Date: 20080708
Docket: IMM-4097-07
Citation: 2008 FC 842
Montréal, Quebec,
July 8, 2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
ANGELITA
GUINTO BONDOC
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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, S.C. 2001, c. 27 (the Act), of the decision of
a visa officer, dated July 24, 2007, refusing the applicants’ application for a
work permit in Canada as a “live‑in caregiver” (LIC).
I. Facts
[2]
A
citizen of the Philippines, the applicant applied for a work permit and a
temporary resident visa as a part of the Live‑In Caregiver Program (LICP).
Her intended employers were her sister and brother-in-law, both residents of Canada with their
two children. At the time the application was submitted the children were 13
and 7 years old; the children are now 14 and 8 years old.
[3]
Once
the applicant received the validation of employment from Human Resources and
Social Development Canada (HRSDC), she applied to Citizenship and Immigration
Canada (CIC) for her work permit and temporary resident visa. The applicant
attended an interview on July 24, 2007 and in a decision dated that same day,
the visa officer denied her application.
II. Impugned Decision
[4]
In
a letter dated July 24, 2007, the visa officer provided three main reasons to
refuse the application:
a. The
employment offer was not genuine. In making this finding, the visa officer considered
that the future employer was the applicant’s sister, that she had never before
hired a caregiver, that neither of the children had physical or mental
disabilities, that the applicant’s work hours were the same hours the children
were in school with the exception of the period from 8:00 a.m. to 9:00 a.m.,
and that while the children would soon be on summer vacation the parents had
never hired a caregiver during this period.
b. The applicant
was “unable to demonstrate that [she had] sufficient knowledge and skills to
adequately provide care without supervision”.
c. That “the job
offer was made primarily for the purpose of facilitating [the applicant’s]
admission to Canada” and that the applicant’s intentions in coming to Canada were not for
a temporary purpose.
III. Issues
[5]
The
impugned decision raises three issues:
1. Did the visa
officer err in finding that the offer of employment was not genuine?
2. Did the visa
officer err in finding that the applicant’s knowledge and skills to provide
satisfactory care without supervision were inadequate?
3. Did the visa
officer err in finding that the applicant’s intention in coming to Canada was not for
a temporary purpose?
IV. Standard
of Review
[6]
The question is whether
the visa
officer erred in her factual assessment of the applicant’s
application. Therefore the standard of review is reasonableness (Dunsmuir v.
New Brunswick, 2008 SCC 9). And as mentioned in Dunsmuir,
at paragraph 161, “decisions on questions of fact always attract deference” and
“when the issue is limited to questions of fact, there is no need to enquire
into any other factor in order to determine that deference is owed to an
administrative decision maker”. Reasonableness remains the appropriate
standard of review in this case.
[7]
As pointed out also in Dunsmuir
(above, at paragraph 47), this Court is only concerned “mostly with the
existence of justification, transparency and intelligibility within the
decision-making process […] whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law”.
V. Legislation
[8]
“Live-in caregiver” is defined by s. 2 of
the Immigration and Refugee Protection Regulations (Regulations) as
follows:
|
“Live-in
caregiver” means 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.
|
« aide familial » Personne qui fournit sans
supervision des soins à domicile à un enfant, à une personne âgée ou à une
personne handicapée, dans une résidence privée située au Canada où résident à
la fois la personne bénéficiant des soins et celle qui les prodigue.
|
[9]
The
purpose of the LICP is both to fulfill the live-in care needs of the Canadian
employer and also to allow the live-in caregiver to apply for permanent
residence once the program is completed.
[10]
In
order to enter the LICP, the prospective employer first must submit for
validation an offer of employment to Human Resources and social Development
Canada (HRSDC), and subsequently obtain from a visa officer a work permit and a
temporary resident visa (TRV) in Canada as a “live-in caregiver”.
[11]
According
to Manual OP14, s. 5.7, validation indicates that the HRSDC officer was
satisfied of the following:
a. The offer of
employment exists;
b. There is a need
established for the live-in care; and
c. A reasonable
search has been carried out to identify qualified and available Canadian
citizens and/or permanent residents and unemployed foreign caregivers already
in Canada.
[12]
Having
obtained HRSDC validation of the offer of employment, the applicant then
applies to a visa officer for a work permit and, if necessary, a TRV. According
to s.112 of the Regulations, the visa officer is entitled to assess the
applicant’s application for a work permit based on a series of requirements,
including the employment contract with her future employer. Section 112 of the
Regulations reads as follows:
|
A work permit shall not be issued to a foreign national who seeks to enter Canada as a live-in caregiver unless they
|
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) applied for a work permit as a live-in
caregiver before entering Canada;
|
a)
il a fait une demande de permis de travail à titre d’aide familial avant
d’entrer au Canada;
|
|
(b) have successfully completed a course of
study that is equivalent to the successful completion of secondary school in Canada;
|
b)
il a terminé avec succès des études d’un niveau équivalent à des études
secondaires terminées avec succès au 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;
|
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)
have the ability to speak, read and listen to English or French at a level
sufficient to communicate effectively in an unsupervised setting; and
|
d)
il peut parler, lire et écouter l’anglais ou le français suffisamment pour
communiquer de façon efficace dans une situation non supervisée;
|
|
(e) have an employment contract with their
future employer.
