Date:
20121109
Docket:
IMM-8427-11
Citation:
2012 FC 1311
Ottawa, Ontario,
November 9, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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SINA YOHANNES RUSSOM
MILEN TEWELDAI
ZOSKALES TECLEMARIAM
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicants seek judicial review of the November 16, 2011, decision of a
Citizenship and Immigration Canada (CIC) visa officer (“the Officer”), whereby
the Officer refused Ms. Russom’s application for a work permit under the
live-in caregiver category.
[1]
[2]
For
the reasons that follow, the application for judicial review is allowed.
I. Background
[3]
The
Applicants are two Canadian citizens, Ms. Milen Teweldai and her husband, Mr. Zoskales
Teclemariam, who seek to employ the other Applicant, Ms. Sina Yohannes Russom,
as a live-in caregiver for their three young children. Ms. Russom is a citizen
of Eritrea whose initial work permit application under the live-in caregiver
category was refused on February 13, 2011. The Applicants sought judicial
review of the refusal decision, and the Court entered a judgment on consent,
sending Ms. Russom’s application back for reconsideration by a different visa
officer.
[4]
On
reconsideration, Ms. Russom was convoked for an interview on November 14, 2011,
with the Officer at the Canadian Embassy in Khartoum, Sudan. At the interview,
Ms. Russom was asked to identify some common symptoms of children’s allergic
reactions to insect bites and what steps she might take if she were confronted
with such a reaction. She was further asked by the Officer to identify a
proper method for taking an infant’s temperature.
[5]
Ms.
Russom has worked in Eritrea teaching English as a Junior School Teacher for
six months, and as Kindergarten Helper (Caregiver) at a school for over one
year. She is currently a nanny for a family in Khartoum, Sudan.
II. Decision
under Review
[6]
The
Officer based his decision primarily on the answers given by Ms. Russom to the
specific questions mentioned above at the interview. In response to his first
set of questions about insect bites and allergic reactions, Ms. Russom
identified “fever and continuous crying” as indicators of an allergic reaction,
but stated that she had never encountered such an issue in her experience
caring for children. In response to the question about taking an infant’s
temperature, Ms. Russom stated that she would use a thermometer, but added
nothing about the method she might use.
[7]
The
Officer was not satisfied with any of Ms. Russom’s answers. He found that the
questions he asked with respect to insect bites, allergic reactions, and
temperature-taking constitute very basic knowledge that any live-in caregiver
in Canada charged with child care should be able to explain simply and without
difficulty. Her inability to do so to his satisfaction led the Officer to
conclude that Ms. Russom did not have the skills and knowledge to perform the
work sought. The Officer gave no explanation as to the source of the scope of
knowledge he expected Ms. Russom to possess.
[8]
While
the Officer appears to accept that Ms. Russom otherwise meets the eligibility
requirements set out in section 112 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (“the Regulations”), he relied on
section 200(3)(a) of the Regulations to refuse the work permit application.
III. Issues
[9]
The
determinative issues in this case are:
a) Whether the Officer erred by applying
paragraph 200(3)(a) of the Regulations to the live-in caregiver application;
and
b) If
not, whether the Officer’s decision was reasonable.
[10]
The
Applicants also ask for costs on a solicitor-client basis.
IV. Standard of Review
[11]
An
administrative decision-maker interpreting its own statute or statutes closely
connected to its function, and with which it has particular familiarity, is
owed significant deference (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para 54; Smith v Alliance Pipeline Ltd, 2011
SCC 7, [2011] 1 S.C.R. 160 at para 28; Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR
654 at para 30). The Officer’s interpretation of the Regulations is thus
reviewable on the standard of reasonableness.
[12]
The
Officer’s decision with respect to the application itself involves questions of
mixed fact and law and is also reviewable on the reasonableness standard.
[13]
Reasonableness
is concerned “mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir, above,
at para 47).
V. Analysis
A. Applicability
of s. 200(3)(a) of the Regulations to Live-in Caregiver Applications
[14]
The
Regulations set out the requirements that applicants must meet in order to
qualify for the live-in caregiver category:
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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.
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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.
