Date: 20100705
Docket: IMM-5212-09
Citation: 2010 FC 726
Ottawa, Ontario, July 5,
2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
ALTHEA RAMOS DE LUNA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Ms.
Althea Ramos De Luna, the Applicant, applied for a visa to come to Canada as a live-in
care worker. A Visa Officer at the Canadian Embassy in Manila, Philippines, refused her
application because she did not meet the requirements of the Live-in Care
Worker program. She applies to this Court for Judicial Review pursuant to
section 18.1 of the Federal Courts Act, (R.S.C., 1985, c. F-7).
[2]
For
reasons that follow, I am denying this judicial review.
BACKGROUND
[3]
The Applicant secured an offer of employment in Canada to be a live-in caregiver. Canada recognizes a shortage of such
workers and has created the Live-in Caregiver Program to find qualified people
who may wish to work as caregivers for Canadians. Those chosen in the program
have an opportunity to apply to become permanent residents here. However, they
must demonstrate a command of English or French sufficient to perform their
work and they must have a demonstrated ability to work as caregivers for
children and the elderly in unsupervised settings.
[4]
Ms. Ramos de Luna applied to the program from
the Philippines. She worked
previously as a social welfare officer for six years in the Philippines where she says she used English
regularly. She pursued training at Fil-Can Training School for six months in 2007/2008 geared towards live-in
care. She also spent a month and a half studying at Nursing Resource Centre
Inc. The Applicant contends these experiences demonstrate her proficiency in
English and have equipped her with the necessary knowledge and skills to be a
live-in caregiver in Canada.
[5]
Visa officers review applications under this
program. Where an officer is not satisfied the applicant’s language skills are
sufficient, the officer is expected to interview the applicant in an effort to
ascertain their language skills. This expectation is contained in the
guidelines in OP 14 Processing Applications for the Live-in Caregiver Program
and it is expressed this way:
“If an officer
has a reason to doubt the applicant’s language ability, then the officer should
interview the applicant.
The officer
should carefully document how language ability was assessed in refusal cases”.
Further, it reads:
“Live-in
caregivers must have a level of fluency in English or French that enables them
to communicate effectively and independently in an unsupervised setting. For
example, they should be able to:
·
Respond to emergency situations by contacting a
doctor, ambulance, police or fire department;
·
Read the labels of medications;
·
Answer the telephone and the door; and
·
Communicate with others outside the home, such
as schools, stores or other institutions.”
[6]
In this case, the Visa Officer was not satisfied
with the Applicant’s ability in English and instead of interviewing her, relied
on a service provider that conducts a Spoken Proficiency in English Assessment
and Knowledge or S.P.E.A.K. test.
[7]
The S.P.E.A.K. test is conducted by asking the
applicant a series of five questions. The first is meant to put an applicant at
ease, the rest are specific questions related in some way to the provision of
care. The service provider offers a rating of the applicant’s skill, but also a
transcript of the answers and a DVD with a recording of the applicant’s
answers.
[8]
In the Applicant’s case, she was asked:
“What will you
do in case a fire breaks out in your client’s house?”
“How do you make
or change the sheets while your bedridden client is lying on the bed?”
The test
includes a written section with multiple choice questions, including:
“Which statement
is NOT TRUE about Tuberculosis? Give the letter of your answer and read its
corresponding statement. Then give at least 2 signs and symptoms of
Tuberculosis.
A.
Tuberculosis is a disease caused by bacteria.
B.
Tuberculosis is seen only in poor people.
C.
Coughing into a tissue decreases the spread of
the disease.
D.
Tuberculosis is spread by people.
[9]
The Applicant gave non-responsive answers to the
long questions and erroneous selections on the multiple choice questions. The Officer
rejected Ms. Ramos de Luna’s application for a visa.
RELEVANT LEGISLATION
Immigration and Refugee
Protection Regulations, (SOR/2002-227)
|
112.
A work permit shall not be issued to a foreign national who seeks to enter Canada as a live-in caregiver
unless they
(a)
applied for a work permit as a live-in caregiver before entering Canada;
(b)
have successfully completed a course of study that is equivalent to the
successful completion of secondary school in Canada;
(c)
have the following training or experience, in a field or occupation related
to the employment for which the work permit is sought, namely,
(i)
successful completion of six months of full-time training in a classroom
setting, or
(ii)
completion of one year of full-time paid employment, including at least six months
of continuous employment with one employer, in such a field or occupation
within the three years immediately before the day on which they submit an
application for a work permit;
(d)
have the ability to speak, read and listen to English or French at a level
sufficient to communicate effectively in an unsupervised setting; and
(e)
have an employment contract with their future employer.
…
200
(3) An officer shall not issue a work permit to a foreign national if
(a)
there are reasonable grounds to believe that the foreign national is unable
to perform the work sought;
|
112.
