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Federal Court
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Cour fédérale
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Date: 20090611
Docket: IMM-5197-08
Citation: 2009 FC 615
Ottawa, Ontario, June 11, 2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
CHERYL-ANN ARLETTE LYNCH
a/k/a ARLETTE LYNCH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Immigration Officer considered the Applicant’s allegation that the refusal of
her work permit application was unfair in that she was misled by the fact that
the Quebec authorities had
different criteria than those set out in s. 112 of the Immigration and
Refugee Protection Regulations, SOR/2002/227 (Regulations) with respect to
live-in caregivers.
[2]
The
Immigration Officer noted that it is clearly stated on the “certificate
d’acceptation du Québec à titre de travailleur temporaire” (CAQ) that “Le
présent certificat n’est pas un document d’admission et ne saurait en aucun cas
dispenser son titulaire des autorisations requises par le Gouvernement du
Canada”.
II. Judicial Procedure
[3]
This
is an application for judicial review of a decision of an Immigration Officer,
dated November 4, 2008, denying the Applicant’s application to file an
Application for Permanent Residence from within Canada on
humanitarian and compassionate grounds.
III. Facts
[4]
The
Applicant, Ms. Cheryl-Ann Arlette Lynch (a.k.a. Arlette Lynch), is a citizen of
St-Vincent and the Grenadines. She came to Canada, as a
visitor, on April 15, 2003. She was entitled to stay in Canada until
October 14, 2003.
[5]
Ms.
Lynch was allowed to extend her visitor status a few times, up until December
31, 2006. Every time her visitor status was extended, Ms. Lynch was reminded
that she was prohibited from engaging in employment in Canada.
[6]
Ms.
Lynch was issued a CAQ, in April 2004, March 2005 and February 2006. The letter
sent to Ms. Lynch along with the certificates stated: “Nous vous signalons que
notre Certificat d’acception du Québec (CAQ) ne vous autorise pas à travailler
tant que vous n’aurez pas obtenu un permis de travail de Citoyenneté et Immigration
Canada”.
[7]
On
July 9, 2004, Ms. Lynch’s application for a work permit filed from within Canada was refused in
Vegreville because she was ineligible.
[8]
On
June 5, 2006, Ms. Lynch’s application for a work permit as a live-in-caregiver
was refused at the visa office of Port of Spain in Trinidad and Tobago as she did not meet the
requirements of section 112 of the Regulations. More specifically, the
designated immigration officer concluded that Ms. Lynch had not successfully
completed a course of study equivalent to secondary schooling in Canada and
that she did not have one year of full-time work experience within the three
years prior to the day she submitted her application for a work permit.
[9]
Ms.
Lynch did not file an Application for Leave and for Judicial Review of the
decision refusing her work permit. Instead, she continued to work illegally.
[10]
On
January 31, 2007, Ms. Lynch’s Application for an extension of her visitor
record was refused.
[11]
On
March 27, 2007, Ms. Lynch’s Application for a temporary resident permit and a
work permit was refused.
[12]
On
November 13, 2007, Ms. Lynch submitted her Application for Permanent Residence
from within Canada based on H&C
considerations.
IV. Analysis
[13]
Ms.
Lynch filed as Exhibit “B” of her affidavit “A copy of relevant portions of the
M.I.C.C. website and its Guide des procédures d’immigration regarding
the requirements of the live-in caregiver program.
[14]
These
documents should not be considered as they were not submitted to the Immigration
Officer who rendered the decision which is under review (Asafov v. Canada
(Minister of Employment and Immigration) (1994), 48 A.C.W.S. (3d) 623,
[1994] F.C.J. No. 713 (QL); Wazid v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1415, 153 A.C.W.S. (3d) 687; Sidhu
v. Canada (Minister of Citizenship and Immigration), 2008 FC 260,
324 F.T.R. 83).
[15]
While
the policies of Citizenship and Immigration Canada (CIC) can obviously be
relied upon in a judicial review of an immigration officer’s decision, the same
cannot be said with the policies and the other materials published by a
province on their website unless they have been submitted to the
decision-maker.
Standard of Review
[16]
Contrary
to what is argued by Ms. Lynch, at paragraphs 19 to 21 of her factum, the
applicable standard of review in the present case is that of reasonableness.
Indeed, Ms. Lynch’s arguments do not raise an error of law but are rather an
attempt to show that the Immigration Officer did not properly excise her
discretion under subsection 25(1) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA).
[17]
As a
result, this Court will only intervene to set aside the Immigration Officer’s
decision if it is demonstrated that it 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” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
S.C.R. 190; Doroshenko v. Canada (Minister of Citizenship and Immigration), 2008 FC 1139, [2008]
F.C.J. No. 1422 (QL)).
