CIMM – Réseau d'aide aux travailleuses et travailleurs migrants agricoles du Québec and Open Work Permit for Vulnerable Workers Refusals – February 7, 2024

ISSUE

Le Réseau d'aide aux travailleuses et travailleurs migrants agricoles du Québec (RATTMAQ) and Member of Parliament (MP) Brunelle-Duceppe have made allegations and suggestions about the processing of open work permits for vulnerable workers (OWP-V) in Montreal.

Data – OWP-V Approval Rates

Key Messages

Allegation that there was a significant increase in refusal rates (RATTMAQ/MP)

• There is no evidence to substantiate a significant increase in refusal rates nationally, or in Quebec.
• Following the concerns raised by RATTMAQ about a sudden increase in refusal rates, Immigration, Refugees and Citizenship Canada (IRCC) reviewed approval rates both in Quebec and across Canada, and determined that approval rates have fluctuated across years, with no clear pattern.

Allegation of a single officer refusing a large number of applications (MP)

• Upon hearing of the concerns previously raised in committee, IRCC investigated the allegation that an employee may be refusing applications disproportionately.
• We can confirm that after an initial review of approval rates per officer specific to the office in question, we did not find any evidence of bias, discrimination or racism in refusing applications. However, there were some cases of irregular application of processes outlined in program guidance. Consequently, IRCC is currently conducting a broader review of our procedures across all our offices to ensure that any other irregularity is dealt with swiftly.
• The Department has a quality assurance program that includes monitoring the quality of officer decisions in general to ensure consistency and identify potential biases in decisions. When errors, training gaps, or inconsistencies are identified, actions are taken immediately to address specific situations. Such actions can include the redetermination of decisions, providing additional training or clarifying procedures to ensure consistency.

Allegation that officers rarely request an interview (RATTMAQ)

• Interviews are generally conducted when officers need more information to make a decision and the information cannot be gathered using request letters, or if there are credibility concerns.
• The Department has provided additional guidance through program instructions and OWP-V working group meetings to aid staff in determining whether they should request an interview.

Allegations that applications are automatically refused when the clients have left their current job (RATTMAQ)

• Applications should not be automatically refused if clients have left their current job.
• IRCC has clear instructions to officers on this. Processing officers are instructed to be cognizant of an applicant’s employment status and consider that they may have been terminated by an employer as retribution or reprisal, which would constitute abuse.

IRCC could use a prima facie rule to approve applications with pending complaints before the Commission des normes, de l’équité, de la santé et de la sécurité du travail (RATTMAQ)

• Officers are required to consider all documents and information submitted with an application, including evidence that the applicant has made a complaint to provincial labour boards, or any other group or law enforcement agency across Canada in another province or territory.
• While evidence of a complaint would be considered by an officer as a supporting document, it cannot be used as the sole basis to approve or deny an application. The approach to an assessment is that officers review each piece of evidence or fact presented by the applicant using a test on the balance of probability, and then globally make a final decision based on the test of reasonable grounds to determine if the applicant meets the eligibility requirements. The decision as to whether or not a work permit is issued rests solely with the officer based on the information before them.

Observation that some applications are refused shortly after being submitted, sometimes within 24 hours (RATTMAQ)

• OWP-V applications are considered on a priority basis because of the vulnerability of applicants, to ensure these clients are able to urgently leave their employment.
• Some applications may see very quick decision times if additional information has not been requested by officers.
• For example, one eligibility requirement for an open work permit for vulnerable workers is to hold an employer specific work permit. If IRCC receives an application from a client who doesn’t meet this basic eligibility requirement, the assessment can take place very quickly.

Common reasons for OWP-V refusals

Repeat applications

• Approximately 25% of the OWP-V application intake are repeat applications, which contributes to refusal rates.
• Refused applicants are often re-applying multiple times without a change in their circumstances hoping for a different outcome.
• The OWP-V application is fee-exempt to ensure vulnerable workers have access to the permit regardless of their financial situation. This also facilitates re-application compared to other lines of business that are not fee-exempt (i.e. regular work permits).

Other reasons for refusal

• Since 2019, approximately 15% of refused applicants did not hold a valid employer-specific work permit at some point prior to applying for the OWP-V, which makes them ineligible for the OWP-V.
• We have seen anecdotally that some applicants apply when they are in a precarious situation, but they aren’t necessarily experiencing abuse (e.g. a client was laid-off due to business closures, but has been paid and treated fairly).
• Applicants were unable to demonstrate that they were experiencing abuse or at risk of experiencing abuse in the context of their employment.
• Applicants are not currently in Canada, as required.
• Applicants who were issued an OWP-V often apply for an extension of their OWP-V, but they are not eligible for renewal.
  • Migrant workers are eligible for a renewal only if their previous employer-specific work permit is still valid (that is, it has not been revoked and is not invalid under section R209), and they continue to meet other requirements of section R207.1. Once the employer specific work permit has been replaced by an open work permit, applicants are not eligible for renewal under this program.

Note: Recently, the Department updated the OWP-V refusal letter so that the reasons for refusal are more clearly communicated to the applicant. As per Program Delivery Instructions, officers are instructed to enter detailed notes and a record of their decision, clearly explain the reasons for the decision, as well as reflect how the decision made is in accordance with the Immigration and Refugee Protection Act and its Regulations. The Department also has a quality assurance process where the quality of officer decisions are reviewed and monitored in order to identify training gaps, inconsistencies, and ensure actions are immediately taken to address situations. The Department is in the process of doing a quality assurance exercise of a random but representative sample of cases to determine reasons for refusal and review the decision-making process.