Date: 20110525
Docket: IMM-6156-10
Citation: 2011 FC 608
Ottawa, Ontario, May 25, 2011
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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DELILAH ABALOS
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Applicant
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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]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision of a
Citizenship and Immigration Canada [CIC] immigration officer, dated August 24,
2010, whereby the officer refused the applicant’s application for permanent
residence as a member of the live-in caregiver class.
I. BACKGROUND
[2]
Ms. Delilah
Abalos (the applicant) is a citizen of the Philippines. She came to
Canada on November
9, 2006 to work as a live-in caregiver. In March of 2009, having completed
twenty-four months of work, the applicant applied for permanent residence in
the live-in caregiver class.
[3]
On
August 26, 2009, CIC contacted the applicant to inform her that she had been
approved-in-principle. They indicated that the applicant had met the
eligibility requirements to apply for permanent resident status as a member of
the live-in caregiver class, but that a final decision would not be made until
all remaining requirements were met.
[4]
On
October 14, 2009, the applicant informed CIC that there had been a change in
her marital status. She indicated that on June 6, 2009, she had married a Mr.
Danilo Bautista who she described as being, “currently in Canada as a refugee
claimant.”
[5]
Mr.
Bautista’s refugee claim was rejected on December 10, 2009.
[6]
On
January 12, 2010, CIC contacted the applicant by letter and informed her that
her new spouse would need to be added as a family member to her application and
that he would also have to complete a separate application form. CIC further
requested that the applicant provide additional submissions demonstrating the
genuineness of her marriage to Mr. Bautista. The applicant provided the
requested documentation by mail on February 9, 2010.
[7]
On
July 22, 2010, the immigration officer whose decision is now under review sent
the applicant a “fairness letter” informing her that the requirements set out
in the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations]
for permanent residence as a member of the live-in caregiver class were no
longer satisfied. Specifically, the officer indicated that paragraph 113(1)(e)
of the Regulations was not met because the applicant’s husband was the
subject of an enforceable removal order. The officer provided the applicant
with thirty days to submit a response.
[8]
The
applicant responded by letter dated August 12, 2010. She submitted, first, that
her husband was not under an “enforceable removal order”, because he had not
been called for removal and had not been given the opportunity to apply for a
pre-removal risk assessment. Were the officer to find otherwise, the applicant
submitted that hers was an exceptional case that warranted the exercise of the
officer’s discretion to nonetheless grant her application, pursuant to
subsection 25(1) of the IRPA, based on humanitarian and compassionate
considerations. The applicant further requested, in the event the officer did
not accept her submissions, that he defer his decision until her husband could
leave Canada under a departure order, thus allowing the officer to approve her
application.
II. THE DECISION UNDER
REVIEW
[9]
By
letter dated August 24, 2010, the officer refused the applicant’s application
for permanent residence. He reiterated what he had stated in the July 22, 2010
fairness letter: that the applicant no longer satisfied the requirement set out
in paragraph 113(1)(e) of the Regulations.
[10]
Although
the officer did not address the applicant’s August 12, 2010 reply submissions
in the August 24 letter, he did address them in his notes. Under the heading,
“Decision and Rationale”, the officer summarized those submissions and
proceeded to indicate as follows:
After reviewing the submissions as well
as the file I am not satisfied there are sufficient Humanitarian and
Compassionate grounds to warrant waiving the requirement of paragraph 113(1)(e)
of the IRPR.
Despite the claims of counsel the
applicant’s husband is in fact currently the subject of an enforceable removal
order. The husband’s refugee claim received a negative decision on 10Dec2009
and is presently enforceable. Applying for pre-removal risk assessment would
afford a stay of removal to the applicant’s husband however as this has not
been applied for the removal order is as stated earlier, enforceable.
Based on submissions and what is on file
I am not satisfied with the claim that the applicant simply did not know this
would cause a problem with her application as regardless of what she knew this
is still a requirement of the class that must be met.
Counsel’s request to have the decision
deferred to allow the husband to leave Canada will not be allowed as the application
is being reviewed now and the present facts of the situation are being dealt
with at the present time in order to make a decision.
III. LEGISLATIVE
BACKGROUND
[11] Section 110
of the Regulations indicates that the live-in caregiver class is a class
of foreign nationals who may become permanent residents on the basis of the
requirements set out in Division 3. Subsection 113(1), sets out the
requirements for being considered a member of the live-in caregiver class.
[12] Specifically
at issue in the current application is the requirement set out in paragraph
113(1)(e), that neither the foreign national, nor their family members,
are the “subject of an enforceable removal order”.
[13] Section 115
of the Regulations indicates, in part, that the requirements set out in
section 113 must be met at the time that the foreign national becomes a
permanent resident.
