Date:
20090211
Docket: IMM-1647-08
Citation: 2009 FC 155
Montréal, Quebec, February 11, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
MERELLA PAULA MARTE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review pursuant to section 72 of
the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA), of an immigration officer’s decision,
dated March 13, 2008, wherein the officer found that the applicant
would not suffer “unusual or undeserved” or “disproportionate” hardship if she
applied for permanent residence from outside Canada and therefore denied her
application for permanent residence from within Canada on humanitarian and compassionate
grounds (H & C).
II. The Facts
[2]
A
citizen of Philippines, the applicant arrived in Canada on July 3, 2005, as a member of the live-in
caregiver category, under the Live-in Caregiver Program (LCP). Her one-year permit to
work in that capacity expired on July 2, 2006.
[3]
After
working for her first employer for close to eight months, the applicant allegedly
was forced to leave her employment because she had been sexually abused by her
employer against whom she filed a complaint with the Commission des normes
du travail, as well as with the Montréal Police.
[4]
Subsequently,
the applicant found another employment with the Cloutier family who hired her
in May 2006, to care for their newly born son. The applicant applied in July
2006 for a “certificat d'acceptation du Québec” (CAQ) for the approval of her
new job, which she received in December 2006.
[5]
The
applicant received a letter from Service Canada and the Ministère de l’Immigration
et des Communautés culturelles du Québec (MICCQ) dated December 16, 2006,
confirming the approval of her job offer by the MICCQ and requesting that the
applicant obtain a work permit from Canadian immigration authorities by her new
employer.
[6]
The
Cloutier family, as the new employer, then applied to renew the applicant’s
work permit and their application was denied on February 22, 2007. Between March
2007 and November 2007, the applicant made several applications for employment
authorization, all of which were refused.
[7]
The
applicant also made an application for a temporary resident permit. On June 7,
2007, the Cloutier family, as the new employer, was advised that the
application for a temporary resident permit under the LCP had been received and
would be treated taking into account the high volume of applications waiting
processing. The new employer was then informed that the processing period could
take 12 to 18 months from June 7, 2007.
[8]
In
February 2008, the applicant was informed by the Case Processing Centre in
Vergeville that her application for a temporary resident permit had been
transferred to the Canadian Immigration Centre in Montréal for processing.
[9]
On
February 12, 2008, the applicant was advised by the Case Processing Centre in
Vergeville that her application for permanent resident from within Canada on H & C grounds had been
transferred to the Canadian Immigration Centre in Vancouver for processing.
[10]
Finally,
on March 13, 2008, a negative decision was
rendered regarding the application for permanent residence on H & C grounds.
III. Issues
i. Did the immigration officer
commit a breach of procedural fairness in ignoring material facts?
ii. Did the immigration officer
render an unreasonable decision?
IV. Analysis
Standard
of Review
[11]
The
appropriate standard of review of a decision on an H & C application
is reasonableness with respect to matters of fact or mixed fact and law.
Consequently, the decision must be justifiable, transparent and intelligible
within the decision-making process (Dunsmuir v. New
Brunswick,
2008 SCC 9). It
should be vacated only if it is perverse, capricious, not based on the evidence
or based on an important mischaracterization of material facts. But, on the
other hand, a breach of procedural fairness is cause to set the resultant
decision aside, unless there is no possible way that another outcome could have
been reached.
[12]
Given
the discretionary nature of H & C decisions,
considerable deference must be accorded to such decisions. Intervention is
therefore only warranted if the decision cannot withstand a somewhat probing
examination (Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817).
Ignoring
Material Facts
[13]
The
applicant contends that the officer erred in stating that the Cloutier family
did not obtain Human Resources and Skill Development Canada’s (HRSDC) approval
when she started working for the Cloutier family.
[14]
Moreover,
she argues that the officer acted without regard for the evidence and violated
the principles of natural justice in stating the applicant never provided the
police report she had promised to file in support of her contention that she
left her first employer because of an abusive behavior situation.
