Date: 20100520
Docket: IMM-3977-09
Citation: 2010 FC 553
Ottawa, Ontario, May 20, 2010
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
SOBIA
NAZIR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of a visa officer’s decision, dated June 8,
2009, wherein the officer found that Sonia Nazir, the Applicant, did not meet
the requirements for a work permit as a live-in caregiver pursuant to section
112 of the Immigration and Refugee Protection Regulations, SOR/2002-227
(the “Regulations”).
I. The facts
[2]
The
Applicant is a 30-year old Pakistani citizen who applied for a work permit as a
live-in caregiver on November
3, 2008. This
employment was offered by the Applicant’s brother-in-law (her sister’s husband),
Mr. Iqbal Muhammad Naeem, and consisted in taking care of his three children
aged 9 years, 5 years and 16 months. Service Canada had previously issued a
positive Labour Market Opinion on August 15, 2008.
[3]
On April 6, 2009, the Applicant was
interviewed at the Canadian High Commission in Islamabad. During the interview, the Applicant’s
linguistic ability, educational and employment history, previous student visa
application, and family and career plans were discussed. At the conclusion of
the interview, the visa officer asked the Applicant to provide evidence of
employment of her sister and of her brother-in-law along with evidence
regarding their income. The requested documents were received on April 27,
2009.
[4]
The visa
officer refused the application on June 7, 2009 and mailed the refusal letter
to the Applicant on June
8, 2009.
II. The impugned decision
[5]
The
refusal letter simply stated that the Applicant did not meet the requirements
of the Live-in Caregiver program because the visa officer was not satisfied
that the employment offer was genuine.
[6]
The
Computer Assisted Immigration Processing System (“CAIPS”) notes are more
instructive as to the reasons behind the refusal.
[7]
The visa
officer was not satisfied that the Applicant’s intentions were bona fide
and temporary in nature, and that she was a genuine temporary worker in
Canada. While noting that there is no legislative restriction preventing
family members from offering relatives jobs as live-in caregiver, the visa officer
was not convinced that the job offer was not made primarily for the purpose of
facilitating the Applicant’s admission in Canada.
[8]
The visa
officer cast doubts on the Applicant’s career plans because of her educational
and employment background. The Applicant has completed a Bachelor of Commerce
and then a two-year textile and fashion designing program. Afterwards, the
Applicant worked as an administrative officer at Hameed Educational Complex, from
which position she resigned in 2005, apparently to further her education and
with the intention of opening her own school in Pakistan.
[9]
The
Applicant then started working as a pre-school teacher in March 2006 before
enrolling in an executive MBA program in November 2006. The visa officer
questioned that choice in light of the Applicant’s expressed intention to open
her own school. In the visa officer’s opinion, a Master degree in the field of
education or childhood development would have been a much more logical choice,
given the Applicant’s desire to open a school. Furthermore, the visa officer
had concerns about the fact that the Applicant was refused a study permit in
June 2007 which would have enabled her to enrol in a hotel and restaurant
management program. According to the visa officer, the Applicant was unable to
provide a reasonable explanation as to why she applied to such a program; in
her view, this was not consistent with her plans to work as a live-in caregiver
for her sister in Canada in order to save money and gain experience with young
children so that she could then open her own school in Pakistan.
III. The issues
[10]
This
application for judicial review raises two issues:
A) Did the
visa officer breach her duty of procedural fairness by failing to apprise the
Applicant of her concerns?
B) Did the
visa officer err by failing to properly asses the Applicant’s eligibility for
the live-in-caregiver program and to consider the Applicant’s explanations?
IV. The analysis
[11]
There is
no issue between the parties as to the appropriate standard of review. Issues
pertaining to natural justice and procedural fairness are reviewable under the
correctness standard: Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J.
No. 2056 at paras. 53-54; Canadian Union of Public Employees (C.U.P.E.) v.
Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R.
539 at para. 100. As to the eligibility of the Applicant to the live-in
caregiver class, it is a determination that requires the application of the
legal requirements to the Applicant’s particular situation. As such, it is a question
of mixed facts and law which attracts the reasonableness standard: Villagonzalo
v. Canada (Minister of Citizenship and
Immigration),
2008 FC 1127, [2008] F.C.J. No. 1398 at para. 18; Yin v. Canada (Minister of Citizenship and
Immigration),
2001 FCT 661, [2001] F.C.J. No. 985 at para. 20; Ouafae v. Canada (Minister of Citizenship and
Immigration),
2005 FC 459, [2005] F.C.J. No. 592 at para. 20.
A. Did the
Visa Officer Breach her Duty of Procedural Fairness?