General Principles
[18]
It
is a fundamental principle of the IRPA that those who want to become permanent
resident of Canada must apply for permanent residence from outside Canada (IRPA at s. 11;
Regulations at s. 6; Espino v. Canada (Minister of Citizenship and
Immigration), 2007 FC 74, 308 F.T.R. 92; Singh v. Canada (Minister of
Citizenship and Immigration), 2009 FC 11, [2009] F.C.J. No. 4 (QL)).
[19]
Section
25 of the IRPA gives the Minister the power to allow individuals to file their
application for permanent residence from within Canada. This is an exceptional and discretionary
measure (Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4
F.C. 358 (C.A.) at paras. 15-16).
[20]
The
test to be applied by an immigration officer when reaching a decision under
section 25 of the IRPA is to determine whether the person who requests an
exception would suffer unusual, undeserved or disproportionate hardship if he
were to follow the normal requirements of the Act. In Irimie v. Canada (Minister of
Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 206, [2000] F.C.J.
No. 1906 (QL), it is stated:
[26] I return to my observation that the evidence suggests that the
applicants would be a welcome addition to the Canadian community. Unfortunately,
that is not the test. To make it the test is to make the H & C process an
ex post facto screening device which supplants the screening process contained
in the Immigration Act and Regulations. This would encourage gambling on
refugee claims in the belief that if someone can stay in Canada long enough to
demonstrate that they are the kind of persons Canada wants, they will be
allowed to stay. The H & C process is not designed to eliminate hardship;
it is designed to provide relief from unusual, undeserved or disproportionate
hardship. There is no doubt that the refusal of the applicants' H & C
application will cause hardship but, given the circumstances of the applicants'
presence in Canada and the state of the record,
it is not unusual, undeserved or disproportionate hardship…
[21]
The
Immigration Officer applied the right test and her assessment of the evidence
was reasonable.
The Immigration
Officer’s decision was reasonable
[22]
The
Immigration Officer’s decision was reasonable. She dealt with all the grounds
raised by Ms. Lynch in support of her H&C request. The fact that she did
not arrive at the conclusion that Ms. Lynch wanted does not mean that she did
not consider her allegations.
The “misleading”
information
[23]
The
Immigration Officer considered Ms. Lynch’s allegation that the refusal of her
work permit application was unfair in that she was misled by the fact that the Quebec authorities had
different criteria than those set out in s. 112 of the Regulations with respect
to live-in caregivers.
[24]
The
Immigration Officer noted that it is clearly stated on the CAQ that “Le
présent certificat n’est pas un document d’admission et ne saurait en aucun cas
dispenser son titulaire des autorisations requises par le Gouvernement du
Canada”.
[25]
The
Immigration Officer concluded that Ms. Lynch failed to explain why it would be
unusual, undeserved or disproportionate to file an application for permanent
residence from Outside Canada.
[26]
Ms.
Lynch shows her disagreement with the decision rendered by the Immigration
Officer. She reiterates that the information provided by the Quebec authorities
was misleading, that she and her employer reasonably followed the instructions
they received for three years, that being misinformed by a competent government
agency is an unusual and undeserved hardship when that conduct causes a person
to invest years of their life and their funds in pursuing a course of action
that is doomed to failure.
[27]
Note
of Ms. Lynch’s arguments show that the Immigration Officer committed an error
which would warrant this Court’s intervention.
[28]
Ms.
Lynch’s arguments divert the Court from the real issue that the Immigration
Officer had to look at.
[29]
The
issue was not whether being misinformed by the Quebec authorities constituted unusual and
undeserved hardship. Rather, the issue was whether the requirement to apply for
permanent residence from outside Canada would cause Ms. Lynch unusual, undeserved or
disproportionate hardship.
[30]
In
any event, assuming that Ms. Lynch and her employer were misled by the Quebec authorities, and were
not simply willfully blind, this is a matter between them and the province and
does not confer Ms. Lynch the right to have her Application for Permanent
Residence processed from within Canada.
[31]
Ms.
Lynch and her employer might possibly have legal recourses against the province
for their losses; however, the Quebec authorities warned Ms. Lynch and her employer that a work
permit had to be obtained from CIC. This should have incited them to look at
the federal requirements.
[32]
Had
Ms. Lynch and her employer been more interested in the federal requirements,
they would have easily found the requirements of s. 112 of the Regulations.