Le permis de travail ne peut être délivré à l’étranger qui cherche à entrer
au Canada au titre de la catégorie
des aides familiaux que si l’étranger se conforme aux exigences suivantes :
a)
il a fait une demande de permis de travail à titre d’aide familial avant
d’entrer au Canada;
b)
il a terminé avec succès des études d’un niveau équivalent à des études
secondaires terminées avec succès au Canada;
c)
il a la formation ou l’expérience ci-après dans un domaine ou une catégorie
d’emploi lié au travail pour lequel le permis de travail est demandé :
(i)
une formation à temps plein de six mois en salle de classe, terminée avec
succès,
(ii)
une année d’emploi rémunéré à temps plein — dont au moins six mois d’emploi
continu auprès d’un même employeur — dans ce domaine ou cette catégorie
d’emploi au cours des trois années précédant la date de présentation de la
demande de permis de travail;
d)
il peut parler, lire et écouter l’anglais ou le français suffisamment pour
communiquer de façon efficace dans une situation non supervisée;
e)
il a conclu un contrat d’emploi avec son futur employeur.
…
200
(3) Le permis de travail ne peut être délivré à l’étranger dans les cas
suivants :
a)
l’agent a des motifs raisonnables de croire que l’étranger est incapable
d’exercer l’emploi pour lequel le permis de travail est demandé;
|
Federal Courts Act,
|
18.1(3)
On an application for judicial review, the Federal Court may
(a)
order a federal board, commission or other tribunal to do any act or thing it
has unlawfully failed or refused to do or has unreasonably delayed in doing;
or
(b)
declare invalid or unlawful, or quash, set aside or set aside and refer back
for determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal.
(4)
The Federal Court may grant relief under subsection (3) if it is satisfied
that the federal board, commission or other tribunal
(a)
acted without jurisdiction, acted beyond its jurisdiction or refused to
exercise its jurisdiction;
(b)
failed to observe a principle of natural justice, procedural fairness or
other procedure that it was required by law to observe;
(c)
erred in law in making a decision or an order, whether or not the error
appears on the face of the record;
(d)
based its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it;
(e)
acted, or failed to act, by reason of fraud or perjured evidence; or
(f)
acted in any other way that was contrary to law.
|
18.1
(3) Sur présentation d’une demande de contrôle judiciaire, la Cour fédérale
peut :
a)
ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a
illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de
manière déraisonnable;
b)
déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement
conformément aux instructions qu’elle estime appropriées, ou prohiber ou
encore restreindre toute décision, ordonnance, procédure ou tout autre acte
de l’office fédéral.
(4)
Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est
convaincue que l’office fédéral, selon le cas :
a)
a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer;
b)
n’a pas observé un principe de justice naturelle ou d’équité procédurale ou
toute autre procédure qu’il était légalement tenu de respecter;
c)
a rendu une décision ou une ordonnance entachée d’une erreur de droit, que
celle-ci soit manifeste ou non au vu du dossier;
d)
a rendu une décision ou une ordonnance fondée sur une conclusion de fait
erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des
éléments dont il dispose;
e)
a agi ou omis d’agir en raison d’une fraude ou de faux témoignages;
f)
a agi de toute autre façon contraire à la loi.
|
ISSUES
[10]
The
Applicant raises the following issues:
a. Did the Visa Officer
err in law in the exercise of his or her duties by ignoring evidence and
misconstruing evidence?
b. Was the
Applicant denied fundamental and natural justice and treated unfairly by the
conduct of the visa officer in this case?
c. Did the Visa
Officer fetter his or her discretion by refusing to take into account relevant
circumstances?
d. Did the Visa
officer err in law in making his or her decision in that he or she misapplied
the requirements and criteria set out in the Immigration and Refugee
Protection Regulations pertaining to a live-in caregiver?
STANDARD OF REVIEW
[11]
The
Applicant is most concerned with the Visa Officer’s findings with respect to
the S.P.E.A.K. test and his refusal to recognize the Applicant’s educational
experience. These are findings of fact and mixed findings of fact and law. The
Applicant also submits the Visa Officer’s decision was deficient with respect
to his duty of procedural fairness. Reviewing whether the duty of procedural
fairness was observed is a question of law.
[12]
The
appropriate standard of review for findings of fact and law by a visa officer
is reasonableness. This Court has found Malik v. Minister of Citizenship and
Immigration, 2009 FC 1283:
“The decisions of visa officers relating
to determinations of eligibility for permanent residence under the federal
skilled worker class are normally reviewed on a standard of reasonableness: Hua
v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1647, [2004] F.C.J. No. 2106 (QL) at para. 28; Kniazeva
v. Canada (Minister of Citizenship and
Immigration), 2006 FC 268, [2006] F.C.J. No. 336 (QL) at para. 15; Tiwana v. Canada (Minister of Citizenship and
Immigration), 2008 FC 100, [2008] F.C.J. No.118 at para.15; Hameed v. Canada (Minister of Citizenship and
Immigration), 2008 FC 271, [2008] F.C.J. No. 341 at para. 22.”
