must submit documentation proving current employment, such as pay stubs and T4 slips. However, S.K. was unable to provide pay stubs dated after October 2020. Additionally, he presented no work permit showing authorization to work after April 2021, which led the immigration officer to question his eligibility.
Court’s analysis
The court cited Canada (Minister of Citizenship and Immigration) v. Vavilov, highlighting that its role was not to reassess the merits of the decision but to evaluate its reasonableness and adherence to procedural fairness. In this case, the court determined that the immigration officer’s decision was both reasonable and procedurally fair.
The court pointed out that S.K. had received two procedural fairness letters, giving him ample opportunity to address concerns regarding his employment status. These letters specifically requested evidence of his employment, which S.K. did not provide. In his responses, S.K. acknowledged that his employment had been interrupted due to COVID-19, which affected his employer’s ability to provide work. He also requested leniency based on these circumstances.
However, the court emphasized that the immigration officer’s discretion was limited to the criteria specified in the program guidelines, which do not allow flexibility in employment verification. As the court noted, “the Minister may, in examining the circumstances concerning a foreign national, grant that person permanent resident status or an exemption…if the foreign national complies with any conditions imposed by the Minister” (IRPA, s 25.2). However, such discretion does not extend to employment criteria, which are mandatory under the TR to PR Pathway.
Procedural fairness and employment status
S.K. argued that an interview would have provided him an opportunity to further explain his circumstances and support his request for leniency. However, the court found that the absence of an interview did not constitute a breach of procedural fairness. The immigration officer’s decision was based on clear evidence that S.K. did not meet the employment requirement, regardless of any additional context an interview might have provided.
The court also examined whether the immigration officer had discretion to waive or modify the employment requirement. While the program allows some flexibility concerning medical and police certificates, there is no provision for discretion regarding employment status. As a result, the officer’s decision to deny the application was reasonable within the constraints of the policy.
Implications for employers and HR professionals
For HR professionals and immigration lawyers, this ruling underscores the strict application of the TR to PR Pathway’s eligibility criteria, particularly regarding employment verification. Employers sponsoring temporary workers who may wish to apply for permanent residency should ensure that these employees maintain continuous employment and possess valid work permits to support their applications.
The case also highlights the importance of thorough documentation. Employers should be prepared to provide recent pay stubs and other proof of employment to support such applications. Any lapses in employment or expired work permits can result in ineligibility, as seen in this case.
Finally, the ruling demonstrates that judicial review is not an avenue to seek leniency but rather to assess the reasonableness and procedural integrity of the administrative decision. As noted by the court, “disagreement with conclusions reached by a decision maker is never sufficient on judicial review.” Applicants must adhere to program requirements, as discretionary flexibility is limited.
For more information, see Kumar v. Canada (Citizenship and Immigration), 2024 FC 1613 (CanLII).