[14] Subsection
25(1) of the IRPA gives the Minister the discretion to grant a foreign
national exemption from full compliance with the requirements of the Act if the
Minister is of the opinion that such an exemption is justified by humanitarian
and compassionate [H&C] considerations relating to the foreign national.
IV. ISSUES
a) Did the
officer err in finding that the applicant had failed to meet the requirements
set out in subsection 113(1) of the Regulations?
b) Did the
officer fail to reasonably consider the humanitarian factors?
c) Did the
officer err by failing to consider the effect of the delay in processing the
applicant’s application for permanent residence?
d) Does the
officer’s interpretation and application of paragraph 113(1)(e) of the Regulations
constitute a breach of section 2(a) of the Canadian Charter of Rights
and Freedom, RCQ c C-12?
V. STANDARD OF REVIEW
[15] The officer’s
determination as to the applicant’s eligibility for permanent residence as a
member of the live-in caregiver class raises questions of mixed fact and law.
The decision as to whether an exception under subsection 25(1) of the IRPA is
warranted is discretionary in nature. The appropriate standard of review to
apply in both instances is the reasonableness standard (Aoanan v Canada (Minister of
Citizenship and Immigration), 2009 FC 734, [2009] FCJ No 1395 at para
21 [Aoanan]; Santos
v Canada (Minister of
Citizenship and Immigration), 2009 FC 360, [2009] FCJ No 470 at para 18 [Santos]). The Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 at
para 47).
VI. ANALYSIS
a) Did the
officer err in finding that the applicant had failed to meet the requirements
set out in subsection 113(1) of the Regulations?
[16] The applicant submits
that the officer erred by failing to properly adopt a flexible and constructive
approach in processing her application. She cites the decisions of this Court
in Santos, above at para 31, and Turingan v Canada (Minister of
Employment and Immigration), 72 FTR 316, [1993] FCJ No 1234 at para 8 [Turingan],
in support of the proposition that the primary purpose of the live-in caregiver
program is to facilitate the attainment of permanent resident status of foreign
domestic workers and that, therefore, it is incumbent on immigration officials to
adopt a “flexible and constructive approach” in dealing with program
participants.
[17] While I would agree that
a flexible and constructive approach is required, the applicant has not
provided any explanation as to how this approach was not adopted in her case.
She simply alleges that had a flexible and constructive approach been properly
applied, her application would not have been rejected. I am not convinced. A
flexible and constructive approach cannot be applied to justify complete
avoidance of one of the key requirements set out in subsection 113(1).
[18] By virtue of section 115
of the Regulations, when determining whether or not the criteria under
subsection 113(1) are met, the officer must consider the circumstances
prevailing at the time of the decision. As such, the requirement set out in
paragraph 113(1)(e) was not satisfied and thus the officer reasonably
concluded that the applicant was not a member of the live-in caregiver class
for the purposes of permanent residence. The current case is considerably
different from the cases pointed to by the applicant which espouse a “flexible
and constructive approach”.
[19] At issue in Turingan,
above, was whether the applicant had completed the required 24 months of live-in
caregiver work. The applicant had, due to the development of stomach pain
related to certain foods that were favoured by her employer’s family, taken to
eating dinner and sleeping at a friend’s house for a period of time. All the
while, however, she had maintained her personal belongings and phone and mail
service at her employer's address. Associate Chief Justice James Jerome
suggested that adopting a strict interpretation of the program’s 24-month
live-in requirement, in that context, would be questionable. He indicated, “The
Department's role is not to deny permanent residence status on merely technical
grounds” (Turingan, above at para 8).
[20] Contrary to applicant’s
contention, an overly-strict, merely technical, interpretation of the
requirement set out in paragraph 113(1)(e) was not applied. Regardless
of the flexibility that might have been adopted, under no interpretation would
the applicant have satisfied the requirement set out in paragraph 113(1)(e).
Her husband was subject to an enforceable removal order, rendering her in
direct non-compliance.
[21]
In Santos,
above, despite the fact that the applicant had submitted evidence showing that
her marriage had broken down a number of years prior and that she was in the
process of filing for a divorce, the immigration officer concluded that the
applicant was nonetheless ineligible for permanent residence on account of her
husband’s inadmissibility. The immigration officer had rejected the applicant’s
evidence regarding her marital breakdown as being contradictory to prior
evidence. Justice Michael Kelen found that, pursuant to the flexible and
constructive approach, the officer should have given the applicant an
opportunity to explain the perceived contradiction.
[22] Unlike the situation in Santos, the current case is not a case where the officer took an overly
critical view of the applicant’s evidence. Instead, the evidence before the
officer clearly demonstrated that the applicant was married to an individual
against whom there existed an enforceable removal order. On any interpretation
of the evidence, the requirement set out in paragraph 113(1)(e) was not
satisfied.
