Date: 20081117
Docket: IMM-5342-07
Citation: 2008 FC 1283
Ottawa, Ontario, November 17, 2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
NARCISA ANCHETA SIMAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of immigration officer Thierry A. N’kombe (the officer), dated December
8, 2007, in which the officer refused the Applicant’s request for an exemption
from the permanent resident visa on humanitarian and compassionate
(H&C) grounds and an application for a temporary resident permit (TRP).
I. Issues
[2]
The
Applicant raises the following issues in this application:
a. Did the
immigration officer err in ignoring evidence?
b. Did the
immigration officer err in finding that the Applicant’s application was one of
convenience rather than hardship when refusing the Applicant’s H&C and TRP
applications?
c. Did the
immigration officer fail to provide adequate reasons?
II. Factual
Background
[3]
Ms.
Narcisa Ancheta Siman is a citizen of the Philippines who came to Canada on March 23,
2004, under the Live-in Caregiver Program (LCP). The LCP is a prescribed class
where participants in the program must complete two years of full-time
employment to qualify for permanent residence. However, the total duration of
all work permits (added together) should not exceed three years. The three-year
period gives the participants in the program flexibility to compensate for
periods of unemployment, illness, vacation or maternity leave. There is also a
bridge extension that is an interim work permit given to those who are between
jobs and have not yet found a new employer.
[4]
The
Applicant’s first employer was Melodie Stania. Due to her employer’s marital
problems, the Applicant was laid off in December 2004. Since Ms. Stania
provided the Applicant with advance notice of her impending termination, the
Applicant was able to secure new employment through an employment agency with
an alternative employer, Denise Schaffer, a laser plastic surgeon. It appears
that there were no gaps in her employment.
[5]
Due
to a miscommunication regarding whether the employment agency or Ms. Schaffer
was responsible for filing the Applicant’s further application for a Labour
Market Opinion with Human Resources Canada (LMO), the Applicant’s work permit
was not renewed prior to its expiration. This came to the attention of the
Applicant in March 2005. Her application was sent in April 2005. At that time,
the Applicant’s work permit had already expired. The Applicant was therefore
not able to maintain her compliance with the LCP.
[6]
Around
May 2005, the Applicant filed an application to restore her work permit and
advised Citizenship and Immigration Canada (CIC) that her LMO was to follow
shortly. She received her LMO from Service Canada three days after
sending her application for the restoration of her work permit.
[7]
On
July 15, 2005, the Applicant’s application for restoration of her work permit
was refused because it was not supported by a LMO. Due to this refusal, the
Applicant’s employment was terminated by Schaffer due to her lack of status.
[8]
The
Applicant has been living in Canada without status since July 2005 and has
been working without authorization. According to the Applicant’s affidavit, she
has been working for the family of Judy and Paul Magrath since September 2005, but
they are hesitant to confirm the Applicant’s employment with them because of
her lack of status in Canada.
[9]
The
Applicant retained an immigration consultant, Alfonso Bontoc, to assist her in
securing a work permit but the consultant did not submit anything. This came to
her attention about eight months later.
[10]
On
February 28, 2007, she made an application for permanent residence in Canada based on H&C
grounds. She also requested, in the alternative, the issuance of a TRP. This request
was made due to her potential inadmissibility to Canada because she
is working without a valid authorization.
III. Decision
Under Review
[11]
On
December 8, 2007, the officer decided that an exemption would not be granted
and the application for permanent residence from within Canada on H&C
grounds was rejected.
[12]
The
officer relied on three bases in refusing the Applicant’s H&C and TRP
applications: the possible hardship in applying overseas for the LCP program; her
degree of establishment in Canada and the economic situation in the Philippines.
[13]
The
officer recognized that the Applicant is not a burden to society. She belongs
to a congregation and several letters of support from friends were provided,
but her degree of establishment is nothing beyond the normal establishment that
one would expect the Applicant to have accomplished in the circumstances, since
she has been in Canada since 2004.
[14]
The
Applicant did not demonstrate that severing her community and employment ties to
Canada would have a
significant negative impact that justifies an exemption under H&C
considerations.
[15]
As
well, the officer recognized that social and economic conditions in the Philippines may not be
favourable, but they are a common factor that affects the general population as
a whole. The officer finally noted that this application is one of convenience
rather than hardship.
[16]
As
for the request for a TRP, the Applicant has no ties to Canada; her parents
and seven brothers and sisters do not reside here. The Applicant was
refused an employment authorization on July 15, 2005 and she made a conscious
decision to remain in Canada and engage in employment without
authorization. The Applicant is a qualified Live-in Caregiver who is eligible
to apply again and return to Canada in the normal manner. The officer did not
find any compelling reasons to issue a TRP.
