Date: 20081006
Docket: IMM-2806-07
Citation: 2008 FC 1127
Ottawa, Ontario, October
6, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
RODALYN
ABULE VILLAGONZALO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND 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) for judicial review of a
decision of a visa officer (the officer) at the Canadian Embassy in Makati
City, Philippines dated June 21, 2007, wherein the officer found that Rodalyn Abule
Villagonzalo (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]
The
applicant applied for a work permit on June 28, 2006 under the live-in
caregiver program. The Canadian Embassy in Makati City requested
that the applicant attend an interview on June 21, 2007. During the interview,
the applicant was asked about her previous travels to Canada.
[4]
The
applicant had previously been issued a Temporary Resident Visa (TRV) so that
she could attend her brother’s wedding in Canada. Before the
issuance of that permit, the applicant had expressed that her intended purpose
for travel to Canada was to
travel with her parents for a month and to attend her brother’s wedding to be
held on September 11, 2004. However, the applicant stated at the June 21, 2007
interview, that she in fact did not attend her brother’s wedding because her
daughter was ill. Instead, the applicant travelled to Canada in November
2004 without her parents. During her stay in Canada, she was
offered employment from her sister as a live-in caregiver. While finalizing the
details of her work permit application, it appears that the applicant undertook
to extend her visitor status while in Canada as it was set to expire
on or about May 12, 2005. The applicant’s request for an extension was denied
on May 22, 2005 and she left Canada on June 1, 2005. It appears that the
applicant’s first work permit application, made while she was in Canada, was
eventually denied.
[5]
In
a decision dated June 21, 2007, the same day as the interview, the officer
decided that the applicant did not meet the requirements for a work permit.
This is the judicial review of the officer’s decision.
Officer’s
Decision
[6]
The
officer’s decision was communicated in a standard form letter dated June 21,
2007. The reason given for the denial was that the applicant had failed to
satisfy the officer that she would leave Canada by the end of the period
authorized for the stay because she had “a past history of not respecting the
terms and conditions of [her] previous visa.”
[7]
The
officer’s notes concerning the June 21, 2007 interview provide more insight
into the reasons provided by the officer in denying the application:
PA informs me that she went to CDA as a
visitor (V040800781) on 13NOV2004. FOSS record shows PA was denied VR on
17MAY2005. PA left CDA for the US on 01JUN2005, at which time
after overstaying her initial TRV and being denied VR, the PA was out of
status.
PA states she did not go to CDA with her
parents as she stated at intv. At Intv PA confirms she stated she would only be
in CDA a month.
PA states she stayed at her sister’s
house (now her employer) during the time she was in CDA for 8 mths.
PA has clearly previously misrepresented
at the very least her intentions on her TRV. Furthermore she then overstayed
said visa.
PA has a history of not respecting
T&Cs of a TRV.
I have examined the contents of the file
and not withstanding the submissions of the PA, based on her past history, of
not respecting the T&Cs of her previous TRV, I am not satisfied he [sic]
is a BF Temp Resident as mentioned in A20(1)(b).
Issues
[8]
The
applicant submitted the following issue for consideration:
1. Did
the officer base the decision on irrelevant considerations or on erroneous findings
of fact made in a perverse or capricious manner or without regard to the
material presented before the officer?
[9]
I
would rephrase the issues as follows:
1. What
is the appropriate standard of review?
2. Did
the visa officer err in finding that the applicant failed to meet the
conditions of her previous Temporary Residence Visa?
3. Did
the visa officer fail to properly assess the applicant’s eligibility for the live-in
caregiver program?
Applicant’s Written
Submissions
[10]
The
applicant submitted that the appropriate standard of review is reasonableness simpliciter
because the issue is a question of mixed fact and law (Ram v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 855; Jhattu
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 853).
[11]
It
was submitted that the officer’s decision was unreasonable in light of the
reasonable explanation provided by the applicant with regards to her past stays
in Canada. The
applicant argued that the officer failed to take into account that throughout
her previous stay in Canada, the applicant undertook to maintain valid
TRV status and promptly left when her request for an extension was refused. It
was submitted that the officer acted unfairly in failing to balance the factors
described in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, and instead
made the applicant’s previous TRV determinative of this application. Failure to
consider the applicant’s entire application for a work permit with regards to
the entire factual context is a breach of the visa officer’s duty of fairness (Akhbari
v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1773).