[23] Ultimately, the
officer’s conclusion that the applicant no longer satisfied the requirement set
out in paragraph 113(1)(e) was not only reasonable, but it was correct.
b) Did the
officer fail to reasonably consider the humanitarian factors?
[24] The applicant submits
that the officer erred by not properly considering a number of relevant
humanitarian and compassionate factors when deciding whether or not to grant
her request for an exemption from the requirement set out in paragraph 113(1)(e).
[25] First, she argues that
the officer was not cognizant of the fact that at the time of her initial
application she had qualified as a member of the live-in caregiver class,
having completed 24 months of work as a live-in caregiver within a three-year
period.
[26] Although the timing and
extent of non-compliance may have been relevant considerations for the purposes
of the officer’s H&C analysis, it is clear that both aspects were
considered. The officer was clearly cognizant of the fact that the applicant
had previously satisfied paragraph 113(1)(e) as he indicated in both his
refusal letter and his notes that the applicant “no longer” satisfied that
provision. It is also clear from the officer’s notes that he was focused solely
on whether or not to waive “the requirement of paragraph 113(1)(e) of
the [Regulations]”, thus recognizing that none of the other requirements
in subsection 113(1), such as the work requirement, needed to be waived. To the
extent that the applicant’s prior compliance with paragraph 113(1)(e) -
and broader compliance with subsection 113(1) - was relevant to the officer’s
H&C analysis, I am satisfied that it was considered.
[27] Second, the applicant
argues that the officer did not explicitly acknowledge and consider the fact
that she had complied with requests for additional documentation by submitting
a document package on February 9, 2010.
[28] The documents submitted
on February 9, 2010 went primarily to the bona fide of the applicant’s
marriage to her husband. Given that the officer in his final decision did not
ultimately question the bona fide of the applicant’s marriage, I see no
reason why he should have been required to engage with these documents or the
fact that they had been submitted. If the applicant is suggesting that she
should have received positive consideration merely by virtue of having supplied
the additional documents requested by CIC, I would disagree. Aside from the
continued processing of her application, no such positive consideration was
required.
[29] Finally, the applicant
submits that the officer failed to recognize a number of factors that, I agree,
go directly to the question of whether or not an exemption should have been
granted pursuant to subsection 25(1) of the IRPA. Specifically, the
applicant indicated that the officer failed to consider:
a) that she had become well
established in Canada: having developed
friendships and close family relationships here, and having become involved
with her church community and with volunteering;
b) that she had always
supported herself without relying on social assistance;
c) that she would have
difficulty finding employment if she were to return to the Philippines; and
d) that her current
employer, whose wife suffers from Alzheimer’s disease, depends on her.
[30] The problem for the
applicant, however, is that she did not bring any of these factors to the
officer’s attention.
[31] When making a request
pursuant to subsection 25(1) of the IRPA, the applicant has the burden
of demonstrating that relief is warranted. The applicant must show that a
failure to grant the requested exemption will result in unusual and undeserved
or disproportionate hardship (Aoanan, above at para 35; Owusu v Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, [2004] FCJ No 158 at para 8).
[32] While the applicant
raises a number of relevant factors now, on judicial review, these factors were
not raised before the officer. In requesting consideration under subsection
25(1) of the IRPA, the applicant made no mention of, and provided
virtually no evidence related to, the points she now raises on judicial review:
her new friends in Canada, her newly developed family ties in Canada, her
involvement at church and with volunteering, her economic self sufficiency, the
lack of work in the Philippines, and the nature and extent of her employer’s
reliance on her services. Had she raised these factors for the officer to
consider, I would agree that his failure to address them would be problematic.
However, since she did not raise them, the officer cannot be faulted in this
regard.
[33] Instead, what the
applicant did raise for the officer’s consideration was that: a) refusing
the application would have a serious impact on her and her husband as they had
both been in Canada for a number of years, b) she had sacrificed “so many”
years of her life under the live-in caregiver program, c) she was unaware that
her marriage would impact her opportunity to remain in Canada, and d) the
immigration legislation never contemplated a situation such as hers.
[34] These points do not go
very far towards demonstrating unusual and undeserved or disproportionate
hardship. No evidence of hardship, aside from the number of years that the
applicant had been in Canada working as a live-in
caregiver, was provided as support. As such, it cannot be said that the
officer, in concluding that the applicant had not demonstrated that there
existed “sufficient Humanitarian and Compassionate grounds to warrant waiving
the requirement of paragraph 113(1)(e)”, came to an unreasonable determination.
c) Did the
officer err by failing to consider the effect of the delay in processing the
applicant’s application for permanent residence?
[35] The applicant submits
that the officer erred by failing to consider the effect that the delay in
processing her application had on her ability to satisfy the requirements set
out in the Regulations. In particular, she argues that if the officer
had rendered his decision at some point prior to December 10, 2009 –
the date of the enforceable removal order against her husband – she would have
complied with the requirement set out in paragraph 113(1)(e) and would
have been entitled to membership in the live-in caregiver class.