HRSDC Approval
of a New Employer
[15]
The
officer stated in the decision that there was no evidence provided on file or
no record in the Foss system that the applicant had applied for HRSDC approval
of a new employer.
[16]
The
officer, however, then goes on to explain that the applicant found new
employment in May 2006 with the Cloutier family and yet did not sign for a “certificat
d’acceptation du Québec” until July 2006.
[17]
The
evidence of the certificate is not enclosed in the certified record despite
having a copy of same in the applicant’s record. The Court recognizes that it
is the applicant’s responsibility to provide all materials that pertain to their
file and that failure to do so must not be brought against the decision maker. But
still the question remains open to determine if the officer had any
indication on file that the HRSDC had given its approval although the
certificate had not been produced by the applicant.
[18]
The
officer acknowledges in the written reasons, that the applicant was accepted by
Quebec Immigration, and had the skills that may qualify her for the caregiver
program; however, in the reasons for refusing the application, the officer
notes that there is no indication in the Foss system that the applicant had
applied for HRSDC approval of a new employer when she started working for the
Cloutier family.
[19]
Citizenship
and Immigration Canada’s manual Processing Live-in Caregivers in Canada
states at paragraph 5.3 that live-in caregivers “may change employers but must
apply for a new work permit, with a validated job offer and a new employment
contract.”
[20]
The officer
notes also that in February 2007, the applicant “applied for an extension of
her employment authorization” and that “this application was refused”. The
officer considers that the applicant reapplied in March 2007, in August and
November 2007. Knowing that the applicant had requested extensions of her new
employment authorization, the officer should have been aware thereon that the
application for extension of an employment authorization implied that the applicant
had previously obtained the HRSDC approval of her new employer. Otherwise, why
apply for an extension of an employment authorization if the HRSDC approval did
not exist?
[21]
The
officer is correct in stating in the decision that there was no evidence on
first sight provided on file or no record in the Foss system that the applicant
had applied for HRSDC approval of a new employer. However, the officer had on
file sufficient information to be able to presume that the HRSDC approval of a new
employer had been obtained. Also, if the written HRSDC approval was still
required, it would have been fair and easy then for the officer to request the
applicant to produce the authorization instead of stating in the reasons that
there was “no evidence provided on file” or “no record in the Foss system that [the
applicant had] applied for HRDC approval of a new employer”.
[22]
We
now know that the applicant’s new employer, the Cloutier family,
received from Service Canada (formerly HRSDC) a letter dated December 16, 2006,
wherein they noted that MICCQ and Service Canada had confirmed the applicant’s
employment offer from them.
The Police Report
[23]
The
officer notes in the reasons for the H & C refusal that
the applicant stated having “left her first employer because of an abusive
behaviour situation and that she had reported the situation to the police. She
stated that a police report would follow. She has not provided the police
report in the three months since the application was received”.
[24]
This
quote from the reasons for the decision is inexact since the applicant
transmitted the promised police report to the Canadian Immigration Centre in Vancouver on February
27, 2008, and further the respondent admitted that this document was available
and part of the record when the impugned decision was rendered.
[25]
The
officer clearly never took this report into account although it did corroborate
the applicant’s allegations of sexual harassment by her former employer and her
needs to change jobs and why she was subsequently unable to fulfill the
original conditions of the live-in caregiver class.
Living Arrangements
[26]
The
officer notes in the decision that the applicant was not living with the
Cloutier family but with her aunt and cousin.
[27]
The regulations
clearly indicate that a live-in caregiver is “a person who resides in and provides
child care, senior home support care or care of the disabled without
supervision in the private household in Canada where the person being cared for resides.” (Immigration
and Refugee Protection Regulations, S.O.R./2002-227), r. 2).
[28]
Temporary
workers in Quebec, as is the case of the applicant in this file, must renew
their authorizations to work and reside in Quebec if they wish to extend or renew their
contract and/or if they have a new employer.