IV. Analysis
A. Standard of Review
[17]
The
Applicant submits that the appropriate standard of review applicable to
judicial reviews of H&C decisions is reasonableness simpliciter (Ojinma
v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 922, 116 A.C.W.S. (3d) 571).
[18]
The
Respondent adds that the single reasonableness standard elaborated by the
Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, does not entail a more intrusive review by the courts.
Where the question is one of fact, discretion or policy, deference will usually
apply automatically. The appropriate standard of review in the case at bar is
the newly articulated standard of reasonableness.
1. Did the
immigration officer err in ignoring evidence, thus rendering an unreasonable
decision?
[19]
The
Applicant alleges that the hardship of having to apply for a permanent resident
visa from outside Canada would be unusual, undeserved or disproportionate due
to her degree of establishment in Canada, the economic situation in the
Philippines and the loss of income she would incur during the application
process. The Applicant states that it will be extremely difficult for her to
start the LCP program again, as wait times in Manila currently
exceed two years.
[20]
The
Respondent notes that sections 6.5 and 6.6 of the Operational Manual IP-5
(IP-5) explain the exceptional nature of the H&C considerations, which are
limited to cases where an Applicant would face an unusual and undeserved or
disproportionate hardship not anticipated by the legislation if they were
required to apply for a permanent resident visa from outside of Canada. Section
6.7 specifies that the unusual and undeserved hardship must be the result of
circumstances beyond the person’s control, whereas section 6.8 explains that
the hardship must have a disproportionate impact on the Applicant due to their
personal circumstances.
[21]
The
Applicant submits that the officer erred by ignoring certain elements of evidence
pertinent in the case at bar. The Applicant states that it is an error in law
for the officer to make a decision without having regard to the totality of the
evidence before it (Owusu-Ansah v. Canada (Minister of Employment and
Immigration), 98 N.R. 312, 15 A.C.W.S. (3d) 344 (F.C.A.); Carlos Enrique
Sangueneti Toro v. Minister of Employment and Immigration, [1981] 1 F.C.
652, [1980] F.C.J. No. 192 (C.A.) (QL); Ana Vilma Irarrazabal-Olmedo v.
Minister of Employment and Immigration, [1982] 1 F.C. 125 (C.A.).
[22]
In
Jamrich v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 804, 124 A.C.W.S. (3d) 773 at
paragraph 22, the Court reproduced the indicia set out by IP-5 to determine the
degree to which an Applicant is established in Canada. The
Applicant believes that, in reference to these indicia of establishment and
considering the fact that she arrived here approximately four years ago, she is
very well established.
[23]
The
officer failed to consider the personal circumstances of the Applicant regarding
the economic hardship she would experience if she were required to return to
the Philippines and re-apply
for the LCP. The officer misconstrued the evidence when he found that the
social and economic conditions in the Philippines are not favourable, but
they are a common factor that affects the general population as a whole.
[24]
The
Applicant also contends that the officer failed to consider the totality of the
evidence when he ignored the financial support that the Applicant provides to
her family in her country. It is not merely a situation of economic hardship
but rather an issue that affected her ability to support her parents in the Philippines.
[25]
Finally,
the Applicant argues that the officer failed to consider the evidence before him
when he simply stated that the Applicant had failed to maintain compliance with
the LCP program. The officer did not consider the mitigating circumstances which
explain that the Applicant’s work permit applications were not filed in time
because there was miscommunication between the agency and her employer concerning
who had carriage of her LMO application. The Applicant had paid an immigration
consultant to file her work permit but the consultant did nothing. This
evidence was ignored by the immigration officer.
[26]
The
Respondent notes that the officer considered the grounds basing the Applicant’s
request, such as her degree of establishment in Canada and the economic
hardship of having to apply for a visa from outside Canada and found that they
do not amount to unusual and undeserved or disproportionate hardship to the
Applicant. The officer did not ignore any evidence in rendering his decision. According
to the Respondent, the Applicant’s arguments constitute an attempt to have the
Court substitute the officer’s assessment for an alternative assessment of the
evidence which is favourable to the Applicant, which is not a ground for
judicial review.
[27]
The
Respondent cites Owusu v. Canada (Minister of Citizenship and Immigration),
2004 FCA 38, [2004] 2 F.C.R. 635 at paragraph 12, and argues that it is not the
function of the Court in judicial review proceedings to substitute its view of
the merits of an H&C application for that of the statutory decision-maker,
even though, on the record, the in-country claim to be granted permanent
resident status on H&C grounds might have merit. According to the Respondent,
the Court's intervention is not warranted.
