In order to prepare the class for the discussion, select an immigration case, related to your subject, of reasonable length for the class to read. If the case is available electronically, give the class the citation data and how to access it. For example, if you accessed the case through CanLii, then let the class know this. If the case is not available electronically, then you will need to provide the instructor with a print copy before the discussion session in order for the instructor to make copies available to the class.In order to elicit thoughtful responses, draw up a list of questions you would like the students to consider before the class discussion.

Please read the case below and write summary

REASONS FOR DECISION

[1]These are the reasons and decisions of the Immigration Appeal Division (the "IAD") in the appeal by the Minister of Public Safety and Emergency Preparedness(the "appellant")from the decision of the Immigration Division (the "ID") dated March 20, 2017, with respect to Rubelio Ramirez Pinzon (the "respondent"). The respondent was found notto be inadmissible to Canada pursuant tosubsections 41(a) and30(1)of theImmigration and Refugee Protection Act(IRPA).

[2]This appeal is pursuant tosubsection 63(5)of theIRPA.

BACKGROUND

[3]The respondent is a citizen of Guatemala. The respondent entered Canada holding a work permit. The work permit contained information pertaining to,inter alia, the respondent's tombstone data, travel document number, date of issuance and expiry, employer, employment location, occupation, and date of coming into force. Four conditions were also placed on the work permit, as follows:

1.Not authorized to work in childcare, primary/secondary school teaching, health service field occupations.

2.Must leave Canada by 2018/03/29.

3.Unless authorized, prohibited from attending any educational institution, or taking any academic, professional or vocational training course.

4.Not authorized to work in any occupation other than stated.

[4]The occupation stated in the work permit was "ouvrier agricole" (agricultural worker). The name of the employer was listed on the work permit as Luma Genetique Inc. (hereinafter 'the first employer').

[5]The respondent entered Canada on March 30, 2016. The allegation of the Minister before the ID was that, on March 8, 2017, the respondent was located working at a different employer, called Hayter's Farms (hereinafter 'the second employer').

[6]A Report under subsection 44 (1) was issued on March 8, 2017, alleging that the appellant was a person who is inadmissible pursuant tosubsection 41(a) in that, on a balance of probabilities, there are grounds to believe is a foreign national who is inadmissible for failing to comply with theIRPAthrough an act or omission which contravenes, directly or indirectly, a provision of theIRPA, specifically:

The requirement of subsection 30(1) of the Act that a foreign national may not work in Canada unless authorized to do so under this Act.

[7]A referral undersubsection 44 (2)of theIRPAfor an admissibility hearing was made on March 9, 2017.

[8]The evidence at the ID was that the respondent entered Canada and begun work with the first employer, however, sometime later he switched to the second employer without applying for a new work permit. At the time he was discovered working with the second employer, that employer had not applied for the requisite permission (a Labor Market Impact Assessment, or LMIA) to hire the respondent. The second employer did not file an LMIA application until five days after respondent was discovered working there.

[9]Having received testimony, heard submissions, and considered the evidence before her, the ID Member found on March 20, 2017 that the appellant was not inadmissible to Canada.

[10]The ID Member found that the respondent did work for a second employer without complying with the requirement for a new work permit, but that he did not breach these requirements because a condition limiting him from working with other employers was not specifically stipulated on the face of the work permit. Specifically, the work permit (found at page 5 of the Record) limited the occupation in which the respondent could work but did not specifically limit the employer for whom the respondent could work. To this end, the ID Member found that, in leaving the conditions as they were, the Minister may have inadvertently left open the door for the respondent's transition to another employer in the same field. The ID Member also considered Government of Canada information requiring persons in the respondent's position apply for a new work permit, and found that this information should not be deemed to apply to the respondent's circumstances because he had a work permit issued to him which could have been more specific with regards to the terms of engagement. The Minister filed an appeal of the decision on April 19, 2017.

[11]On August 1, 2017, the IAD decided that this appeal will proceed by way of written submissions. The deadlines for the filing of written submissions have passed and this decision will be rendered in chambers pursuant to section 25 of the IADRules.

SUBMISSIONS AND ANALYSIS

[12]The respondent has not filed any submissions in this appeal. Letters issued to him as of July 2017 had been returned marked "moved/unknown". The appellant in this appeal has notified the IAD that its submissions and evidence couriered to the respondent's last known address were returned as undeliverable and that Canada Border ServicesAgency (CBSA)officers attended the respondent's last known address and discovered the persons who subleased his residential unit had not done so since August 2017, and that the respondent did not reside at the unit provided in his address of record.

