Date:
20130228
Docket:
IMM-4106-12
Citation:
2013 FC 211
Ottawa, Ontario,
February 28, 2013
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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EPHRAIM TIANGHA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], s 72(1), of a decision by an
Immigration Officer to refuse the applicant’s request for permanent residence
under the Live-In Caregiver Class. While Mr. Tiangha had met the eligibility
requirements, he had also undertaken additional work without authorization and
did not satisfy the officer that an exemption on humanitarian and compassionate
grounds should be granted.
[2]
For
the reasons that follow, the application is granted
BACKGROUND:
[3]
Mr.
Tiangha came to Canada from the Philippines on September 30, 2006 under the
live-in caregiver program. He is a registered nurse. Upon arrival, he discovered
that his employer in Toronto was no longer able to hire him. His agency found
him an alternate employer in Calgary, for whom he worked for the next 22
months. After his employer passed away at the age of one hundred in November
2008, Mr. Tiangha spent a further two months in Calgary assisting to wrap up
the estate, time which Citizenship and Immigration Canada (CIC) agreed to count
towards his required work experience hours.
[4]
Mr.
Tiangha then applied for permanent residence and began searching for another
employer. This was difficult as most employers prefer to hire a female
caregiver. From February 2009 to January 2010, Mr. Tiangha drew unemployment
insurance. He briefly found a new employer in January 2010 but the job fell
through after a month. Mr. Tiangha was then unemployed again from February 2010
to October 2010.
[5]
In
early February 2010 Mr. Tiangha learned that his father was gravely ill. To
help defray the $10,000 cost of hospitalization and surgeries in the Philippines, Mr. Tiangha began working without a permit, first caring for a client and then
working as a farm labourer. His father died on October 11, 2010 and he returned
to the Philippines for two months. Before departing, he had found a new
position as a caregiver, so he was able to leave Canada having secured a
temporary residence permit and a work permit. Unfortunately, when he got back
to Canada in December 2010, his prospective employer had passed away.
[6]
Mr.
Tiangha was then without work again in December 2010. He started working without
permission again, taking jobs as a gardener and house cleaner to support
himself and to continue paying for his father’s final illness and funeral. In
August 2011, he finally landed another caregiver job for an elderly person. A
work permit was granted on November 22, 2011.
DECISION UNDER
REVIEW:
[7]
On
April 19, 2012, CIC Calgary refused Mr. Tiangha’s application for permanent
residence.
The
decision letter explains that Mr. Tiangha had met the eligibility requirements
for permanent residence as a member of the caregiver class, having worked 4,162
eligible hours by September 2010, the conclusion of the four-year period during
which he had to accumulate 3,900 hours. However, he was found to be
inadmissible to Canada under s 41 of the IRPA for having violated s 30 of the
IRPA and para 185(b) of the Immigration and Refugee Protection
Regulations,
SOR/2002-227 [IRPR] by working without authorization on multiple occasions. The
immigration officer also found that he had not provided sufficient evidence to
justify an H&C exemption under s 25(1) of the IRPA. The circumstances
leading to his inadmissibility had not been unusual and undeserved, and
refusing to grant the exemption would not result in disproportionate hardship.
[8]
The
officer assessed that Mr. Tiangha could have found authorized work if he had
tried harder and could have lived off friends and family in Canada while searching for jobs. The officer also noted that he had not provided enough
evidence of establishment in Canada despite a lengthy stay in the country, that
no children were affected, and that he had provided insufficient evidence of
disproportionate hardship if he had to leave. In addition, he had demonstrated
that he wanted to work in other fields than caregiving.
ISSUES:
[9]
The
issues raised by this application are:
- Did the Immigration Officer
err in law in finding that the applicant was inadmissible to Canada for having engaged in unauthorized work?
- Did the Immigration Officer
make an unreasonable H&C decision given the evidence?
ANALYSIS:
Standard of Review;
[10]
The
standard of review for the issues noted above has been satisfactorily
established by the jurisprudence: Dunsmuir v New Brunswick, 2008 CSC 9 [Dunsmuir]
at para 57. An administrative decision-maker’s
interpretation of its own statute is owed significant deference (Dunsmuir at para 54; Smith v Alliance
Pipeline Ltd, 2011 SCC 7 at para 28; Alberta (Information and Privacy Commissioner) v Alberta Teachers'
Association, 2011 SCC 61 at para 30). Furthermore, an immigration
officer's decision with respect to an H&C application involves questions of
mixed fact and law: Russom v Canada (MCI), 2012 FC 1311 at paras 11-13. Both issues are therefore reviewable on the
reasonableness standard. Reasonableness is concerned
with the justification, transparency and intelligibility of the decision-making
process, but also with whether the decision falls within a range of possible,
acceptable outcomes defensible in respect of the facts and law: Dunsmuir at
para 47.
Did the
Immigration Officer err in law in finding that the applicant was inadmissible
to Canada for having engaged in unauthorized work?
[11]
The
applicant argued that when he received a new work permit in November 2011, this
cured his previous inadmissibility pursuant to s 200 (3) (e) of the
IRPR. Paragraph 200 (3) (e) (ii) of the IRPR states that a foreign
national can obtain another work permit if the work was only unauthorized
because it did not comply with conditions imposed under 185 (a), (b),
or (c). The applicant had breached 185 (b) by engaging in the wrong type
of work, for the wrong type of employer, but this did not create a permanent
bar, and in fact he did subsequently obtain another work permit. The moment at
which the inadmissibility had to be determined, the applicant submitted, was
when the decision was made on permanent residence, in April 2012, and that by
that point he was no longer inadmissible.