[29]
Recognizing
that the Citizenship and Immigration Canada’s manual defines a live-in
caregiver as a person who resides in and provides care in a private household
in Canada in which the person resides, and that the applicant was allegedly
abused by her former employer, the Court finds that the officer did not
properly exercise his discretion when he considered the applicant’s request
made under H & C grounds, and that he had to determine if the
applicant complied with the terms and conditions of her original admissibility
to Canada.
[30]
The
Court finds it more than natural that a young woman would seek to live with
family members after having suffered a traumatic experience such as the one
alleged. It was therefore inappropriate for the officer to fault the applicant
for seeking a safe environment where she could lay her head at night. The Court
does however recognize the statutory requirement to live with the employer and
note that the applicant has not well explained the necessity for her to
continue living with her aunt once hired by the Cloutier family.
Flexibility
Required for Caregivers
[31]
“The
purpose of the Live-in-caregiver Program […] is to facilitate the attainment of
permanent resident status for foreign domestic workers and therefore, it is
incumbent on the Immigration Department to adopt a flexible and constructive
approach in its dealings with the Program’s participants. Failure to do so
undermines the purpose of the Program” (Peje v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 274 (T.D.) (QL), at
para. 6); Turingan v. Canada (Minister of Employment
and Immigration) (1993), 72 F.T.R. 316 (T.D.)).
[32]
The
officer here erred in fact in stating that the applicant did not obtain HRSDC approval.
True the applicant did not produce in evidence the approval certificate, but
the officer knew and even noted that the applicant had applied for an extension of her new employment
authorization. The officer should have taken notice or presumed then that the
applicant had in fact obtained the necessary approval for her new
employment since one cannot apply for an extension of an authorization that
does not exists. Having knowledge of such presumed approval, the officer could
have requested from the applicant to produce the certificate she had received
instead of simply stating that there was “no record in the Foss system that she
applied for HRDC approval of a new employer”. No certificate in record maybe,
but the evidence adduced permitted the officer to presume that the HRSDC had
given its approval.
[33]
In
addition, the officer failed to consider the police report produced as promised
and requested. Had the officer examined the police report in record and seen
that it corroborated the applicant’s allegations, he might have concluded
differently, considering the flexibility required from an officer when dealing
with requests of abused caregivers. Who knows also if the officer would not
have concluded differently with regard to the applicant’s living arrangements
as a caregiver?
[34]
It
is important to note that the officer never dismissed the probative value of
the presumed HRSDC
approval of a new employer that lied behind the applicant’s request for
an extension
of her new employment authorization. He never dismissed also the probative
value of the police report produced in evidence. On the contrary, the officer
compounded the error by insisting on the applicant’s failure to provide the
police report and to produce the certificate of the HRSDC approval of her new
employer.
[35]
The
applicant and her new employer, the Cloutier family, have shown great respect
towards the law. The said family also showed compassion in assisting the
applicant through these procedures and were present in Court when the present
recourse was heard. They have tried unsuccessfully to obtain an extension of the
applicant’s employment authorization already obtained, and yet were unable to
get the necessary permits. Finally, the applicant filed an application for
permanent residence from within Canada on H & C grounds for which she
was entitled to obtain at the very least a fair hearing.
V. Conclusion
[36]
The
Court recognizes that it must exercise great deference with regard to
decision of this nature. But seeing the nature of the compounded factual errors made by
the officer to conclude as he did, the Court does not see how an ordinary
person such as the applicant could reasonably conclude that she obtained a fair
hearing. Furthermore, considering the discretionary nature of H & C decisions, the Court is unable to
conclude that without these errors there is no possible way that another
outcome could not have been reached.
[37]
As
the above conclusions are sufficient to warrant the intervention of the Court,
it will not be necessary to consider the other argument made by the applicant
with respect to the child’s best interests.
[38]
The
impugned decision is found for these reasons unreasonable with the consequence
that the application will be allowed. The Court agrees with the parties that this affair
raises no serious question of general importance to
certify.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application is allowed, the decision dated March 13, 2008, is set aside,
and the matter is referred to a different immigration officer for reconsideration.
“Maurice E. Lagacé”
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