Romero v. Canada (Citizenship and Immigration), 2012 FC 265

Date: 20120227

 Docket: IMM-4224-11

Citation: 2012 FC 265

Ottawa, Ontario, February 27, 2012

PRESENT:     The Honourable Mr. Justice Russell

 

 

BETWEEN:

	VANESSA ARANGO ROMERO
		Applicant
	and
	THE MINISTER OF CITIZENSHIP AND IMMIGRATION
		Respondent

 

           REASONS FOR JUDGMENT AND JUDGMENT

 

INTRODUCTION

[1]               This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC­ 2001, c. 27 (Act) for judicial review of the decision of a visa officer (Officer) at the Canadian Embassy in Bogota, Colombia, dated 25 May 2011 (Decision) in which the Officer refused the Applicant’s application for a work permit.

BACKGROUND

[2]               The Applicant is a 23-year-old citizen of Colombia.

[3]               In 2001, the Applicant left Colombia for the United States of America (USA), where she lived until April 2009. While she was in the USA, she requested asylum against Colombia, but her request was denied. She came to Canada on 9 April 2009 and claimed refugee status. The Applicant also applied for permanent residence on Humanitarian and Compassionate grounds in May 2009; the ultimate disposition of that application is unclear on the record. The Applicant’s claim for protection was denied in October 2009 and her Pre-Removal Risk Assessment (PRRA) was later refused. On 14 April 2010 the Applicant voluntarily executed a removal order which was in place against her and returned to Colombia.

[4]               On 5 May 2011, the Applicant applied for a work permit under the Live-in Caregiver Program (LCP), which would allow her to work with l’Arche London, an ecumenical, religious care home (Work Permit Application). Although a Labour Market Opinion (LMO) is required for applications under the LCP, the Applicant did not submit one with her Work Permit Application.

[5]               The Officer considered the Work Permit Application on 25 May 2011. According to his affidavit, he considered the Applicant’s Work Permit Application under subsection 205(d) of the Immigration and Refugee Protection Regulations SOR/2002-227 (Regulations) because she had not submitted an LMO. The Officer refused the Work Permit Application and notified the Applicant of the Decision by letter dated 25 May 2011.

DECISION UNDER REVIEW

[6]               The Decision in this case consists of the letter sent to the Applicant on 25 May 2011 (Refusal Letter) and the Global Case Management System notes (GCMS Notes) on the file.

[7]               In the Refusal Letter, the Officer wrote that he was not satisfied that the Applicant met the requirements of the Act and Regulations, so he refused her Work Permit Application. On the second page of the Refusal Letter, the Officer checked boxes next to the following statements:

·        You have not satisfied me that you would leave Canada by the end of the period authorized for your stay. In reaching this decision, I considered several factors, including:

                                                               i.      your history of having contravened the conditions of admission on a previous stay in Canada;

                                                             ii.      your travel history;

                                                            iii.      limited employment prospects in your country of residence;

                                                           iv.      your current employment situation;

                                                                   v.your personal assets and financial status.

[8]               In the GCMS Notes, the Officer recorded that the Applicant had claimed asylum in the USA and refugee status in Canada and had been refused on both occasions. He was not satisfied that she was a genuine worker and found that her immigration record showed that she wanted to remain in Canada permanently. Based on these findings, the Officer refused the Applicant’s application for a work permit.

ISSUES

[9]               The Applicant raises the following issues in this application:

a.                   Whether the Officer’s reasons are adequate;

b.                  Whether the Decision was reasonable.

 

STANDARD OF REVIEW

[10]           The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.

[11]           In Choi v Canada (Minister of Citizenship and Immigration) 2008 FC 577, Justice Michael Kelen held at paragraph 12 that the standard of review with respect to an officer’s decision to grant a work permit is reasonableness. Justice John O’Keefe made a similar finding in Singh v Canada (Minister of Citizenship and Immigration) 2010 FC 1306 at paragraph 35. The standard of review on the second issue is reasonableness (see also Song v Canada (Minister of Citizenship and Immigration) 2009 FC 349 at paragraph 17).

[12]           Recently, in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) 2011 SCC 62, the Supreme Court of Canada held at paragraph 14 that the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” The first issue in this case must therefore be analysed along with the reasonableness of the Decision as a whole.

[13]           When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59.  Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

STATUTORY PROVISIONS

[14]           The following provision of the Act is applicable in this proceeding:

 

[15]           The following provisions of the Regulations are also applicable in this proceeding:

 

ARGUMENTS

The Applicant

            The Officer’s Reasons Are Inadequate

 

[16]           The Officer refused the Applicant’s application because he found she had previously breached the conditions of her admission to Canada. The Applicant says that the Decision does not contain any details about what she did to breach the conditions of her admission and that it is not clear what the Officer based this conclusion on. She notes that she voluntarily executed the removal order which was in place against her.

            The Decision Was Unreasonable

[17]           The Applicant argues that the Officer found she was not a genuine worker without any evidence for this finding. She relies on Bondoc v Canada (Minister of Citizenship and Immigration) 2008 FC 842 for the proposition that visa officers do not have to be satisfied that applicants under the LCP have only a temporary purpose in coming to Canada. With respect to LCP applicants, officers may be satisfied that applicants will not remain in Canada if their permanent residence application under the LCP is rejected. The Applicant says that she meets all the requirements of the LCP set out in section 112 of the Regulations so Bondoc applies in her case.  

[18]           The Applicant also says that the Officer’s finding that she would remain in Canada illegally was speculative and unreasonable. The Officer concluded that she would remain in Canada illegally because she had limited employment prospects in Colombia, she was unemployed, and because she had limited assets. These factors show that she has a desire to work in Canada, but do not show that she would remain in Canada illegally.

