Justice Henry Brown’s decision in Ali Mehfooz v. The Minister of Citizenship and Immigration 2015 FC 165 is a very important reminder to employers of foreign workers as to the level of scrutiny a company supporting a TFW/PR Applicant will receive.
The Facts
In Mehfooz, the Applicant applied for the Canadian Experience Class (“CEC”) category on the basis that he had worked 1,952 hours for Today Employment and HR Ltd. as an Account Manager Sales. The Applicant claimed that work at Today HR qualified him as a Corporate Sales manager, as defined by NOC 0601.
CIC (as it then was called) requested more information from the Applicant about Today HR and the Applicant’s working hours. The Applicant included information about Today HR demonstrating the firm had 308 employees, revenue of 1.2 million in 2013, and that the Applicant had worked the hours claimed.
CIC looked up the Dun & Bradstreet [D&B] database and found that the search was “inconclusive” referring the case to the Anti-Fraud Unit. A follow-up procedural fairness letter was sent expressing “serious concerns” with the application and the Officer’s concerns that the requisite experience was not actually performed by the Applicant. Several documents related to the company were requested including the company’s tax and banking material and an organizational chart listing all employees and positions where the Applicant worked.
The Applicant apparently responded to the letter with an explanation letter claiming that they had experienced website problems due to domain expiry, an organizational chart, and marketing pamphlet materials.
The Officer refused the Applicant’s PR Application.
The Decision
In finding that the decision to refuse the Applicant’s PR Application did not breach procedural fairness and was reasonable, Judge Brown emphasized that ample opportunity was provided to the Applicant to respond to the credibility concerns. He noted that the Applicant should have reasonably anticipated that such information would be consulted and that it was publicly available. Specific reference to the D&B database was not found to be procedurally unfair, as the inconclusive results were not relied upon.
On the reasonableness front, Judge Brown found it was not enough for the job description submitted to simply reproduce NOC requirements and that it was reasonable for the Officer to conclude the evidence submitted was insufficient.
I found that the following line was most instructive and prescriptive to companies going through the process of hiring a TFW or supporting a PR Applicant:
“[23] It was also reasonable to expect Today HR to have a functional website and to find that its organizational structure was confusing. Officers are entitled to rely on common sense.”
What is common sense? Is this in itself a reasonable term in the context of online evidence?
Building a Business Case for Your Company’s Foreign Workers
Ultimately Mehfooz is a good reminder that whether looking forward (through an LMIA or an Offer of Employment) or retroactively (through an Applicant claiming past experience for a PR Application), a strong business case must exist. A company that does not have its essentials down – proper incorporation, registration, adherence to Canadian taxation, etc. will be looked at carefully. Furthermore, this case is a reminder that the stronger the business case made, with respect to revenue and employee base, the paperwork will be expected to back it up.
A Google Search is Interpreted as Today’s Common Sense
Google (a western, English-based search engine) is still considered the sine qua non of online searches. The fact that results did not come up and the website was not active, led to a negative credibility inference that ultimately was not overcome by the company’s response. I was surprised that the Federal Court’s decision in Chen v. Canada (Minister of Citizenship and Immigration) 2015 FC 771 did not make an appearance in the decision. [See my previous post on bad google searches as extrinsic evidence here]
It is interesting to note that a search of D&B Express does actually yield information about the Brampton-based business. Also, their website is currently running.
I would argue that more judicial scrutiny needs to be placed on the Google search as “common sense” or an accurate indicator of a company’s current information. Indeed, there are several companies offering Search Engine Optimization (“SEO”) strategies that can severely distort the results of a Google search. Results can also often differ depending on search engine used. If you try putting a company name through Google, Yahoo, Bing, and Baidu you will get remarkably different results.
Should All Companies that Hire Foreign Workers Have an Online/Social Media Strategy?
This is probably going a bit far, but I would suggest a small and medium-sized company looking to hire foreign workers or supporting a foreign worker through permanent residency, should do a full audit to ensure their online profile matches their actual business profile matches the information listed in an immigration application.
Do all companies that hire immigrant workers need a corporate website? Does the fact a website is empty of information in English and full of stock images diminish the companies credibility? These are questions that I am sure future case law will slowly carve the answers to.