[28]
There
is a presumption that the officer has considered all the evidence before him.
While the officer is not obliged to recite every evidentiary fact before him in
his decision, it is expected that the significant facts will be described and
that there will be some discussion and consideration of these facts. A “blanket
statement” to the effect that the officer has considered all the evidence is
insufficient (Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 (F.C.T.D.); Bains v. Canada (Minister of
Employment and Immigration), 63 F.T.R. 312, 40 A.C.W.S. (3d) 657) (F.C.T.D.).
[29]
The
Court is of the opinion that the officer considered and addressed the evidence
before him and based his decision on the Applicant’s possible hardship in
applying overseas for the LCP program, her degree of establishment in Canada and the
general economic situation in the Philippines. The officer also analysed
the grounds forwarded by the Applicant and did not make a sweeping statement
which disregarded or misconstrued certain elements of evidence as alleged.
2.
Did the immigration officer err in law in finding that the Applicant’s
application was one of convenience rather than hardship when refusing the
Applicant’s H&C and TRP applications?
[30]
The
Applicant argues that the LCP must be administered openly but the officer
applied the Operational Manuals in a rigid and inflexible manner (Karim v.
Canada (Minister of Employment and Immigration), 21 F.T.R. 237, 11 A.C.W.S.
(3d) 271 (F.C.T.D.); Bernardez v. Canada (Minister of
Citizenship and Immigration), 49 A.C.W.S. (3d) 369, 27 Imm. L.R. (2d)
149 (F.C.T.D.); Lim v. Canada (Minister of
Citizenship and Immigration), 2005 FC 657, 272 F.T.R. 293. In addition,
in Lim, above, the Court recognized that re-applying for the LCP
constitutes a form of hardship, given the backlog in the Philippines at the time.
[31]
The
Applicant specifies that the IP-5 should not be applied in a rigid and
inflexible manner in the context of an H&C application for permanent
residency (Yhap v. Canada (Minister of Employment and Immigration),
[1990] 1 F.C. 722, (T.D.); Vidal v. Canada (Minister of Employment and
Immigration), 41 F.T.R. 118, 25 A.C.W.S. (3d) 709 (F.C.T.D.)). The
Applicant explains that she worked as a Live-in Caregiver for Canadian families
for over 24 months in the three years immediately following her arrival to Canada. If her application
for a work permit and restoration of her temporary resident status had not been
refused in July 2005, the Applicant would now have been eligible for permanent
residence as a member of the Live-in Caregiver Class. In refusing the
application, the officer fettered his discretion.
[32]
Moreover,
according to the Applicant, the officer erred in law by failing to
consider the potential inadmissibility the Applicant could face if she were to
apply overseas for the LCP because of her non-compliance with the Act since she
is presently in Canada without status. Accordingly, her applications
for H&C considerations and a TRP are not merely a matter of convenience as
found by the immigration officer but rather one of disproportionate harm and/or
undue hardship.
[33]
Likewise,
the officer erred in refusing the Applicant’s TRP based on the finding that she
made a conscious decision to remain in Canada and engage
in employment without employment authorization. From a plain reading of section
24 of the Act, it is clear that the issuance of TRPs is intended for
Applicants who may be inadmissible to Canada.
[34]
The
Respondent states that the case at bar is not an application for leave and for
judicial review of the Respondent’s July 2005 refusal to issue the Applicant a
work permit and restore her temporary resident status. Therefore, the case law
the Applicant refers to relating to the LCP is not applicable to this H&C
decision.
[35]
The
Respondent also notes that the officer considered the Applicant’s circumstances
and found insufficient reasons to justify granting the Applicant’s request for
a TRP. In particular, the officer considered that the Applicant has no family
ties to Canada as her parents and seven brothers and sisters do not live here,
that she made a conscious choice to remain in Canada and work here without
legalizing her status in 2005 and that she is a qualified Live-in Caregiver who
is eligible to re-apply in the normal manner.
[36]
Contrary
to the Applicant’s assertions, the Respondent submits that the officer clearly
did not refuse the Applicant’s request for a TRP merely because she may be
determined to be inadmissible. The Respondent notes that the Operational Manual
IP-1 states that TRPs should not be used to restore the temporary resident
status of a visitor, student or worker when their status has expired.
