Date: 20080521
Docket: IMM-3841-07
Citation: 2008 FC 627
Ottawa, Ontario, May 21, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
SONIA
ROSARIO ARTICA VILA
Applicant
and
THE
MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA or the Act) for judicial
review of a decision of a visa officer (the officer) at the Canadian Embassy in
Lima, Peru dated April 21, 2007, wherein the officer found that Sonia Rosario
Artica Vila (the applicant) did not meet the requirements for a work permit.
[2]
The
applicant requested that the application for judicial review be granted, that
the decision of the officer be set aside and that the matter be remitted for
reconsideration before a different officer.
Background
[3]
In
July 2007, the applicant applied for a work authorization as a live-in
caregiver. As requested, she attended an interview at the Canadian Embassy in Lima, Peru on August 8,
2007. There is some dispute between the parties as to what happened during the
interview. The applicant alleged that the officer spoke quickly, did not give her
enough time to answer the questions, and quickly ended the interview. At the
end of the interview, the officer informed the applicant that her application
had been rejected. This was also communicated in a letter dated August 21,
2007. This is the judicial review of the officer’s decision.
Officer’s Decision
[4]
The
officer refused the application on the basis that the applicant did not meet
the necessary language requirements as described in subsection 112(d) of the Immigration
and Refugee Protection Regulations, S.O.R./2002-227 (the
Regulations). The officer’s Computer Assisted Immigration Processing System
(CAIPS) notes provide more insight into this finding:
Language: Applicant does not speak
English. She has learned how to say her name and certain words such as milk,
food, baby. However she can not follow a conversation or undersatnd [sic]
simple questions.
Issues
[5]
The
applicant submitted the following issue for consideration:
Did the officer err in law by
reaching the conclusion that the applicant was unable to speak, read and listen
to English or French at a level sufficient to communicate effectively in an
unsupervised situation?
[6]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
breach procedural fairness in failing to expressly mention documentation on the
record indicating that the applicant had completed English language training?
3. Did the officer
breach procedural fairness in failing to test the applicant’s English reading
and writing abilities?
4. Did the officer
breach procedural fairness in failing to respect the duty to ensure proper
testing conditions?
Applicant’s Submissions
[7]
The
applicant submitted that the appropriate standard of review for the officer’s
decision is reasonableness (Ram v. Canada (Minister of Citizenship
and Immigration), [2003] F.C.J. No. 855; Jhattu v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1058). The applicant
submitted that the officer breached procedural fairness in failing to ensure
proper testing conditions (Giacca v. Canada (Minister of
Citizenship and Immigration) (2000), 200 F.T.R. 107). It was submitted
that there is no indication from the CAIPS notes that the officer ensured
proper testing conditions such as speaking slowly and providing sufficient time
to answer questions. It was submitted that the Court has recognized that
testing is a stressful situation for persons examined, especially when job
prospects or immigration status are determined by the outcome of the language
test (Giacca, above). It was further submitted that the officer
breached procedural fairness in failing to evaluate the applicant’s English
reading and writing abilities. And finally, the applicant submitted that the
officer breached procedural fairness in failing to consider evidence submitted
as to the applicant’s English language training from CICEX – Special English
Language Institute. It was submitted that the officer had a duty to properly
examine and verify the evidence and failed to do so (Mascarenas v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 737).
Respondent’s Submissions
[8]
The
respondent submitted that the officer’s decision is discretionary and as such
it attracts a high degree of deference. It was submitted that the appropriate
standard of review is patent unreasonableness (Mercado v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1527; Bellido v. Canada
(Minister of Citizenship and Immigration), 2005 FC 452; Hua v.
Canada (Minister of
Citizenship and Immigration), 2004 FC 1647). The respondent
noted that subsection 112(d) requires that the applicant have the ability to
speak, read and listen in English and as such, there was no requirement
on the officer to test the applicant’s reading and writing abilities once it
was determined that her speaking abilities were insufficient.
Analysis and Decision
[9]
Issue
1
What is the appropriate
standard of review?
