Castro v. Canada (Minister of Citizenship and Immigration), 2005 FC 659

Date: 20050510

Docket: IMM-7009-04

Citation: 2005 FC 659

Ottawa, Ontario this 10^th day of May, 2005

Present: THE HONOURABLE JUSTICE VON FINCKENSTEIN                                  

BETWEEN:

                                                     ZENAIDA FORTIN CASTRO

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                The Applicant arrived in Canada under the Live-in Caregiver Program ("LCP") on November 25, 2002 from the Philippines. She has been trying to secure permanent resident status for herself, her husband and their 10 year old daughter. Her husband and daughter remain in the Philippines and she has been separated from them for approximately two years while she has worked in Canada.

[2]                The Applicant worked for her sister from the day she arrived in Canada until March 31, 2003. The Applicant found a new employer and began working for Ms. Melinda and Mr. de Lara on April 14, 2003. She worked for them until February 28, 2004. Her work permit did not expire until April 13, 2004. In March of 2004, the Applicant found another employer, Ms. Grelish who registered her name with the Domestic Workers' Registry. Ms. Grelish then submitted her Application for Foreign Live-In Caregiver to Human Resources and Development Canada ("HRDC").                                                             

[3]                Ms. Grelish did not, however, obtain a confirmation from HRDC because she did not put her home address on the application form. She also decided mid-way through the application process that the Applicant should work for her parents instead. In order for the Applicant to work for Ms. Grelish's father, it was necessary to re-register the Applicant's name with the Domestic Workers' Registry and submit a new Application for Foreign Live-In Caregiver to HRDC. When Mr. Grelish received a new confirmation letter from HRDC, the Applicant immediately sent in her application for a new work permit with a receipt for the $150.00 fee. When she sent in her application on June 23, 2004, her permit had been expired for 71 days.

[4]                She received a letter from Citizenship and Immigration Canada ("CIC") dated July 24, 2004 that said her application for a work permit had been refused because she had not applied for restoration with the appropriate fees. CIC did not notify her during the two week period when she still could have submitted a restoration application that she could do so if she sent in the $200.00 restoration fee.

[5]                The Applicant now seeks judicial review of that decision arguing that procedural fairness dictates that the Applicant should have been provided with an opportunity to perfect her application, i.e. apply for restoration of the temporary residence status as well as applying for renewal of the work permit, thereby extending her status under the LCP.

[6]                It is undisputed that the standard of review for decisions of visa officers is reasonableness simpliciter (see Ram v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 855.

[7]                Live-in caregivers must first obtain a work visa to enter Canada and once in Canada on a work authorization, they are considered temporary residents. They can apply for permanent residence in Canada after they have worked for two years as live-in caregivers, within three years of their arrival in Canada.

[8]                A worker can extend their work permit by applying for an extension before the expiry of their term (see s. 181 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations")). If an individual has lost their status, they can apply for a restoration of status within 90 days of the expiry of their term (see s. 182 of the Regulations).

[9]                An applicant failing to obtain the extension has to return to her homeland and start the process all over again. No credit under the LCP will be given for time already spent in Canada. In addition, the time for processing in the Philippines for an application under the LCP program is about two years, thus sending a caregiver back, merely for failing to check a box and remit $200.00 is quite draconian.

[10]            This case is nearly identical with Lim v. Canada (The Minister of Citizenship and Immigration), 2005 FC 657 where I stated at paragraph 29:

Applying common sense to this process, the date of receipt of the application, i.e. May 25, 2004, should be considered the lock-in date. Clearly she did not know, (nor could she reasonably be expected to know from the Extension Booklet,) that she also had to apply for a restoration of status. The Applicant should have been advised to check Box D and to send another $200.00 all within 19 days (the time remaining in the 90 day grace period). This was all that was required. Instead, CIC mechanically applied section 12 of the Regulations, ruling the application out of time. In my view, this is neither consistent with common sense, nor with Choi, supra.

[11]            Coincidentally, in this case the application was also received on the 71^st day of the 90-day grace period set out in s. 182 of the Regulations. Therefore, applying the reasoning of Lim, supra to this cases mutatis mutandis, June 23, 2004 should be considered the lock-in date. The Applicant did not know, (nor could she reasonably be expected to know from the Extension Booklet), that she also had to apply for a restoration of status. The Applicant should have been advised to check Box D and to send another $200.00, all within 19 days (the time remaining in the 90-day grace period). Common sense and consistency with Choi, supra dictates proceeding in such a way.

[12]            Accordingly, this application will be allowed.

                                               ORDER

THIS COURT ORDERS that the decision dated July 27, 2004, of the Vegreville Centre of CIC, is set aside. The matter is returned to the Vegreville Centre of CIC to be dealt with in accordance with the terms of paragraph 11 of the Reasons for Order above.

            "Konrad von Finckenstein"       

Judge                            

FEDERAL COURT

Names of Counsel and Solicitors of Record

DOCKET:                                          IMM-7009-04

STYLE OF CAUSE:                                      ZENAIDA FORTIN CASTRO

Applicant

and

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

DATE OF HEARING:                      APRIL 28, 2005

PLACE OF HEARING:                    VANCOUVER , B.C.

REASONS FOR ORDER

AND ORDER BY:                                         von FINCKENSTEIN, J.

DATED:                                                          MAY 10, 2005

APPEARANCES BY:

Ms. Deanna Okun-Nachoff                                           FOR THE APPLICANT

Ms. Helen Park                                                             FOR THE RESPONDENT

SOLICITORS OF RECORD:   

Deanna Okun-Nachoff

Barrister and Solicitor

Vancouver, B.C.                                                          FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada                             FOR THE RESPONDENT