[12]
The
respondent contended that when the applicant was given a temporary residence
permit (TRP) on December 6, 2010, there is no evidence that he advised
officials that he had contravened the conditions of his initial work permit by
engaging in unauthorized work. The TRP was thus not issued to overcome the fact
that he had engaged in unauthorized work and could not cure the applicant’s
previous inadmissibility. By extension, the new work permit could not cure his
previous inadmissibility either. No authority was cited in support of this
proposition.
[13]
There is little jurisprudence on s 200 (3) (e) (ii) of the
IRPR. Neither party was able to assist the Court with decisions which address
the question of whether a new work permit may, or may not, cure a previous
breach as of the time the application is considered. The fact that s 200 (3) (e)
(i) prevents a foreign national who has engaged in unauthorized work from
getting a new work permit until six months have elapsed indicates that the bar
is not indefinite and that a new permit may be obtained after that time period.
Further, the fact that s 200 (3) (e) (ii) provides that a new permit can
be issued if the work was only unauthorized under s 185 (b) due to being
the wrong type of work and/or for the wrong employer suggests that such
breaches are curable.
[14]
Mr. Tiangha did get a new permit, which was valid at the moment
when the officer made the decision on his application for permanent residence.
[15]
In
Ozawa v Canada (MCI), 2010 FC 444 at para 15,
this Court dealt with the legal effect of a restoration of temporary resident
status, explaining that “The Regulations provide that a restoration of one's
temporary resident status has the legal effect of curing any breach of the
length of stay requirement inherent in the original temporary resident visa.” I
find
that the issuance of a new work permit similarly cured the previous
breach and that Mr. Tiangha was admissible to Canada by the date when the
immigration officer assessed his application. The officer could therefore have
used his previous unauthorized work to found conclusions about credibility, but
could not use it to find him inadmissible.
Did the
Immigration Officer make an unreasonable H&C decision given the evidence
before her?
[16]
The
applicant submits that the Immigration Officer made numerous errors of fact in
her reasons for decision, repeatedly misinterpreted the evidence, lacked
empathy, and failed entirely to appreciate the reality of the applicant’s
situation. Her assessment of the H&C factors was therefore unreasonable. In
Damte v Canada (MCI), 2011 FC 1212 [Damte] at para 34 this Court
commented that “the decision-maker's heart, as well as analytical mind, must be
engaged.”
[17]
The
respondent argues that a section 25(1) H&C exemption is not designed to be
used as an alternate method of immigration into Canada. It is an exceptional
and discretionary remedy. The person applying for it has the onus of satisfying
the officer that his personal circumstances are such that the hardship of
obtaining a visa from outside Canada would be unusual and undeserved or
disproportionate. The Court’s comments at para 34 of Damte
were obiter and did not form part of the reasons for that decision;
furthermore, the facts in Damte are distinguishable from the present
case.
The IRPA and IRPR do not oblige an officer to express a requisite
level of empathy in response to the facts of H&C applications. The
obligation is to properly weigh and assess the evidence and make a reasonable
decision.
[18]
The
respondent proposed that the immigration officer
properly considered the applicant’s stated reasons for engaging in unauthorized
work and found that they were self-serving, conflicting, and unsubstantiated.
The officer also properly found that either the applicant’s brother, friends or
other family members would have been able to support him at no cost while he
sought authorized employment. It was up to him to maintain his status until
processing of his permanent residence application was complete.
[19]
I
find that the officer made
no attempt to appreciate the difficulties Mr. Tiangha was faced with and drew
unreasonable inferences about the options that were open to him. The record
shows that after completing all the requirements of the caregiver program and
submitting his application for permanent residence, he continually sought more
jobs as a nurse-caregiver and only turned to manual labour to pay the unexpected
and substantial expenses incurred by his father’s illness and funeral when he
was unsuccessful in this search. He worked hard at a series of low-wage
unskilled jobs which did not call for his nursing qualifications. It was not
reasonable of the officer to have speculated that the applicant could draw on
unlimited funding and free accommodation from presumed friends and relatives in
Canada instead of working, or to fail to understand that the debts resulting
from his father’s final illness did not cease to exist upon his father’s death.
[20]
Despite
the deference which is due, I find that the officer’s conclusions in this case
do not represent a possible, acceptable outcome.
[21]
The
parties were given time to propose questions for certification on the question
of mixed fact and law which arose in this matter.
[22]
The
applicant has proposed the following question:
By virtue of s 200 (3) (e) (i) and (ii) of the
Immigration and Refugee Protection Regulations, is a foreign national who is no
longer inadmissible for obtaining a work permit because of past unauthorized
work also no longer inadmissible for purposes of a permanent residence
application based on the same provisions?
[23]
The
respondent suggests that the Court certify this question:
Is an applicant’s inadmissibility arising from his
unauthorized work in Canada cured due to the fact that, subsequent to the
unauthorized work but prior to the determination of the applicant’s application
for permanent residence, a previous officer has issued a work permit to the
applicant pursuant to s 200 (3) (e) IRPR?
[24]
As
I have found that the applicant succeeds on both grounds, an answer to either
of the proposed questions would not be dispositive of an appeal. I, therefore,
decline to certify a question.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1. the
application for judicial review is allowed;
2. the
April 19, 2012 decision by Citizenship and Immigration Canada determining that
the applicant was inadmissible to Canada is set aside and the matter is
returned for redetermination by a different officer in accordance with these
reasons; and
3. no
question is certified.
“Richard G. Mosley”
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