Date: 20080122
Docket: IMM-3012-07
Citation:
2008 FC 72
Ottawa, Ontario, January 22, 2008
PRESENT:
THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
YANIQUE
DURAND DUROSEAU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGATION OF CANADA
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 (IRPA), for judicial review of an
immigration officer’s (the officer) decision, dated
June 14, 2007, refusing to issue the applicant a live-in caregiver work permit.
ISSUES
[2]
This
application for judicial review raises the following questions:
a) Did the officer commit a
reviewable error by determining that the applicant could not be issued a permit
under subparagraph 200(3)(e)(i) of the Immigration and Refugee
Protection Regulations, SOR /2002-227 (the Regulations)?
b) Did the officer commit a
reviewable error by determining that the employment contract entered into
between the applicant and Ms. Darius was a contract of convenience and not a
genuine employment contract?
[3]
For the
reasons that follow, the application for judicial review is dismissed.
FACTUAL BACKGROUND
[4]
The
applicant is a citizen of Haiti. When she arrived in Canada
in September 2006, she held a visitor visa to Canada valid from August 11, 2006 to September
19, 2008.
[5]
According
to the sample contract for the Live-In Caregiver Program, the applicant and Ms. Darius started living together
at the same address on October 6, 2006, if not earlier, and these two
individuals signed a contract with one another on that date.
[6]
The
applicant did not apply for a work permit as a live-in caregiver until
March 2007.
[7]
She was
called in for an interview with the officer on June 14, 2007. She admitted that
she took care of Ms. Darius’ children while Ms. Darius was at work.
IMPUGNED DECISION
[8]
The
officer refused to issue a work permit to her for two reasons:
a) First, she referred to the
prohibition against issuing a work permit under subparagraph 200(3)(e)(i)
to persons having engaged in unauthorized work in Canada in the past six months. The officer
believed that the applicant had engaged in such work since her arrival in Canada by helping Ms. Darius
with her children. The notes from the Computer Assisted Immigration Processing
System (CAIPS notes) indicate as follows:
I ASKED THE APPLICANT WHETHER
SHE LOOKED AFTER HER FRIEND’S CHILDREN. THE APPLICANT ADMITTED TO HAVING
LOOKED AFTER THE CHILDREN. SHE PROCEEDED TO TELL ME THAT SHE WAS NEVER PAID FOR
HER WORK. THE PI STATED THAT THEY HAD AN “AGREEMENT”.
b) Second, the officer determined
that the applicant did not meet the requirements of section 112 of the
Regulations because the employment contract is not genuine and constitutes an
offer of convenience aimed at facilitating the applicant’s acquisition of
status in Canada. The CAIPS notes state as
follows:
APPLICANT HAS BEEN OFFERED A
JOB AS A LIVE IN CAREGIVER FOR HER FRIEND MARTHA DARIUS. THE PI HAS KNOWN THE
EMPLOYER SINCE THEY WERE BOTH LIVING IN HAITI.
[…]
DURING THE INTERVIEW THE
APPLICANT WAS NOT FORTHCOMING WITH INFORMATION PERTAINING TO HER TIME THAT SHE
HAS SPENT IN CANADA.
[…]
NO SUPPORTING DOCUMENTS WERE
SUBMITTED TO SUBSTANTIATE PI’S STATEMENT.
RELEVANT PROVISIONS
[9]
Immigration
and Refugee Protection Regulations, SOR /2002-227.
|
2.
"work"
means an activity for which wages are paid or commission is earned, or that
is in direct competition with the activities of Canadian citizens or
permanent residents in the Canadian labour market.
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.
200.
(3) An
officer shall not issue a work permit to a foreign national if
(e)
the foreign national has engaged in unauthorized study or work in Canada or
has failed to comply with a condition of a previous permit or authorization
unless
(i)
a period of six months has elapsed since the cessation of the unauthorized
work or study or failure to comply with a condition,
|
2. «travail» Activité qui donne
lieu au paiement d’un salaire ou d’une commission, ou qui est en concurrence
directe avec les activités des citoyens canadiens ou des résidents permanents
sur le marché du travail au Canada.