[37]
Unfortunately,
the miscommunication between the employment agency and the Applicant’s employer
in 2005 regarding who was responsible for the renewal of her work permit cannot
be used to justify the Applicant’s current H&C or TRP requests. As noted by
the officer, the Applicant chose to remain in Canada and to engage
in employment without authorization. The Applicant has not satisfied the
officer or this Court that there would be undue hardship if she returned to the
Philippines and
re-applied for the LCP in the normal manner.
[38]
Furthermore,
the fact that the Applicant has some degree of establishment in Canada is not
sufficient to justify her H&C request (Ruiz v. Canada (Minister of
Citizenship and Immigration), 2006 FC 465, 147 A.C.W.S. (3d) 1050; Lee
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 413, 138 A.C.W.S. (3d) 350).
3. Did the
immigration officer fail to provide adequate reasons?
[39]
The
Applicant alleges that the immigration officer failed to explain why submitting
a new LCP application in light of her potential inadmissibility in the Philippines would not
constitute undue hardship, which is the appropriate test for an H&C
application.
[40]
The
Applicant argues that the officer’s reasons are inadequate because he
did not explain why the Applicant would not suffer hardship in light of her
establishment in Canada, nor did he consider the explanations she provided regarding
her failure to file an application for a work permit extension in the
prescribed time. The officer also failed to consider the stream of financial
support that the Applicant provides to her parents in the Philippines.
[41]
The
Applicant quotes Future Inns Canada Inc. v. Nova Scotia (Labour Relations
Board), 160 N.S.R. (2d) 241, 69 A.C.W.S. (3d) 1073, where the Nova Scotia
Court of Appeal stated, at paragraph 52, that “courts can and should require
written reasons from a Tribunal wherever there are substantial issues to be
resolved.” In the recent decision Canada (Minister of
Citizenship and Immigration) v. Mann, 2004 FC 1338, 258
F.T.R. 139, the Court overturned the decision of the Immigration Appeal Board
on the grounds that its reasons were inadequate. The Federal Court has also overturned
a decision on an H&C application on the basis of inadequate reasons because
the reasons offered no explanation that could be considered by the Court on
review (Adu v. Canada (Minister of Citizenship and Immigration), 2005 FC
565, 139 A.C.W.S. (3d) 164).
[42]
The
Applicant contends that the officer has made a similar error in this
case. In rendering his reasons, he has simply recited the evidence and blamed
the Applicant for having established herself while in tenuous circumstances and
not maintaining compliance with the LCP program. There is no meaningful
consideration of the mitigating circumstances in which the Applicant found herself.
[43]
The
Respondent submits that the officer’s reasons meet the test for adequacy as
they inform the Applicant of the reasons for which her application was denied
and they do not prejudice her ability to seek judicial review.
[44]
The
Respondent notes that it is well-established that reasons serve two main
purposes: letting the parties know that the issues have been considered and to
allow the parties to file an appeal or an application for judicial review (Via
Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (C.A.);
Townsend v. Canada (Minister of Citizenship and Immigration), 2003 FCT
371, 231 F.T.R. 116; Fabian v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1527, 244 F.T.R. 223). In R. v. Sheppard, 2002
SCC 26, [2002] 1 S.C.R. 869, the Supreme Court of Canada held that the
inadequacy of reasons is not a free-standing right of appeal, in that it does
not automatically constitutes a reviewable error. A party seeking to overturn a
decision on the basis of the inadequacy of reasons must show that the
deficiency in reasons has occasioned prejudice to the exercise of a legal right
to appeal (see
also R. v. Kendall, 75 O.R. (3d) 565 at paragraph 44 (Ont. C.A.).
[45]
According
to the Respondent, the officer clearly stated that the Applicant’s degree of
establishment in Canada was not beyond the norm of what would reasonably be
anticipated of an individual living in Canada for less than four years and the
normal hardship of having to sever community and employment ties to apply in
the manner contemplated by the legislation does not amount to unusual and
undeserved or disproportionate hardship. The officer also noted that the
alleged economic difficulties of having to apply for a permanent resident visa
from the Philippines do not
extend beyond the usual hardship anticipated by the legislation. The officer’s
reasons are therefore sufficient to address the Applicant’s alleged grounds of
unusual and undeserved or disproportionate hardship and to allow her to
exercise her right to file an application for leave and for judicial review.
[46]
The
Court finds that the officer has provided cogent and sufficient reasons to
justify his refusal to grant an H&C to the Applicant. She has not
demonstrated that the officer erred.
[47]
No
question for certification was proposed and none arises.
JUDGMENT
THIS COURT
ORDERS that the application be
dismissed. No question is certified.
“Michel
Beaudry”
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