|
e)
il a conclu un contrat d’emploi avec son futur employeur
|
|
[Emphasis added.]
|
[Souligné ajouté.]
|
[13]
The
applicable processing manual specifically states that the assessment of the
employment contract includes establishing that it is bona fide. This
Court has implicitly accepted in the case of Soor v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1344 , [2006] F.C.J. No.1726 (QL),
that the words “bona fide” can be inserted before “employment contract”
when the visa officer makes a determination under s. 112(e) of the Act.
The bona fides of the contract is therefore a legitimate issue for consideration
by the visa officer, and an examination of the relationship between the
employer and the potential employee therefore may be required.
VI. Analysis
a. Did the visa officer
err in finding that the offer of employment was not genuine?
[14]
The
relevant portion of the decision reads as follows:
I took into consideration that your
future employer is your sister. She and her husband have never before hired a
caregiver for their 14- and 8-year old children. Neither of the children has
physical nor mental disabilities. Although at interview you had justified the
sudden need for one because the children are starting with their summer break
in August, I do not find this reason to be credible since the children have
been having summer breaks for the past several years yet the employers had not
hired a live-in caregiver for this purpose. Further the children are in school
from 9am-5pm; your work schedule is from 8am-4pm. You had stated that while the
children are in school, you will be doing light housekeeping, tidying up the
house and preparing the children’s meals. It appears that you will be doing
more household chores than providing unsupervised care.
[15]
The
applicant submits that this finding is unreasonable. However and in light of
the evidence on record, this Court is satisfied that the impugned decision is
reasonable. The visa officer was justified to assess the bona fides of
the future employment position, the relationship between the employer and the
potential employee. The officer did not simply reject the application because
the employment offer came from within family, but instead reviewed the “overall
picture”, to find that the employment position was not bona fide.
[16]
The
HRSDC deals exclusively with the employer in Canada, and
therefore is not responsible for assessing the bona fides of the
employment contract. The visa officer has the responsibility to assess the
intent of both parties to the contract. As to the duties envisaged by the
employment contract, the visa officer committed no unreasonable error in
concluding that the applicant’s duties were more in line with domestic duties,
rather than providing unsupervised care to the children. And finally, with
regards to the submission that the visa officer failed to consider the need of
the potential employer, namely a letter faxed to HRSDC which described the
potential employer’s need for assistance, this Court notes that this letter is
referred to in the Computer Assisted Immigration Processing System (CAIPS)
notes, and therefore was considered by the visa officer.
[17]
Having
reviewed the evidence on record, including the CAIPS notes, the decision and
the affidavit produced by the visa officer, this Court concludes that, viewed
as a whole, the visa officer’s finding that the employment offer was not
genuine is reasonable. With regards to the officer’s consideration of the
applicant’s familial relationship with her future employer, this Court notes that
this is not the only pertinent factor considered in the officer’s assessment
of the bona fides of the employment offer. This consideration should
not be isolated from the other factors that were also considered in support of
this finding. And even if nothing in the Act or its Regulations prevents
employment offers between family members, nothing on the other hand prevented
the officer to consider the family relationship with the other factors that were
considered in order to be able to convince herself that the applicant’s offer of
employment was not genuine.
[18]
As
to the argument that the visa officer failed to give adequate consideration to
the HRSDC officer’s validation of the employment contract, this argument has no
merit. It is within the power of a visa officer to assess the genuineness of an
employer’s offer, and there is no requirement for him to give deference to the
HRSDC officer’s assessment of the validity of the employment offer.
[19]
The
evidence before the visa officer included that the potential employers had
never hired a caregiver for their children, that their children did not require
any special assistance due to physical or mental disabilities, and that
although summer vacation was approaching the family had always managed without
a caregiver in the past. There is no evidence supporting a sudden need of
special assistance. Moreover, the applicant’s proposed work schedule was such
that she would only be regularly responsible for supervising the children for
one hour a day from 8:00am to 9:00am. In light of the evidence before the officer,
the Court is satisfied that the impugned decision is reasonable.
b. Did the visa officer
err in finding that the applicant’s knowledge and skills to provide
satisfactory care without supervision were inadequate?
[20]
The
applicant submitted that the HRSDC officer’s approval and CIC officials’
positive pre-screening of the applicant’s caregiver skills, as completed with
the results of the applicant’s “SPEAK” test, created a strong presumption that
the applicant is qualified as a “live-in caregiver” and
has met the objective criteria set out in section 112 of the Regulations, and
that the visa officer did not displace this presumption with sufficient reasons.
[21]
But
it is the visa officer who is required to assess whether the applicant is
legitimately capable of performing the required duties, not the HRSDC officer.