[13]The IAD is mandated by its empowering legislation to render decisions as fairly and efficiently as possible. The panel renders its decision based on the evidence before it at this time.

[14]The evidence before the panel at this appealde novois that the appellant entered Canada and began work for his first employer, who is listed on his work permit. He then switched employers in the absence of an LMIA approval for the subsequent employer and in the absence of a new work permit.

[15]Having considered the evidence before me, I find that clear, simple instructions are provided to temporary foreign workers by the Government of Canada, as found at page 17 of the Record. These instructions are as follows "Unless you have an open work permit, you will also have to apply for a new work permit." The evidence is that the respondent's work permit is not designated as the open work permit. To this end, the respondent should have applied for a new work permit when changing employers. The above instruction is specific and not open to interpretation. The instruction is followed by this text "make sure to ask your new employer for a copy of the positive LMO (Labour Market Opinion) [formerly LMIA]... letter and annex. Once you receive these documents, you may then apply to Citizenship and Immigration Canada (CIC) for new work permit." I do not see these requirements as being annulled by fact that the respondent's work permit does not specifically list a restriction against working for another employer.

[16]As correctly observed by the ID Member, some text in the general Government of Canada instructions for Temporary Foreign Workers is generic. The statement "Unless you have an open work permit, you will also have to apply for new work permit.", however, statement encompasses every circumstance and is unambiguous. I cannot find that the failure to limit the respondent's work permit to one specific employer overcomes the requirement that he apply for a new work permit when changing employers, especially in the face of clear evidence that his is not an open work permit.

[17]The instructions on the Government of Canada site were available to the respondent just as they are available to all foreign nationals holding foreign work permits in Canada pursuant to this country's numerous temporary worker pilot projects. The Minister's evidence before the ID and at thisappealde novoestablishes that the respondent had an understanding of the need for an LMIA and a new work permit prior to commencing work with another employer.

[18]Interpreting the absence of specific limitations from the face of a work permit as an authorization to breach general, public work permit program requirements would open the door to any number of violations of the work permit programs, which would then be excused by a visa officer's failure to specify every single possible limitation on the face of a permit. This is not a viable approach to program administration. When a foreign national enters Canada subject to the conditions of their particular program, it is their obligation to ensure that they are aware of those requirements and that they comply with its rules in all respects, including rules governing a change in employers.

[19]I do not view the conditions listed on the work permit as somehow misleading the reader into thinking that he was authorized to work for any employer in Canada as long as he worked within his occupation. Had this been the case, the work permit would not have listed a specific employer. The listing of a specific employer and the clear instructions on changing one's work permit as provided by the Government of Canada website, together overcome the presumption that the absence of a specific employer limitation on the face of the work permit is acarte blanchegiven to the worker as to the choice of employers.

[20]The appellant submits as follows: "One cannot simply infer the cancellation of the standard condition such as the employer the foreign worker must work for by the absence of such a specified condition prohibiting the change of employers when such a condition is standard on employer-specific work permits." I agree. As noted, there are any number of standard unspoken restrictions placed on a foreign worker holding a work permit like the one belonging to the respondent. For example, employment that conforms to local legislation such as theEmployment Standards Actis an unspoken expectation of work pursuant to a work permit. The compliance of the foreign national with immigration legislation and the requirements of their specific work permit pilot program is another unspoken expectation. The failure to specify, on the face of the permit, that work must comply with these requirements does not exempt the respondent from compliance.

CONCLUSION

[21]The appellant has met the onus of proof on a balance of probabilities. Based on the evidence before me and on a balance of probabilities, I find that the respondent breachedsubsections 41(a) and30(1)of theIRPA.

[22]The appeal is allowed and the decision of the ID is set aside. Pursuant tosubsection 67(2)of theIRPA, the panel elects to substitute the decision of the ID Member with its own decision and make a removal order against the respondent.Paragraph 229(1)(n) of theImmigration and Refugee Protection Regulationsindicates that an exclusion order is the appropriate removal order to make in this case. Therefore, an exclusion order is made against the respondent, Rubelio Ramirez Pinzon.

NOTICE OF DECISION

The appeal is allowed. The decisions of the Immigration Division are set aside. An exclusion order is made against the respondent: Rubelio Ramirez Pinzon, D.O.B. February 28, 1980.