[12]
Counsel
for the Applicant argued that the visa officer failed to provide her with an
opportunity to address the concerns relating to the job being offered. In her
affidavit, the Applicant explained that the sole concern expressed by the visa
officer during the interview had to do with her future employer’s financial
capability to hire her. The Applicant was required to provide further
documents in that respect and did so. The Applicant also explained that the visa
officer probed her ability to perform the job and appeared to be satisfied that
she was qualified. According to her, the visa officer never expressed any
concerns regarding the genuineness of the offer nor of the Applicant’s
intention to take up the job offered. Since she could not deal with these
concerns, it is submitted that the visa officer breached the rules of natural
justice.
[13]
The
Applicant also contended that much of the visa officer’s decision making was
based on the stereotyping of the Applicant because of her prior application for
a student permit. She argued that the visa officer drew a negative inference
from her choice not to pursue a Master’s in Education. By doing so, the visa
officer extended her own experience in Canada to that of a citizen of a very different
country without discussing the differences in the educational systems of the
two countries. This would amount to relying on extrinsic evidence that goes
beyond the experience that a visa officer is entitled to rely on.
[14]
I agree
with counsel for the Applicant that the only appropriately introduced evidence
in regard to what happened during the interview is the affidavit of the
Applicant, since there was no affidavit by the visa officer attesting to the
truth of the content of the CAIPS notes. In such cases, the jurisprudence is
clearly to the effect that CAIPS notes entered by an officer following an
interview can be part of the record but do not prove what happened during the
interview. Since the Applicant filed an affidavit upon which she was not
cross-examined explaining what happened during the interview, it is her version
that must prevail: see Chou v. Canada (Minister of Citizenship
and Immigration) (2000), 190 F.T.R. 78; aff’d 2001 FCA 299, [2001] F.C.J.
No. 1524.
[15]
A foreign
national seeking to obtain a live-in caregiver work permit must satisfy the
requirements listed in section 112 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the “Regulations”). This section reads
as follows:
|
Work
permits — requirements
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.
|
Permis
de travail : exigences
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.
|
[16]
This
program allows a person who has obtained such a work permit to stay in Canada afterward and apply for
permanent residence if he or she has worked as a live-in caregiver for a period
of at least two years within the three years immediately following their entry
(s. 113 of the Regulations). Therefore, an officer need not be
convinced that applicants will be going back to their country when their work
permits expire, as is the case for other types of work permit.
[17]
That being
said, an officer must still be convinced that the offer of employment is
genuine and that the applicant is seeking to enter Canada on a temporary basis for the purpose of
becoming a member of that class. While it may be true that the visa officer did
not raise explicitly the genuineness of the job offer or the Applicant’s real
intent in taking up that job, it cannot be contended that these issues were not
on her mind and were not raised during the interview. According to the
Applicant’s own account, she was questioned as to why she enrolled in an
executive MBA program if she wanted to open her own school. The officer was
also apparently perplexed by her application for a study permit that would have
enabled the Applicant to study hotel and restaurant management at Humber College in Toronto, Ontario. These questions were
obviously prompted by the visa officer’s queries as to the real intention of
the Applicant in coming to Canada, as these two courses of
study do not easily tie in with the Applicant’s stated purpose in applying as a
live-in caregiver. The officer could obviously have asked the question more
directly, but the she cannot be faulted for not having given the Applicant the
opportunity to address her concerns. The fact that she was asked at the
conclusion of the interview to provide additional documents regarding her
employer’s finances cannot be interpreted as evidence that this was the visa officer’s
only concern.
[18]
As for
the Applicant’s submission that the visa officer’s decision was based on a
stereotype resulting from her failed application for a student permit (submitted
in 2006 but refused in June 2007), it is quite simply without merit. I agree
with the Respondent that the visa officer did not impose a stereotype in the
manner in which she assessed this study visa. The visa officer noted the
inconsistency in the Applicant’s actions in applying for a hotel and restaurant
program in 2007 and then claiming to have an interest in opening up a school in
Pakistan. This is not a case where an
officer relies on vague generalizations not grounded in the evidence. The fact
that the Applicant had already applied to study in Canada was obviously a factor to be considered
in assessing the intentions of the Applicant, especially since her proposed
course of study had nothing to do with the Applicant’s professed interest in
child education and care-giving. But far from relying only on that factor, the
visa officer also considered the Applicant’s entire academic and work history.
This was all information provided by the Applicant herself, and the visa officer
in no way based her decision on extrinsic evidence.
B. Did the
Visa Officer Err by Failing to Properly Asses the Applicant’s Eligibility for
the Live-In-Caregiver Program and to Consider the Applicant’s Explanations?