They would also have found that the operation manuals located on CIC’s website
have two chapters on live-in caregivers (Chapter OP 14 deals with the
processing of the initial application for a work permit in the live-in
caregiver category and Chapter IP 4 describes the processing of the subsequent
renewal and issuance of new work permits and the application for permanent
residence in Canada following the completion of two years of employment as a
live-in caregiver). Chapter OP 14 clearly states:
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8.6 Quebec-bound applicants
Under
the Canada-Quebec Accord, Quebec's consent is required in order to
admit live-in caregivers as
temporary workers. Therefore a Certificat d'acceptation du Québec (CAQ) is
required before issuing a
work permit. The Ministère des Relations avec les citoyens et de
l'Immigration (MRCI) issues
a CAQ only after both the employer and employee have signed the live-in
caregiver work contract.
When an applicant has obtained a CAQ but does not meet
federal requirements, the federal Regulations take precedence. These applicants should be
refused. Issuance of a CAQ under the federal Live-in Caregiver Program does not automatically
guarantee a work permit.
(Emphasis added).
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8.6 Requérants qui entendent se rendre au Québec
Aux
termes de l'Accord Canada-Québec, le Québec doit donner son
consentement en
vue de l'admission d'aides familiaux résidants en qualité de
travailleurs temporaires. Il faut donc obtenir un Certificat d'acceptation du
Québec (CAQ) avant
de délivrer un permis de travail. Le Ministère des Relations avec les citoyens
et de l'Immigration (MRCI) exige, avant de délivrer un tel certificat, que l'employeur
et l'employé signent un contrat de travail d'aide familial résidant.
Si un requérant obtient un CAQ, mais ne
satisfait pas aux exigences du gouvernement fédéral, ce sont
les dispositions réglementaires fédérales qui priment. Il faut refuser les
demandes de ces requérants. La délivrance
d'un CAQ aux termes du Programme des aides familiaux résidants du gouvernement
fédéral ne garantit pas automatiquement la délivrance d'un permis de travail.
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[33]
Ms.
Lynch was never misled by the Canadian authorities, but even if it were the
case, it would not give her the right to have her Application for Permanent
Residence processed from within Canada.
[34]
With
respect to Ms. Lynch’s allegation that she and her employer reasonably followed
the instructions they received for three years is inaccurate. Both Ms. Lynch
and her employer were informed that a work permit was required and they
disregarded this requirement.
The allegation of
domestic violence
[35]
The
Immigration Officer also considered Ms. Lynch’s allegation that she had been
abused in the past by her former boyfriend. In two paragraphs of her
submissions in support of her Application for Permanent Residence from within Canada, Ms. Lynch stated that
she had a relationship with a man who was violent. She wrote that this
relationship came to an end in 2002.
[36]
The
Immigration Officer found that Ms. Lynch did not explain how this situation
would prevent her from filing her Application for Permanent Residence from
outside Canada.
[37]
In
light of Ms. Lynch’s own admission that she had left her violent boyfriend in
2002 and in the absence of any allegation that she would still be at risk, the
Immigration Officer’s decision was reasonable.
[38]
The
same can be said with respect to Ms. Lynch’s allegations that her baby died the
day after she gave birth. Moreover, as was noted by the Immigration Officer,
Ms. Lynch did not provide any document to prove her allegations.
[39]
It
is clear from the jurisprudence that Ms. Lynch had the onus of establishing the
facts on which her request for an exemption was based (Owusu v. Canada
(Minister of Citizenship and Immigration), 2004 FCA 38, [2004] 2 F.C.R. 635
at para. 8; Williams v. Canada (Minister of Citizenship and Immigration),
2006 FC 1474, 154 A.C.W.S. (3d) 689; Doroshenko, above; Samaroo v.
Canada, 2007 FC 292, 156 A.C.W.S. (3d) 440; Li v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1292, 152 A.C.W.S. (3d) 699; Wazid,
above).
The
impact of the Applicant’s departure on her employer and her employer’s
children, the Applicant’s attachment with her relatives in Canada, the impact
of the Applicant’s departure on her family members in St-Vincent and the
Applicant’s social and economic establishment in Canada
[40]
At
paragraph 27 of her memorandum, Ms. Lynch argues that the Immigration Officer
minimized the hardships that she would encounter if she had to apply outside of
Canada.
[41]
Ms.
Lynch invites the Court to substitute its own assessment of the evidence to
that of the Immigration Officer and come to a different conclusion. That is not
the role of the Court on judicial review (Li v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1292, 152 A.C.W.S. (3d) 699 at para.
25; Choudhary v. Canada (Minister of Citizenship and Immigration), 2008 FC 412, 166 A.C.W.S.