The Respondent

[19]           The Respondent says that Kaur v Canada (Minister of Employment and Immigration), [1995] FCJ No 756 establishes that visa applicants must provide all documents to support their applications. The Applicant’s argument is based on an assertion that she meets the requirements for admission under the Live-in Caregiver class which are set out is section 112 of the Regulations. However, she does not meet these requirements. To be a member of the Live-in Caregiver class, an applicant must show that she has a job offer which has been approved by HRSDC and must submit an LMO from HRSDC. There is no evidence in this case that the Applicant submitted an LMO. This means that she did not satisfy the requirements of the LCP and could not have been granted a work permit as a member of the Live-in Caregiver class.

[20]           Because the Applicant could not and did not apply under the LCP, Bondoc, above, is distinguishable. That case is applicable only to applications under the LCP, so the Applicant was subject to the ordinary analysis under paragraph 200(1)(b). The Officer was right to determine if the Applicant was likely to leave on the expiration of her work permit. He made a reasonable finding on this question when he refused the Applicant’s Work Permit Application.

ANALYSIS

[21]           The record appears to show that the Applicant was not considered under the Live-in Caregiver class, pursuant to section 110 of the Regulations because she did not provide an LMO from HRSDC. Hence, her application was considered under subsection 205(d) of the Regulations, as relating to charitable or religious work, which did not require that she submit an LMO.

[22]           It seems to me that, because she did not provide an LMO, the Officer was correct to conclude that the Applicant could not qualify under the Live-in Caregiver class. The Officer makes this clear in the reasons, where he says “wishes to go to Canada as Group Home Worker for L’Arche, exempt from an LMO (C50).” The Applicant has questioned this aspect of the Decision and argued at the oral hearing of this matter that the LMO requirement was not authorized by the Act or the Regulations so that the Respondent’s policy to require an LMO is inconsistent with the Act and the Regulations. However, paragraph 203(1)(b) of the Regulations clearly establishes that it is:

 

[23]           The Applicant says that the Live-in Caregiver class was an exception to the LMO requirement and, notwithstanding subsection 203(1) of the Regulations, the policy changed the exemption. In my view, however, the need for an LMO is clearly stipulated in subsection 203(1)(b). The Applicant had access to the current requirements when she compiled and submitted her application, and the need for an LMO was clearly stated there. Consequently, I cannot say that the failure to consider her as a Live-in Caregiver gives rise to any reviewable error.

[24]           Under paragraph 200(1)(b) of the Regulations, the Applicant had to establish that she would leave Canada by the end of the period authorized for her stay under Division 2 of Part 9.

[25]           The Officer was not satisfied that she was a genuine worker and that she would leave Canada at the end of the authorized period because “Her past immigration record shows clear interest to remain in Canada permanently.”

[26]           However, when considered as a religious or charitable worker under section 205 of the Regulations, I agree with the Applicant that the Officer committed a reviewable error. In deciding that she would not likely leave Canada at the end of her authorized stay, the Officer considered a number of factors:

a.                   The Applicant’s “history of having contravened the conditions of admission on a previous stay in Canada”;

b.                  The Applicant’s “travel history”;

c.                   The Applicant’s “limited employment prospects” in Colombia;

d.                  The Applicant’s current “employment situation”;

e.                   The Applicant’s “personal assets and financial status.”

 

[27]           The Respondent concedes that the Applicant has never contravened the conditions of admission on a previous stay in Canada and that the Officer made a mistake.

[28]           The issue for me, then, is whether this mistake is material and renders the Decision unreasonable. In my view, this mistake is highly material because the Applicant’s past conduct with regard to complying with past conditions says a great deal about whether she will comply with future conditions. In this case, the Applicant left Canada voluntarily when the time came for her to do so. She may wish to come to Canada on a permanent basis but she has demonstrated that this does not mean she will do anything illegal to achieve this end. Had the Officer not made this significant mistake his final conclusion might well have been different. Hence, I think the Decision has to be returned for reconsideration on this basis. See Li v Canada (Minister of Citizenship and Immigration) 2008 FC 1284 at paragraph 30, Sakibayeva v Canada (Minister of Citizenship and Immigration) 2007 FC 1045 at paragraph 14, and Hara v Canada (Minister of Citizenship and Immigration) 2009 FC 263 at paragraph 53.

JUDGMENT

 

THIS COURT’S JUDGMENT is that

 

1.                  The application is allowed. The Decision is quashed and the matter is returned for reconsideration by a different officer.

2.                  There is no question for certification.

 

 

“James Russell”

 

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-4224-11

 

STYLE OF CAUSE:                          VANESSA ARANGO ROMERO

                                           

                                                                                                                                    Applicant               

                                                            -   and   -

 

                                                            MINISTER OF CITIZENSHIP AND IMMIGRATION

                  

                                                                                                                        Respondent

                                                                                                                                                                                                                                                                                                                                                                                                                

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      January 16, 2012

                                                           

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          HON. MR. JUSTICE RUSSELL

 

DATED:                                             February 27, 2012

 

 

APPEARANCES:   

 

Terry S. Guerriero                                                                                            APPLICANT

                                                                                               

Bernard Assan                                                                                                  RESPONDENT

                            

                                                                                                                                                                                                                                                                                                                                                                                                                                                                       SOLICITORS OF RECORD:    

 

Terry S. Guerriero                                                                                            APPLICANT

Barrister & Solicitor

London, Ontario

                                                                                         

Myles J. Kirvan                                                                                                RESPONDENT

Deputy Attorney General of Canada