[12]
It
was further submitted that the officer erred in failing to follow the
departmental guidelines set out in Immigration Manual OP 14. This guideline
provides that as live-in caregivers are permitted to apply for permanent
residence after two years of employment in Canada, it is hard to apply the
normal requirement that the applicant will leave Canada, and instead officers
should be satisfied that the applicant will leave Canada if the application for
permanent residence is refused. In light of this guideline, it was submitted
that the officer erred in failing to recognize that live-in caregivers may have
dual intent for immigration to Canada.
Respondent’s Written
Submissions
[13]
The
respondent submitted that the officer’s decision to refuse the applicant on the
basis of the non-compliance with the previous TRV was reasonable. The
respondent noted that contrary to what was sworn in her affidavit, the
applicant did not ensure that throughout her stay in Canada she had
observed and respected Canadian immigration laws, nor did she leave immediately
upon having her visa refused. Given that in the past the applicant had not
followed her stated intention for coming to Canada, the officer
had justification for questioning the applicant’s present intentions in seeking
a work permit.
[14]
Moreover,
the respondent submitted that the officer’s decision was reasonable given that
regardless of whether the live-in caregiver requirements were met, the
applicant still had to comply with the requirements for a work permit which
included satisfying the officer that she was a bona fide
temporary resident and would leave Canada at the end of the
authorized period.
[15]
With
regards to the departmental guidelines set out in Immigration Manual OP 14, the
respondent submitted that although live-in caregivers may have dual intent for
immigrating to Canada, some workers do not in the end apply for
permanent residency. Since there is no prima facie assumption
that they will in fact apply for permanent residency, they are still required
to meet the requirement imposed on workers. It was submitted that in rendering
a positive decision, an officer should be satisfied that the applicant will not
stay in Canada illegally
once their authorized stay has expired in accordance with the guidelines. The
respondent submitted that the officer legitimately refused the work permit
given the applicant’s past history of not respecting the terms and conditions
of her TRV and that she had not established from the contents of her
application or submissions at the interview, that she would leave at the end of
her stay if the application was not allowed.
Applicant’s Written Reply
[16]
In
reply, the applicant reiterated that during her stay in Canada under a TRVshe
maintained valid or implied status and provided bona fide reasons for
wanting to extend her temporary resident visa. The applicant also noted that
IRPA prohibits applicants from applying for a Canadian work permit while
maintaining valid or implied status in Canada and thus the officer erred in making a negative
inference with respect to the applicant’s previous work permit application.
Analysis and
Decision
[17]
Issue
1
What is
the appropriate standard of review?
The
Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9 collapsed the
standard of reasonableness simpliciter and patent unreasonableness for a
more straightforward standard of reasonableness. Dunsmuir above, also
streamlined the steps to take in establishing the appropriate standard of
review, which was previously referred to as the “pragmatic and functional”
approach. The Supreme Court proposed a two step process at paragraph 62:
First,
courts ascertain whether the jurisprudence has already determined in a
satisfactory manner the degree of [deference] to be accorded with regard to a
particular category of question. Second, where the first inquiry proves
unfruitful, courts must proceed to an analysis of the factors making it
possible to identify the proper standard of review.
[18]
The proper standard
of review pre-Dunsmuir of a visa officer’s decision was reasonableness simpliciter
(Yin v.
Canada (Minister of Citizenship and
Immigration),
[2001] F.C.J. No. 985 (T.D.);
Jhattu v. Canada (Minister of Citizenship and
Immigration) (2005),
F.C.J. No. 1058). In my opinion, the question of whether the officer failed to
meet the conditions of her previous TRV and failed to properly assess her
eligibility for the live-in caregiver program is reviewable on a standard of
reasonableness in light of Dunsmuir above.
[19]
When reviewing a
decision on the standard of reasonableness, the analysis will be concerned with
"the existence of justification, transparency and intelligibility within
the decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law" (Dunsmuir above, at paragraph
47).
[20]
Issue
2
Did the
visa officer err in finding that the applicant failed to meet the conditions of
her previous Temporary Resident Visa?
As I read
the visa officer’s decision, his reason for rejecting the application was that
he was not satisfied that the applicant would leave Canada when
required to do so.
[21]
The
applicant explained that she originally received a six month TRV to come to Canada to attend
her brother’s wedding. Due to her child being sick, she was unable to attend
the wedding. She did, however, come to Canada in November
2004 to visit her family. The applicant deposed that she told this to the visa
officer at the time of her interview for a work permit.
