Being charged an illegal recruitment fee wasn’t an abuse, because the temporary foreign worker had made the payment “voluntarily,” wrote an immigration officer.
Neither was it an abuse when another migrant worker was terminated after complaining about a work condition, nor when an alleged victim of workplace abuse failed to first lodge an official complaint against the boss with employment standards enforcement authorities.
These are some of the examples cited in a study released Wednesday examining the barriers faced by vulnerable migrant workers in accessing a federal program meant to protect those who have experienced abuse or who are at risk of abuse at work.
“The written reasons for decisions reveal a troubling narrative with respect to the lack of understanding of the unique vulnerabilities and complex legal issues faced by workers and the difficulty that workers have in accessing justice,” said researcher and study co-author Amanda Aziz, a staff lawyer of British Columbia’s Migrant Workers Centre.
“The written decisions showed a great deal of inconsistency and confusion around what an immigration officer considers and what constitutes abuse.”
Launched in June 2019, the Vulnerable Worker Open Work Permit program lets abused migrant workers apply for an open work permit, so they could leave an abusive, exploitative or dangerous workplace.
According to the study, 2,481 applications were made under the special program up to July 31, 2021. Of those, 2,345 were processed and 57.1 per cent were granted.
Researchers reviewed immigration officers’ written reasons for decisions for 30 separate worker applications submitted in British Columbia under the special program. The workers came from 12 different countries and the majority were employed in agriculture, in-home care work, or restaurant and food service.
Almost all of the 30 applicants reported financial abuse, including unpaid wages, unpaid overtime and excessive work hours, payment of a wage less than the wage listed on their employment contract, and the payment of recruitment fees.
Seventy per cent said they suffered psychological abuse, including verbal insults, threats and discriminatory comments, while 30 per cent experienced physical abuse. Three reported sexual abuse by their employer; two said they were forced to perform sexual acts; and one was coerced to send pictures of a sexual nature by text to the employer.
Although 21 of the 30 applications were approved at first instance — and four more after appeals, the report found immigration officials took a very narrow view of what constituted a financial abuse and that psychological abuse was accepted only in cases where significant evidence was presented.
While cases involving unpaid overtime and excessive work hours or unpaid wages were often recognized as a form of financial abuse by an officer, the collection of recruitment fees in order to secure employment — an outlawed practice in Canada — was not.
Kishorkumar Ahir was hired by a family in Vancouver as an in-home caregiver for an elderly man in 2018 after paying $7,000 to an immigration consultant to secure him a job. He said he was later reassigned to work as a laborer at the employer’s tire shops even though his work permit restricted him to working as a caregiver only.
The 46-year-old worker from India said he had no choice and complied with the employer’s request. Although he was found to have paid the recruitment fee, an officer in refusing his open-work-permit application concluded that he had “willingly paid the fee” and there was “no indication that he was coerced into paying the fee.”
“Worst of all, the information I shared in my application about the work my first employer required me to do… was shared with the Canada Border Services Agency,” said Ahir, who was subsequently accused by the federal agency of breaking the rules by working outside his caregiving job.
“I have recently been issued a removal order because of not telling immigration about this work before I applied for my first work permit.”
The report identified other fairness issues with the process: workers interviewed by immigration officials for their application can’t be accompanied by legal counsel and must provide their own interpreters, who cannot be friends or relatives.
Even if an abused worker is successful in obtaining an open-work permit, it is typically issued for 12 months only. During that time, the worker must find a new employer to sponsor an employer-restricted work permit in order to stay here, which exposes them to further abuse due to their reliance on an employer to keep their status.
“This system makes migrant workers uniquely vulnerable to abuse and fearful of speaking out about any abuse they face in their workplace for fear of losing their job,” Aziz said.
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