• Foreign Worker on Workers’ Comp Denied Temporary Resident Status
  • March 27, 2013 | Author: Sergio R. Karas
  • Law Firm: Karas Immigration Law Professional Corporation - Toronto Office
  • Can an Immigration Officer review a public document concerning an applicant for Temporary Status in Canada without providing him with the opportunity to address the information she found? This issue arose in Vidakovic v. Canada (Minister of Citizenship and Immigration)[1]. In that case, a foreign worker, who was a citizen of Bosnia-Herzegovina, entered Canada on a Work Permit. During the course of his employment he suffered a leg injury while working as a temporary foreign worker in British Columbia. He submitted claims to Workers Compensation authorities seeking monetary compensation for his injury. In the course of his claim, his passport expired and he sought to renew it from the Bosnian Embassy. However, he was informed that due to an equipment malfunction, passports could not be issued. In light of the fact that his Work Permit was about to expire, he applied for a Temporary Resident Permit for the further period of one year, indicating in his application that he had a claim pending at the Workers Compensation Appeal Tribunal in British Columbia. The applicant was apparently under the impression that the appeal would determine all of his compensation claims arising out of his injury. However, that tribunal determined only a portion of the claims, namely the claim for a permanent partial disability award for chronic pain, but did not determine the remainder of the claims such as a loss of earnings award or compensation for psychological conditions. The tribunal’s website indicated that the case had been “decided”.

    Upon reviewing the application, the Immigration Officer reached a negative decision and communicated it to the applicant. The Officer determined from the Worker’s Compensation Appeal Tribunal’s website that a final decision had been made on the claims and she was therefore satisfied that the applicant had had sufficient time in Canada to deal with his compensation appeal. Further the Officer indicated that she was not satisfied that the issuance of a Temporary Resident Permit was warranted and found that the applicant had not presented evidence to suggest that he would be unable to obtain a Travel Certificate from the Embassy of Bosnia-Herzegovina that would allow him to return to his country. The applicant was left without status and was directed to leave Canada.

    The Federal Court addressed the only issue arising out of the request for judicial review: did the duty of fairness require the Officer to follow up with the applicant regarding the Worker’s Compensation Appeal Tribunal decision? The court determined that that was an issue of procedural fairness to which the standard of correctness applied and no deference was due to the Officer’s decision[2]. Therefore, the court engaged in an analysis of the facts.

    In order to determine whether the Officer made an erroneous finding of fact with respect to the issue of whether the Worker’s Compensation Appeal Tribunal’s decision was final, the applicant argued that he was not aware that the Immigration Officer had consulted the Tribunal’s website and that the Officer did not inform him of her findings. The applicant also argued that the Officer should have sought additional comments from him before coming to her decision so that he could have advised the Officer that the Tribunal had not reached a final determination of his entire claim, and that there were still outstanding claims. The court rejected that argument. While the court noted that the Tribunal’s website stated that the applicant’s case had been “decided”, it held that the Officer was entitled to rely upon the information on the website, which was also available to the applicant. The Officer had no way of knowing that a case labeled “decided” was not, in fact, complete. The applicant was aware that the determination of his case was relevant to his Temporary Resident Permit application. The court noted that it was the applicant’s responsibility to provide the Officer with a copy of the Tribunal’s decision, which was in his possession and that, had he done so, the Officer would have been able to take this into account in reaching her decision. The court held that the Officer did not have the onus of investigating whether the case was not complete despite the supposed finality of the Tribunal’s decision. The court relied upon the decision of Kisana v. Canada (Minister of Citizenship and Immigration)[3] and held that the duty of fairness is variable and contextual and it was not breached in this case.

    The court also rejected the applicant’s argument that the Officer erred in fact because her understanding of the Tribunal’s decision was incorrect. The court noted that the Officer did not have the full text of the decision before her and that, therefore, she was entitled to rely on the Tribunal’s website to determine whether the case had been decided. The court dismissed the application for judicial review.

    This case highlights the importance of providing all relevant information to an Immigration Officer when filing an application for Temporary Resident status or for a Work Permit. Immigration Officers are not under a duty to make further inquiries when relying on information that is publicly available or solely within the applicant’s control. The applicant bears the onus of providing the authorities with all relevant information and to explain his situation clearly and thoroughly.

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    [1] [2011] F.C.J. No. 808

    [2] (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras 129, 151; Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392 (F.C.A.) at para 46)

    [3] 2009 FCA 189, [2010] 1 F.C.R. 360 (F.C.A.) at para 45