[19]
The
Applicant submits that the visa officer failed to consider her explanation as
to why she applied to study hotel and restaurant management and why she now
wishes to work for her sister and brother in law. In the CAIPS notes, the visa
officer simply stated: “FN WAS NOT ABLE TO PROVIDE A REASONABLE EXPLANATION AS
TO WHY SHE APPLIED TO STUDY HOTEL & RESTAURANT MANAGEMENT PROGAM IN CDA
WHILE HER PLANS ARE TO WORK AS A LIVE-IN-CAREGIVER FOR HER SISTER IN CDA, SAVE
ENOUGH MONEY GAIN EXPERIENCE IN WORKING WITH HER SISTER’S YOUNG CHILDREN IN CDA
RETURN & START HER OWN SCHOOL IN PAKISTAN”.
[20]
Visa
officers assessing live-in caregiver permits have a duty to take into
consideration an applicant’s explanation and to explain why they reject such
explanations: Salman v. Canada (Minister of Citizenship and
Immigration),
2007 FC 877, [2007] F.C.J. No. 1142 at para. 13; Villagonzalo, above, at
para. 26.
[21]
According
to the uncontradicted affidavit sworn by the Applicant, she applied for a study
permit to take a hotel and restaurant management course in Toronto in 2006 because
her goal at the time was not to open a children’s facility in Pakistan but to
acquire training that would make her employable in that country. She did work
as a teacher from March 2006, but explained that she took that job to support
herself and keep busy pending the preparation for and processing of her study
permit application. She also explained that she enrolled in an MBA program in
November 2006 because she was not certain about the success of her pending
application to study in Canada and also because such a
program of study would cohere with her recent work experience as an
administrative officer in an educational complex. When her application for a
study permit was rejected in June 2007, she was left with a history of
administration at Hameed Educational Complex, some work experience in childcare
in a primary school, and a soon to be completed background in marketing and
business from Preston University in Pakistan. It is at that point in time
that she formed the intention to start a school in Pakistan, on the basis of her background
education and experience. Through speaking with her marketing professors, she
became aware that she needed to distinguish herself from the competition in
order to run a successful school. She planned to distinguish herself by
demonstrating that she has worked in a western society such as Canada and so needed to gain western
work experience. The relatively higher income from Canada as a live-in-caregiver would form the
financial foundation for her future educational endeavour in Pakistan.
[22]
This
explanation appears entirely sound and rational, yet the visa officer rejected
it and boldly asserted that the Applicant was unable to provide a reasonable
explanation for the reason she applied to study hotel and restaurant management
program in Canada. The visa officer does not
at any point explain what in her perspective would have been a reasonable
answer, nor does she explain why she found the Applicant’s answer
unreasonable. Worse still, it appears from the Applicant’s affidavit that the visa
officer asked her a number of questions not reported in the CAIPS notes that
are of questionable relevance (why her brother does not live with his parents in
Pakistan and who shares the household expenses, why the Applicant did not know
more about her sister’s job in Canada, how she could take care of her ill
father when travelling with him and why she was leaving him behind if he is
sick, etc.).
[23]
I also
find troubling the visa officer’s notes that she is not satisfied the
Applicant’s intentions are bona fide and temporary in nature, and that
she would be a genuine temporary worker in Canada. Such a statement betrays a
misunderstanding by the visa officer of the legislative scheme behind the
live-in-caregiver program and the possible dual intent applicants may have. As
I stated in Ouafae, above, at para. 32:
As for what the officer made
of the fact that the applicant’s brother was her employer, which led him to
believe she would not go back to Morocco,
that was unfounded. Not only was it pure speculation, as there was no evidence
to support such an inference, but what is more, there is nothing in the Act or Regulations
to prevent family ties between future employer and employee. Furthermore, the
caregiver program specifically provides that these individuals can apply for
permanent residence afterward. A candidate with no intention of applying for
permanent residence would be ineligible for the program (see point 5.2 of the
manual). The manual also points out that with these individuals, it is
difficult to apply the normal requirement that temporary residents will leave Canada by the end of the authorized
period (8.4 of the manual). The officer’s determination was therefore clearly
erroneous; he quite simply disregarded the type of program involved in this
case.
[24]
For all of
the foregoing reasons, I am therefore of the view that this application for
judicial review ought to be allowed. The parties have not raised any question
of general importance and none arises.
ORDER
THIS COURT ORDERS that the application for judicial
review be allowed. The matter is therefore referred to a different visa
officer for redetermination. No question is certified.
"Yves
de Montigny"
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