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[15]
In
addition, the Regulations set out circumstances in which a visa officer may not
issue a work permit. Subsection 200(3) of the Regulations states, in relevant
part:
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Exceptions
(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;
[…]
(d) the foreign national
seeks to enter Canada as a live-in caregiver and the foreign national does
not meet the requirements of section 112;
[…]
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Exceptions
(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;
[…]
d) l’étranger cherche à entrer
au Canada et à faire partie de la catégorie des aides familiaux, à moins
qu’il ne se conforme à l’article 112;
[…]
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[16]
The
Applicants submit that a visa officer may only refuse a work permit to an
applicant in the live-in caregiver program on the basis of paragraph 200(3)(d)
of the Regulations, namely only when they have failed to meet the criteria laid
out in section 112. The Respondent posits that all of the grounds set out in
subsection 200(3) of the Regulations, including paragraph 200(3)(a), are
equally applicable to live-in caregiver applications. There are few cases on
this particular point, but this Court’s interpretation of subsection 200(3) is
more consistent with the Respondent’s view.
[17]
While
the Applicants rely on Vendiola v Canada (Minister of Citizenship and
Immigration), 2003 FCT 655, [2003] FCJ No 875, I prefer the approach taken
more recently by this Court in Khela v Canada (Minister of Citizenship and
Immigration), 2010 FC 134, [2010] FCJ No 161 and Bondoc v Canada
(Minister of Citizenship and Immigration), 2008 FC 842, [2008] FCJ No 1063.
In both of those cases, paragraph 200(3)(a) was held to apply to work permits
in the live-in caregiver category (see Khela, above, at paras 8, 17; Bondoc,
above, at paras 21-24). Additionally, a purposive approach to section 112 of
the Regulations leads to the same conclusion, namely that the provisions are
intended to ensure that “caregivers have the capacity to adequately perform the
tasks expected of them” (Singh v Canada (Minister of Citizenship and
Immigration), 2006 FC 684, [2006] FCJ No 859 at para 11).
[18]
Finally,
I note that this Court has found that paragraph 200(3)(e), which excludes
individuals who have engaged in unauthorized work or study in Canada from
receiving a work permit, applies to applicants in the live-in caregiver category
(see Maxim v Canada (Minister of Citizenship and Immigration), 2012 FC
1029, [2012] FCJ No 1113 at para 33). If the Applicants’ logic is adopted,
visa officers would be precluded from refusing a work permit for a would-be
live-in caregiver on the basis of previous actions in contravention of the Immigration
and Refugee Protection Act, SC 2001, c 27 and of the Regulations. This
would yield an unacceptable result.
[19]
I
find that the entirety of subsection 200(3) applies to applications in the
live-in caregiver category, and that the Officer made no error in this regard.
B. Reasonableness
of the Officer’s Decision
[20]
As
the Respondent points out, the Officer has discretion to weigh the answers
given by Ms. Russom in her interview. He does not, however, have
unlimited authority to probe the requirements of her potential employment
without an objective basis and to rely instead solely upon his own questionable
standards. While I do not view the questions put to Ms. Russom as the
Applicants do, namely as “irrelevant” considerations, the absence of objective
standards against which the Officer assessed Ms. Russom’s capacity to perform
the work of a caregiver led the Officer to an unreasonable conclusion (see Randhawa
v Canada (Minister of Citizenship and Immigration), 2006 FC 1294, [2006]
FCJ No 1614).
[21]
Given
that the Officer appears to have accepted that the requirements for a live-in
caregiver work permit under section 112 of the Regulations were met, his
unreasonable conclusion under paragraph 200(3)(a) of the Regulations is
sufficient to allow the application for judicial review.
C. Costs
[22]
Rule
22 of the Federal Courts Immigration and Refugee Protection Rules,
SOR/93-22 mandates that no costs shall be awarded in proceedings such as these
unless the Court finds there are special reasons to order them. Indeed, costs
are not ordinarily awarded in immigration proceedings in this Court, and the
threshold for establishing the existence of “special reasons” is high (see
Stephenson v Canada (Minister of Citizenship and Immigration), 2011 FC
932, [2011] FCJ No 1156 at para 74; Dhaliwal v Canada (Minister of
Citizenship and Immigration), 2011 FC 201, [2011] FCJ No 250 at paras 29-30).
I do not find that there are special reasons to justify an order of costs in
this case.
VI. Conclusion
[23]
The
application shall be sent back for re-determination by another officer, who
will take these reasons into account.
JUDGMENT
THIS
COURT’S JUDGMENT is that application for judicial review is
allowed and the matter is sent back for re-determination by another officer.
“ D. G. Near ”
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