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.
200. (3) Le permis de travail ne
peut être délivré à l’étranger dans les cas suivants :
e) il a poursuivi des études ou
exercé un emploi au Canada sans autorisation ou permis ou a enfreint les
conditions de l’autorisation ou du permis qui lui a été délivré, sauf dans
les cas suivants :
(i)
une période de six mois s’est écoulée depuis les faits reprochés,
|
ANALYSIS
Standard of Review
[10]
I am
of the opinion that the appropriate standard of review is reasonableness simpliciter (Jhattu v.
Canada (Minister of Citizenship and Immigration), [2005] F.C.J. no. 1058
(QL), 2005 FC 853, paragraph 12). The parties agree that this is the
appropriate standard.
Work Prior to Issuance of Permit
[11]
The
officer determined that the assistance provided to Ms. Darius by the
applicant constitutes work. The applicant argues that it is impossible to prove
on the basis of the CAIPS notes that she was engaged in work in Canada. She
objects to the respondent’s allegation contained in the officer’s affidavit [translation] “that she took care of Ms.
Darius’ children when she worked and that, in return, Ms. Darius gave her room
and board.”
[12]
Only the
reasons contained in the letter dated June 14, 2007 and the CAIPS notes can
constitute grounds for the decision. Although the affidavit can clarify the
facts to some extent, the additional reasons for refusal that might be included
in that document cannot be used to explain the decision.
[13]
Despite
the foregoing, I am of the opinion that it was reasonable for the officer to
determine that the applicant had worked without authorization. According to the
letter dated June 14 and the CAIPS notes, it is clear that the officer drew an
inference from the information she obtained during the interview:
DURING THE INTERVIEW THE
APPLICANT WAS NOT FORTHCOMING WITH INFORMATION PERTAINING TO HER TIME THAT SHE
HAS SPENT IN CANADA.
[…]
I ASKED THE APPLICANT WHETHER
SHE LOOKED AFTER HER FRIEND’S CHILDREN. THE APPLICANT ADMITTED TO HAVING
LOOKED AFTER THE CHILDREN. SHE PROCEEDED TO TELL ME THAT SHE WAS NEVER PAID FOR
HER WORK. THE PI STATED THAT THEY HAD AN “AGREEMENT”.
[14]
It was the
officer’s prerogative to infer that the applicant had received compensation in
consideration for her assistance.
[15]
The
definition of “work” set forth in the Regulations does not require compensation
to have been received in order for an activity to be considered work. The
activity merely has to be “in direct competition with the activities of
Canadian citizens or permanent residents in the Canadian labour market.” In my
view, child care meets the definition of work.
[16]
For these
reasons, I am of the opinion that the officer did not commit a reviewable
error.
Contract Not Entered Into in Good Faith
[17]
The
officer determined that the offer of employment was not made in good faith, but
rather out of convenience. Having regard to the circumstances, that was not an
unreasonable conclusion. In Vairea v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. no. 1563 (QL), 2006 FC 1238, at paragraph
17, Martineau J. wrote as follows in agreeing with an officer’s refusal of
a work permit:
In my opinion, the visa officer could
base her refusal to issue a work
permit simply on the concerns she had with respect to the bona fide character
of the offer made by Southern Renovation. […]
[18]
According
to the applicant, the officer committed a reviewable error by raising the
existence of a friendship between her and her employer.
[19]
In my
view, the friendship between the applicant and the employer is just one fact
among many justifying the officer’s doubts as to the bona fide character of the
contract. The fact that the applicant lived in Ms. Darius’ home prior to
submitting her application, the length of time before she submitted it, and the
fact that the applicant was engaged in child-care activity all provide
sufficient support for the officer’s decision.
[20]
The
officer based her decision on relevant considerations supported by the
evidence.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that the application for judicial review be dismissed.
“Michel
Beaudry”
Certified
true translation
Stefan
Winfield, Translator
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