Date: 20100902
Docket: IMM-6360-09
Citation: 2010 FC 872
Ottawa, Ontario, September 2, 2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
MARIA
CECILIA COLLANTES LINGAD
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Maria
Cecilia Collantes Lingad is a citizen of the Philippines who applied for a Canadian work permit
through the Live-in Caregiver Program. Her application was refused as a visa
officer was not satisfied that she had sufficient knowledge and skills to
adequately provide care without supervision.
[2]
Ms.
Lingad seeks judicial review of the visa officer’s decision, asserting that the
visa officer erred by drawing improper inferences as to whether she could
perform the work required as a live-in caregiver. Despite the capable
submissions of Ms. Lingad’s counsel, she has not persuaded me that the
officer’s decision was unreasonable. Consequently, the application will be
dismissed.
Analysis
[3]
During
her interview, the visa officer asked Ms. Lingad a series of questions as to
how she would handle a variety of situations. The answers provided by Ms.
Lingad were recorded in the officer’s Computer Assisted Immigration Processing
System (or “CAIPS”) notes.
[4]
Ms.
Lingad argues that the record of her answers contained in the CAIPS notes is
incomplete, and she has provided an affidavit detailing the more fulsome
answers that she says that she provided during her interview. The visa officer
has also provided an affidavit confirming that the answers provided by Ms.
Lingad were properly recorded in the CAIPS notes. Neither affiant was
cross-examined on their affidavit.
[5]
Both
affidavits were sworn several months after Ms. Lingad’s interview with the visa
officer. There is no suggestion in her affidavit that Ms. Lingad kept
contemporaneous notes of the answers that she provided at her interview.
Moreover, the quality of her recollection is called into question by the fact
that her affidavit makes no reference to one of the five skill-testing
questions that she was asked.
[6]
Insofar
as the reliability of the evidence contained in the visa officer’s affidavit is
concerned, the approximately five months between the interview and the swearing
of the visa officer’s affidavit, the officer undoubtedly dealt with many other
visa applications. This would inevitably have had a negative impact on
the officer’s ability to recollect the specifics of Ms. Lingad’s interview.
[7]
Because
the CAIPS notes were recorded contemporaneously with Ms. Lingad’s interview,
they are, in my view, the most reliable record of what actually transpired
during that interview.
[8]
The
onus is on applicants to demonstrate that they meet the requirements of the Immigration and Refugee Protection Regulations. The five questions
posed by the visa officer were clearly intended to assess Ms. Lingad’s ability
to safely care for the elderly individual who was to be entrusted to her care
in Canada.
[9]
The
evaluation of a candidate’s qualifications and ability to perform the work in
question is squarely within the expertise of the visa officer. While Ms. Lingad
had successfully completed a caregiver training program, the visa officer found
that the answers she provided during her interview were inadequate and incomplete.
Ms. Lingad has not persuaded me that this finding is outside the range of possible
acceptable outcomes which are defensible in light of the facts and the law: Dunsmuir at paragraph 47, and Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339 at para. 59.
[10]
Indeed, the
additional responses contained in Ms. Lingad’s affidavit simply highlight some
of the deficiencies in the answers that she provided in the course of her
interview.
[11]
The
officer also did not err in failing to consider the fact that Ms. Lingad would
be working with a housekeeper in assessing whether she had sufficient knowledge
and skill to adequately provide care, given that the definition of “live-in
caregiver” is someone who is able to provide “childcare, senior home support
care or care of the disabled without supervision …”: Immigration and Refugee Protection
Regulations, s. 2.
Conclusion
[12]
For
these reasons, the application for judicial review is dismissed.
Certification
[13]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2. No
serious question of general importance is certified.
“Anne
Mactavish”
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