[36] The
applicant likened her situation to the situation addressed by my colleague
Justice Sean Harrington in Singh v Canada
(Minister of Citizenship and Immigration), 2005 FC 544, [2005]
FCJ No 669 [Singh]. The applicants in Singh had sought an order
in the nature of mandamus to compel the Minister of Citizenship and
Immigration to make a decision on their application for permanent residence.
Justice Harrington recognized that “the Minister had a duty to act with
reasonable diligence” and granted the application.
[37] Unlike
in the current case, however, the applicants in Singh had applied for a mandamus
order. Also unlike in the current case, the applicants in Singh had
waited over 12 years for their application for permanent residence to be
decided. There is nothing to suggest that the Minister, in the current case,
failed to act with reasonable diligence. The applicant first applied for
permanent residence in March of 2009. She informed the CIC that there had been
a change in her marital status in October 2009, and processing was completed by
the summer of 2010.
[38] To quote Justice
Harrington, “Queues are a fact of life” (Singh, above at para 16). The
processing time in the current case was not unreasonable. Section 115
of the Regulations is clear that the requirements set out in sections
112 to 114.1, which includes the requirement outlined in paragraph 113(1)(e),
must be satisfied, “when the foreign national becomes a permanent resident”. As
such, it cannot be said that the officer acted unreasonably by conducting his
assessment according to the facts prevailing at the time of his decision, as
opposed to the facts as they were at the time of the application.
d) Does the
officer’s interpretation and application of paragraph 113(1)(e)
constitute a breach of section 2(a) of the Charter?
[39] The applicant argues
that applying paragraph 113(1)(e) so that it denies permanent residence
to a foreign national on the basis of their spouse’s status amounts to a
violation of section 2(a) of the Charter, because such an
application has the indirect effect of restricting the foreign national’s
fundamental religious freedom to marry whomever they choose.
[40]
Section
57 of the Federal Courts Act, RSC 1985, c F-7 [FCA] requires that
if the “constitutional validity, applicability or operability” of a regulation
made pursuant to an Act of Parliament is in question, the regulation shall not
be judged to be invalid, inapplicable or inoperable unless notice has been
served on the Attorney General of Canada and the attorney general of each
province. No notice has been served in this case. While it is true that the
Federal Court of Appeal in Canada (Minister of Canadian Heritage) v Mikisew
Cree First Nation, 2004 FCA 66, [2004] FCJ No 277 at paras 75-78 [Mikisew],
instructed that notice of a constitutional question under section 57 of the
FCA is not required in every case where a constitutional issue is raised.
[41]
There
is no need for such a notice where the judicial remedy is something other than
a judgment that a statute or regulation is invalid, inapplicable or inoperable
on constitutional grounds. For instance, if the argument is not that the
legislation is unconstitutional, but instead that the decision of the board or
tribunal is unconstitutional and not authorized by the legislation, then no
notice is required under section 57.
[42]
The
officer in the current case, however, was not exercising any discretion. He
concluded that the applicant was not a member of the live-in caregiver class by
direct application of the criterion set out in paragraph 113(1)(e). As
such, I understand that the true focus of the applicant’s argument is not based
on the “decision” made by the officer, but instead it is paragraph 113(1)(e)
itself.
[43] Thus, if it is the case,
it was incumbent on the applicant to serve on the Attorney General of Canada
and the attorney general of each province a notice of constitutional question
pursuant to section 57 of the FCA. Her failure in this regard is fatal
since notice is a sine qua non condition for entertaining this type of a
constitutional argument (Barlagne v Canada (Minister of Citizenship and
Immigration), 2010 FC 547, [2010] FCJ No 651 at para 61; Bekker v Canada, 2004 FCA 186, [2004]
FCJ No 819 at para 9).
[44] In any event, if it is
the decision itself that is under attack, I note that no Charter
violation argument was raised before the officer and no evidence was presented
to him to suggest that the applicant sincerely believes in a version of
Christianity that makes marriage mandatory and that paragraph 113(1)(e) was
precluded from marrying in accordance to her religious beliefs. Paragraph 113(1)(e)
provides a neutral rule that applies regardless the religious beliefs of an
applicant or his family members.
[45] Unfortunately, the
applicant has not shown that the officer’s decision is unreasonable. The
decision falls as a whole within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law. Thus, the application for
judicial review is dismissed.
[46] This is not the “end of
the road” for the applicant. Her situation can better be resolved through the
H&C application already submitted on September 24, 2010, and hopefully for
her to be decided in the near future.
JUDGMENT
THIS COURT ADJUGDES
that
the application for judicial review be dismissed
“Danièle
Tremblay-Lamer”
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