(3d) 1124 at para. 23; Samaroo, above at para. 17; Williams,
above at para. 12).
[42]
A
reading of the Immigration Officer’s notes shows that she considered all the
grounds submitted by Ms. Lynch in support of her Application for Permanent
Residence from within Canada. She did not ignore the
impact that a departure from Canada would have on the Ms. Lynch and on other people; however,
she found that this did not constitute unusual, undeserved or disproportionate
hardship.
[43]
According
to the jurisprudence, the degree of establishment in Canada is not decisive on an
application based on H&C considerations. Similarly, the hardship inherent
in being required to leave after having spent several years in Canada is normally not
sufficient to warrant an exception. Again, s. 25 of the IRPA is intended to
provide an exceptional relief for unusual, undeserved and disproportionate
hardship (Singh, above at paras. 51-52; Wazid, above at paras.
14-16; Monteiro v. Canada (Minister of Citizenship and Immigration),
2006 FC 1322, 166 A.C.W.S. (3d) 556 at paras. 18-20; Lee v. Canada (Minister
of Citizenship and Immigration), 2008 FC 368, 167 A.C.W.S. (3d) 161 at
para. 2; Souici v. Canada (Minister of Citizenship and Immigration),
2007 FC 66, 308 F.T.R. 111 at paras. 9-10 and 36-40).
[44]
As
was stated by Justice James Russell, in Pashulya v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1275, 275 F.T.R. 143:
[43] An
applicant has a high threshold to meet when requesting an exemption from the
application of s. 11(1) of IRPA. This Court has repeatedly held that the
H & C process is designed not to eliminate the hardship inherent in being
asked to leave after one has been in place for a period of time, but to provide
relief from "unusual, undeserved and disproportionate hardship" caused
if an applicant is required to leave Canada and apply from abroad in the normal
fashion. That the Applicant must sell a house or car or leave a job or family
is not necessarily undue or disproportionate hardship; rather it is a
consequence of the risk the Applicant took by staying in Canada without landing
(Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 10
Imm. LR. (3d) 206 at paras. 12, 17, 26 (F.C.T.D.); Mayburov v. Canada (Minister of Citizenship and
Immigration) (2000), 183
F.T.R. 280 at para. 7; Lee v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 7
at para. 14).
[45]
Ms.
Lynch chose to work illegally in Canada. Accordingly, the Immigration Officer was
entitled to conclude that her employment and the attachment with her employer’s
children were not independent from her control. As was stated by Justice Marc
Nadon, in Tartchinska v. Canada (Minister of Citizenship and Immigration) (2000), 185 F.T.R. 161,
96 A.C.W.S. (3d) 112:
[21] More importantly, the Guidelines
certainly do not suggest that an applicant must pursue self-sufficiency at all
cost and without regard to the means. I therefore disagree with the
Applicants" argument that "[i]t is irrelevant whether
self-sufficiency is pursued with or without a work permit." In my opinion,
the source of one"s self-sufficiency is very relevant; otherwise, anyone
could claim an exemption on the basis of self-sufficiency even if that
self-sufficiency derived from illegal activities. I appreciate that in this
case the Applicants worked honestly, albeit illegally. Nonetheless, the
Applicants knowingly attempted to circumvent the system when they chose to
continue working without authorization. Indeed, despite being told during
their first interview that they were not authorized to work and that they should
cease, there was no indication that the Applicants had given up their
employment at the time of the second interview. Moreover, their lawyer had
cautioned them about the risks of working without a work permit as well as on
the ostensible benefit of showing self-sufficiency (regardless of its source),
and they chose to remain in Canada and work illegally.
[22] I understand that the Applicants hoped
that accumulating time in Canada despite a departure order against them might
be looked on favourably insofar as they could demonstrate that they have
adapted well to this country. In my view, however, applicants cannot and
should not be "rewarded" for accumulating time in Canada,
when in fact, they have no legal right to do so. In a similar vein,
self-sufficiency should be pursued legally, and an applicant should not be able
to invoke his or her illegal actions to subsequently claim a benefit such as a
Ministerial exemption. Finally, I take note of the obvious: the purpose of
the exemption, in this case, was to exempt the Applicants from the requirement
of applying for status from abroad, not to exempt them from other statutory
provisions such as the requirement of a valid work permit. (Emphasis added).
(Also, Rai v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1338, [2998] F.C.J. No. 1674 (QL)).
[46]
Ms.
Lynch has failed to demonstrate that the Immigration Officer ignored the
evidence or that its factual assessment was unreasonable.
V. Conclusion
[47]
For all
of the above reasons, the Application for Judicial Review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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