Date: 20040728
Docket: IMM-7404-03
Citation: 2004 FC 1044
Toronto, Ontario, July 28th, 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
NENITA ENRIQUEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Nenita Enriquez (the "Applicant") seeks judicial review of the decision of Immigration Officer Linda Allen (the "Officer"), dated August 28, 2003. In that decision, the Officer rejected the Applicant's application for permanent residence in Canada as a member of the "live-in caregiver" class.
[2] The Applicant, a citizen of the Philippines, entered Canada in May 1999 as a visitor. She subsequently obtained a student visa from the Canadian consulate in Buffalo to follow a course of study in the "Personnel Support Program" at the Osilla Institution in Ontario. She completed that program in June 2000. The Applicant then obtained an offer of employment as a live-in caregiver and that employment offer was approved by Human Resources and Development Canada in February, 2000.
[3] The Applicant later received an employment authorization as a live-in caregiver. That employment authorization was originally issued on July 11, 2000 and was renewed both in July 2002 and 2003. The renewal issued on July 25, 2002 included the following remark:
Eligible to apply for Permanent Residence under the CCP Program after completing 24 months of fulltime employment within 3 yeas ending 10 July 2003.
[4] The Applicant applied for permanent resident status in August 2002 as a member of the live-in caregiver class. She also applied for an open employment authorization. By letter dated March 11, 2003, the Applicant was advised that she may not be eligible for permanent residence status due to failure to meet the requirements of s. 113 of the Immigration and Refugee Protection Regulations, SOR/2002-227 ("IRPA Regulations"). That provision requires that a person seeking permanent residence as a member of the live-in caregiver class must have entered Canada in that capacity, that is as a live-in caregiver.
[5] The Applicant argues that she has been treated by the Respondent as a member of the live-in caregiver class and that this treatment allows her to rely on the doctrine of reasonable expectation that she be considered eligible for permanent residence as a member of that class.
[6] On the other hand, the Respondent submits that the doctrine of legitimate expectation does not apply here because the requirement that a member of the live-in caregiver must initially apply to a visa officer outside Canada is a substantive, not a procedural, requirement which cannot be remedied by this doctrine.
[7] The record is clear that the Applicant did not apply to a visa officer for admission into Canada as a member of the live-in caregiver class. She applied only for a visa to enter Canada as a visitor, in May 1999. At that time, the Immigration Act, R.S.C. 1985, c. I-2, as amended and the Immigration Regulations, SOR/78-172 as amended, were in effect. Section 2(a)(i) of those Regulations defines "member of the live-in caregivers in Canada class":
| "member of the live-in caregivers in Canada class" means an immigrant who
(a) is in Canada as a live-in caregiver and who
(i) has submitted the immigrant's initial application for an employment authorization as a live-in caregiver to a visa office,
...
|
|
« aide familial résidant au Canada » Immigrant qui est au Canada :
a) soit à titre d'aide familial résidant et qui satisfait aux conditions suivantes :
(i) il a présenté sa première demande d'autorisation d'emploi à titre d'aide familial résidant à un bureau des visas,
...
|
This regulatory requirement parallels the language now used in section 113 of the IRPA Regulations.
[8] This definition plainly states that a person seeking entry into Canada as a member of this class must first apply to a visa office for a visa. Although the former Act does not define "visa office", the scheme of that Act and the definition of the term "immigration officer" support the view that a visa office exists outside Canada for the purpose of handling applications by persons seeking admission into Canada.
[9] The doctrine of legitimate expectation represents an aspect of procedural fairness; see Demirtas v. Canada, [1993] 1 F.C. 602 (C.A.) and in my opinion it does not apply in this case. The issue here is not one of procedural fairness but whether the Applicant complied with the statutory requirements for membership in the live-in caregivers in Canada class.
[10] The fact that the Applicant did not seek entry into Canada as a member of the live-in caregiver in Canada class cannot be remedied by subsequent errors or misunderstanding of employees of either HRDC or the Respondent in assessing the Applicant's status in Canada. She did not apply to enter Canada as a member of the "live-in caregiver in Canada class", as defined by the governing legislation when she entered Canada in 1999, that is the former Act. The history of the Applicant's receipt of an employment authorization from the Respondent in 2000 and renewals of that work authorization in 2001 and 2002 may be relevant upon an application for admission into Canada on humanitarian and compassionate grounds but such application is not the subject of this application for judicial review.
[11] The Applicant has failed to establish that the Immigration Officer committed any reviewable error in assessing and deciding her application for permanent residence as a member of the live-in caregiver in Canada class and accordingly, this application for judicial review will be dismissed. There is no question for certification arising.
ORDER
This application for leave and judicial review is dismissed. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7404-03
STYLE OF CAUSE: NENITA ENRIQUEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 26, 2004
REASONS FOR ORDER
AND ORDER: Heneghan J.
DATED: July 28, 2004
APPEARANCES:
Stephen W. Green FOR APPLICANT
A. Leena Jaakkimainen FOR RESPONDENT
SOLICITORS OF RECORD:
Stephen W. Green FOR APPLICANT
Barrister & Solicitor
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario
FEDERAL COURT
Date: 20040728
Docket: IMM-7404-03
BETWEEN:
NENITA ENRIQUEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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