Paragraph 200(3)(a) of the Regulations stipulates clearly that an
officer shall not issue a work permit to a foreign national if there are
reasonable grounds to believe the foreign national is unable to perform the
work sought. The visa officer performed the duties delegated to him and
reached a reasonable finding given the evidence on record.
[22]
The
relevant portion of the impugned decision reads as follows: “In addition, you
were unable to demonstrate that you have sufficient knowledge and skills to
adequately provide care without supervision. [Immigration and Refugee
Protection Regulations 2 “live-in caregiver” and paragraph 200(3)(a)]”. The
CAIPS notes provide more insight into the reasoning behind this finding.
[23]
The
applicant opposes to this finding an alleged presumption that the applicant had
the necessary skills given the pre-screening approvals from HRSDC and CIC
officials. This Court disagrees with such an argument. While these officials
have a role to play in the administration of the LIC Program, it is the visa
officer who must be satisfied that the requirements are met, not the HRSDC and
CIC officials.
[24]
Thus,
the visa officer must deny the application if satisfied that there are
reasonable grounds to believe that the foreign national is unable to perform
the duties of a live-in caregiver. In the present case, the visa officer
indicated in the CAIPS notes that despite the documentary evidence attesting to
the applicant’s qualifications, still she was not satisfied based on the
applicant’s answers to her questions that she had the necessary knowledge and
skills to work in an unsupervised setting. This finding is reasonable given the
insufficient answers provided by the applicant to the visa officer’s questions.
[25]
While
the applicant submits that her responses were correct and that the visa officer
had no “right answers” with which to compare her answers, this Court disagrees,
since the applicant’s responses to the questions were clearly incomplete. The
applicant has also failed to convince the Court that the visa officer breached
procedural fairness in failing to provide adequate reasons for this finding.
While there is perhaps a lack of explanation for the finding in the actual
letter explaining the decision, the CAIPS notes provide sufficient explanation.
[26]
This
Court sees no reason to interfere with the decision on this ground.
c. Did the visa officer err in finding
that the applicant’s intention in coming to Canada was not for
a temporary purpose?
[27]
As
discussed above, the visa officer concluded that the job offer was not genuine
and was made primarily for facilitating the applicant’s admission to Canada. This
appears to have led the visa officer to further believe that the applicant was
not a person who sought to come to Canada for a temporary
purpose. The relevant portion of the visa officer’s decision reads:
I have concluded that, on a balance of
probabilities, the job offer was made primarily for the purpose of facilitating
your admission to Canada. Sub-paragraph 200(1)(c)(iii)
of the Immigration and Refugee Protection Regulations states that, “subject to
subsections (2) and (3), an officer shall issue a work permit to a foreign
national if, following an examination, it is established that (…) the foreign
national … has been offered employment and an officer has determined under
section 203 that the offer is genuine…
Under the circumstances a work permit and
a temporary resident visa cannot be issued because in opinion you are not a
person who seeks to come into Canada for a temporary purpose
[Immigration and Refugee Protection Regulations 179(a) and (d)].
[28]
The
applicant submits that the visa officer erred with this finding because it
fails to take into consideration the purpose of the LIC Program, and is
unreasonable given the absence of any evidence to support such a finding. On
the other hand the Court considers that while there is a provision entitling
applicants for the LIC Program to have a dual intent in entering Canada, the visa
officer must still be satisfied that ultimately the applicant would depart Canada and not
remain here illegally if their application for permanent residence is denied.
[29]
Having
reviewed the entirety of the evidence before the visa officer, this Court
agrees with the applicant that this finding is not supported by the evidence and
that the visa officer had no basis to make it. In fact, the visa officer’s appears
to ignore the applicant’s close ties to the Philippines including
the fact that her husband and young child resided there. It is also an error
for the visa officer to ignore in his decision the dual intent nature of the
LIC Program. The visa officer does not have to be satisfied that the applicant
has a temporary purpose in coming to Canada, but instead that the applicant
will not remain illegally in Canada if her application for permanent residence
under the LIC class is rejected.
VII. Conclusion
[30]
While the visa officer did err in her finding that the
applicant did not seek to come to Canada for a temporary purpose, still this error has no serious consequence on the
impugned decision, since this Court has already found that the first two issues
are both determinative of the visa officer’s
decision that the applicant does not meet the LICP’s requirements, and
that this finding is reasonable. So that even if the officer erred, the
applicant still failed to meet the minimum level of eligibility, and therefore
the error becomes immaterial and does not justify the intervention of this
Court.
[31]
Consequently, and in spite of the above noted error, the Court
concludes that the impugned decision
falls as a whole within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law, and is reasonable. Therefore the
application will be dismissed.
[32]
Further,
the Court agrees with the parties that there is no question of general interest
to certify.
JUDGMENT
FOR THE
FOREGOING REASONS THE COURT dismisses the application.
“Maurice E. Lagacé”
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