[22]
The
applicant applied for an extension of her TRV which was denied on May 17, 2005.
The denial was received by the applicant a few days later.
[23]
The
applicant left Canada for the United States on June 1, 2005.
[24]
It
appears that her failure to attend her brother’s wedding and her failure to
leave Canada between either May 17, 2005 or May 22, 2005 (the date she received
the refusal) and June 1, 2005 caused the visa officer to believe that the
applicant in the future, would not leave Canada by the end of any period
authorized for her stay.
[25]
The
visa officer stated other reasons in his affidavit for believing that the
applicant would not leave at the appropriate time, however, I cannot find these
other reasons stated in the refusal letter or the CAIPS notes.
[26]
I
am of the opinion that the visa officer’s decision was not reasonable. There
should have been some consideration of the applicant’s explanations.
[27]
As
a result, the application for judicial review must be allowed and the matter
submitted to a different visa officer for reconsideration.
[28]
Because
of my finding on this issue, I need not deal with the remaining issue.
[29]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[30]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different visa officer for reconsideration.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27:
|
20.(1)
Every foreign national, other than a foreign national referred to in section
19, who seeks to enter or remain in Canada must establish,
(a) to become
a permanent resident, that they hold the visa or other document required
under the regulations and have come to Canada in order to establish permanent
residence; and
(b) to become
a temporary resident, that they hold the visa or other document required
under the regulations and will leave Canada by the end of the period authorized
for their stay.
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20.(1)
L’étranger non visé à l’article 19 qui cherche à entrer au Canada ou à y
séjourner est tenu de prouver :
a)
pour devenir un résident permanent, qu’il détient les visa ou autres
documents réglementaires et vient s’y établir en permanence;
b)
pour devenir un résident temporaire, qu’il détient les visa ou autres
documents requis par règlement et aura quitté le Canada à la fin de la
période de séjour autorisée.
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Immigration
Manual OP14 : Processing Applicants for the Live-in Caregiver
Program :
|
8.4
Statutory requirements for admissibility
The applicant
must undergo the following admissibility checks after the officer has
determined that the applicant meets the LCP eligibility criteria:
- medical
examination;
- security
check for applicants in certain countries (see IC 1, Security and
Criminal Screening of Immigrants);
- compliance
with normal visitor requirements (For further information, see OP 11,
Visitors)
Note: Live-in
caregivers are permitted by Regulation to apply for permanent resident after
two years of employment within three years of their arrival in Canada. Thus, it is difficult to apply the normal requirement
that temporary residents will leave Canada by the end of the period authorized
for their stay. Insofar as possible, given the difficulty of establishing
future intentions, officers should satisfy themselves that an applicant for
the live-in caregiver program has the intention of leaving Canada should the
application for permanent residence be refused. The question is not so much
whether the applicant will seek permanent residence but whether the person
will stay in Canada illegally.
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8.4
Exigences réglementaires touchant l'admissibilité
Après
que l'agent a établi que le requérant répond aux critères d'admissibilité au
PAFR, celui-ci doit :
•
se soumettre à un examen médical;
•
faire l'objet d'un contrôle sécuritaire (pour les requérants de certains pays
- consulter le guide
[IC
1, Triage sécuritaire et vérification judiciaire concernant les immigrants]);
•
satisfaire aux exigences qui s'appliquent habituellement aux visiteurs (pour
tout renseignement,
consulter
le guide OP 11, Visiteurs).
Note
: L'aide familial résidant est autorisé par le Règlement à demander la
résidence permanente
après
avoir occupé un emploi durant deux ans au cours des trois années suivant son
arrivée
au Canada. Il est donc difficile d'appliquer à son endroit les exigences
habituelles voulant qu'un résident temporaire quitte le Canada à la fin de sa
période de séjour
autorisée.
Dans la mesure du possible, compte tenu de la difficulté d'établir ce qu'une
personne
a l'intention de faire à l'avenir, l'agent doit s'assurer qu'un candidat au
Programme
des aides familiaux résidants a l'intention de quitter le Canada dans le cas
où
sa
demande de résidence permanente serait refusée. La question ne consiste pas
tant à
savoir
si le requérant demandera la résidence permanente, mais s'il demeurera
illégalement
au Canada.
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