The applicant submitted that
the appropriate standard of review is reasonableness because the question is
one of mixed law and fact. The respondent submitted that the appropriate
standard of review is one of patent unreasonableness because the question is
purely factual. I disagree with both submissions. In my opinion, the applicant
has not challenged the officer’s overall finding to deny the application, but
yet has challenged the finding that the applicant did not meet the linguistic
requirements of the Regulations. The basis of the challenge to this finding is
three questions of procedural fairness. Questions of procedural fairness are
reviewable on a standard of correctness (Hassani v. Canada (Minister of
Citizenship and Immigration), [2007] 3 F.C.R. 501).
[10]
Issue
2
Did the officer breach
procedural fairness in failing to expressly mention documentation on the record
indicating that the applicant had completed English language training?
The applicant submitted that
the officer erred in failing to consider documentation supporting the
applicant’s language training from CICEX- Special English Language Institute.
It was submitted that the CAIPS notes do not indicate that the officer considered
this evidence and as such, the officer breached procedural fairness. In Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 at paragraph 17,
the Court stated the following about the duty on a decision maker to consider
and refer to evidence in rendering their decision:
[…] In other words, the agency's burden
of explanation increases with the relevance of the evidence in question to the
disputed facts. Thus, a blanket statement that the agency has considered all
the evidence will not suffice when the evidence omitted from any discussion in
the reasons appears squarely to contradict the agency's finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its
finding, but is silent on evidence pointing to the opposite conclusion, it may
be easier to infer that the agency overlooked the contradictory evidence when
making its finding of fact.
[11]
In
my opinion, given that the officer found that the applicant’s spoken English
was insufficient, the officer was under a duty to consider and expressly refer
to this documentation. Failure to do so leaves the applicant wondering whether
it was considered at all and how it factored into the officer’s analysis. I am
satisfied that the officer breached procedural fairness in this regard. I would
allow the judicial review on this ground.
[12]
The
applicant has submitted an affidavit swearing to the conditions alleged. The
visa officer filed an affidavit in which no mention was made of the applicant’s
assertions concerning the conduct of the interview. The CAIPS notes are also
silent on this point.
[13]
As
I have no reason to disbelieve the applicant’s statements, I must conclude that
the officer breached the duty of procedural fairness in failing to respect the
duty to ensure proper testing conditions.
[14]
I
need not deal with the other issue raised by the applicant.
[15]
The
application for judicial review is therefore allowed and the matter is remitted
for reconsideration before a different officer.
[16]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[17]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is remitted for reconsideration before a different officer.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration
and Refugee Protection Regulations, S.C. 2001, c. 27:
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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.
|
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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Immigration
Manual OP 14 : Processing Applicants for the Live-in Caregiver Program:
|
5.6 Language
Ability
Live-in
caregivers must have a level of fluency in English or French that enables
them to function independently in an unsupervised setting and to protect the
persons in their care. They must be able to:
• respond to
emergency situations by contacting a doctor, ambulance, police or fire
department;
• answer the
telephone and the door;
• read the
labels on medication; and
• may be
required to communicate with others outside the home, such as schools,
stores, or other institutions.
A proficiency
in speaking, understanding and reading will also ensure that caregivers
understand their rights and obligations and are not dependent on their
employers to interpret provincial labour legislation and employment
standards. They will also be better equipped to seek outside assistance in
the event of personal difficulties or if they find themselves in an abusive
employment situation.
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5.6
Connaissance de la langue
L'aide
familial résidant doit parler l'anglais ou le français pour pouvoir évoluer
de façon autonome dans une situation non supervisée et protéger les personnes
qui lui sont confiées. Il doit être en mesure de :
•
faire face aux situations d'urgence, par exemple appeler un médecin,
l'ambulance, la police ou les pompiers;
•
répondre au téléphone et aller voir qui est à la porte;
•
lire l'étiquette d'un médicament; et
•
communiquer avec d'autres personnes hors du foyer, notamment à l'école, au
magasin ou dans d'autres établissements.
De
plus, un aide familial résidant qui parle, comprend et lit bien la langue
comprendra ses droits et ses obligations et ne dépendra pas de son employeur
pour l'interprétation de la législation du travail et des normes d'emploi
provinciales. En outre, il sera mieux armé pour demander de l'aide à
l'extérieur en cas de difficulté personnelle ou de violence dans sa situation
d'emploi.
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