[13]
Issues
of natural justice and procedural fairness are reviewed on the basis of the
standard of correctness: Canada (Citizenship and
Immigration) v. Khosa, [2009] 1 S.C.R. 339 at para. 43. As noted by
the Federal Court of Appeal in Skechley v. Canada (Attorney General),
2005 FCA 404, [2005] F.C.J. No.2056 (QL) at para. 53:
CUPE [Canadian Union of Public Employees
v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29] directs a
court, when reviewing a decision challenged on the grounds of procedural
fairness, to isolate any act or omission relevant to procedural fairness (at
para. 100). This procedural fairness element is reviewed as a question of law.
No deference is due. The decision-maker has either complied with the content of
the duty of fairness appropriate for the particular circumstances, or has
breached this duty.
ANALYSIS
[14]
The
Applicant contends the Visa Officer did not follow Operational Procedures set
out by the Minister with respect to assessing documents, knowledge and language
skills. The same grounds are relied on for the contention the officer also
fettered his discretion. The Applicant adds the decision provide insufficient
reasons. And, finally, the Applicant argues she was deprived of an opportunity
to address her poor performance in the S.P.E.A.K.
[15]
I
consider the issues concerning documents, knowledge and language skills as
questions of fact and the issues related to the lack of an opportunity to
address her poor result in the S.P.E.A.K. test as a question of a duty of
procedural fairness.
[16]
The
Applicant contends the Visa Officer overlooked or did not properly consider the
credentials she obtained in the Philippines. These include a six
month course at the Fil-Can Training School in 2007, one and a half
months at the Nursing Resource Centre Inc., English courses at Sacred Heart
College between 1994
and 1998. In addition to these educational achievements, the Applicant was a social
worker for six years in the Philippines and used English in
this role.
[17]
The
Applicant argues the Visa Officer would have arrived at a different conclusion
with respect to her language and knowledge had he considered her credentials
and experience. The Visa Officer did consider her credentials since he refers
to these in his CAIPS notes.
[18]
The S.P.E.A.K. results speak for themselves.
The Applicant’s answers to the long questions were
general, her sentences incomplete and they belied her misunderstanding of the
language. For example, when asked about a fire, she said she would bring her
client to the hospital. When asked about changing sheets for a bedridden client
she explained the process of using a bedpan. She answered: “Turn the patient
into the other side…place the bedpan over the patient…this is the time to
remove the clothing…gain access on the patient…use a disposable wipes
clothing…to clean…get the dress…to change my patient…clean soap and water to
clean…my patient…” In the multiple choice section, the
Applicant gave A as her answer, (the only statement that is not true is B) and
her examples of signs and symptoms were general to many diseases; she didn’t
provide examples more specific to tuberculosis.
[19]
The
S.P.E.A.K. test represents a standardized test designed to assess the knowledge
and language skills required by the Live-In Caregiver program. The Officer was
provided with the test performance in the form of a DVD and a written
transcript of the question and answer session. He indicates that he reviewed
this information in coming to his own decision concerning the Applicant’s
skills. A video recording and transcript of a standard test which engaged the
Applicant in English on the very skills and knowledge she was required to
demonstrate is a graphic and reliable indicator of her abilities. It was
reasonable for the Officer to rely on the direct output from the S.P.E.A.K test
(The DVD and transcript) to make his assessment.
[20]
Given
the material before him, which I am satisfied he considered, I find the Visa
Officer’s conclusions about the Applicant’s language skills and knowledge about
caregiving were reasonable.
[21]
The
Applicant argues the Visa Officer breached his duty of procedural fairness by
not providing her with an opportunity to dispute the outcome of the test. She
provides a series of cases arguing adverse evidence should be brought to the
attention of an applicant so that he or she may have the opportunity to explain
or rebut it. I agree that in many cases applicants should benefit from an
opportunity to correct, explain or rebut evidence that might undermine their
application. However, this is not one of those cases.
[22]
In
Muliadi v. Canada (Minister of Employment & Immigration), [1986] 2
F.C. 205 (C.A.) the visa officer considered a negative assessment by a
provincial organization of a man’s business proposal which formed part of his
application for permanent residence in Canada as an
entrepreneur. The Court of Appeal found for the applicant because he was never
given a fair opportunity to reply to this assessment.
In the case before me the assessment is quite different. Ms. Ramos de Luna
participated in the S.P.E.A.K. test and the assessment of her skills was based
purely on her contemporaneous ability to demonstrate them by answering
questions in English on topics she has presumably studied. This is quite
different from the situation in Muliadi where provincial business
experts assessed the prospects of an applicant’s business plan without the
applicant’s involvement.
[23]
The other cases cited by the Applicant are
concerned with an obligation on visa officers to indicate to applicants when
there is insufficient proof to establish claims in their applications. These
cases are also quite different from the one before me.
[24]
Given the Applicant’s participation in the
S.P.E.A.K. test, no breach of procedural fairness arises on the Visa Officer’s
evaluation of the test in reliance on the materials produced. The Applicant has
not made out a case for a breach of procedural fairness.
CONCLUSION
[25]
The application for judicial review is
dismissed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application is dismissed.
2.
I
make no order as to costs.
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