Docket: IMM-6531-14
Citation:
2015 FC 422
Montréal, Quebec, April 8,
2015
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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KATHY MAE
MARTIN
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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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JUDGMENT AND REASONS
I.
Preface
[1]
This is a case onto itself. The very serious
nature of the applicant’s employer’s child’s medical situation requires
continuous care and supervision in respect of diet and medication; that includes
assistance in administering insulin, and constant monitoring of blood sugar
levels for a severe diabetic condition; this is clearly demonstrated by
uncontradicted evidence of the existence of critical medical episodes in the
child’s past.
[2]
The relationship of mutual devotion, dedication
and affection developed over the years between the child and the applicant and
that of the employer’s family must be taken into wholesome consideration,
especially acknowledging the credibility of the evidence that demonstrates most
importantly, the applicant’s significant role in the child’s well-being.
[3]
The applicant has, as per the evidence, won the
child’s complete trust. Acknowledging the child’s adolescent age, the
relationship of confidence that has been built between the applicant and the
child allows for the preservation and maintenance of the child’s well-being, recognizing
that the fragility of the child is foremost in the applicant’s understanding.
[4]
As per the evidence, the fact that the child’s
parents own their own business and, therefore, are often absent from home was
not given adequate consideration in context, despite clear point specific indication
in letters from medical doctors outlining that the child has had medically specified
serious critical episodes due to her condition. Therefore, it appears incumbent
in this particular case that due attention and consideration be given to the
comprehensive evidence. This is to ensure that the child’s health and life is
not placed in jeopardy. Inherent circumstances warrant, due to “compelling reasons”, an exception, to be applied in
the case of the applicant, as has been shown in relevant jurisprudence outlined
below.
II.
Introduction
[5]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a decision by an Immigration Officer [Officer] dated
August 26, 2014, in which the Applicant’s application for a temporary
resident permit [TRP] pursuant to subsection 24(1) was refused.
III.
Factual Background
[6]
The Applicant is a citizen of Philippines who entered Canada on July 18, 2009, under a Live-in Caregiver Program permit. The
Applicant was authorized to remain in Canada until August 3, 2013.
[7]
The Applicant is the caregiver for her
employer’s 14-year-old insulin-dependent daughter, who suffers from Type 1 diabetes.
[8]
On May 8, 2014, the Applicant’s application
for restoration of her temporary residence status was rejected under Rule 182
of the Immigration and Refugee Protection Regulations, SOR/2002-227, on
the basis that it was submitted more than 90 days after the expiry of the
Applicant’s temporary residence status (Certified Tribunal Record, at p 71).
[9]
On or around June 23, 2014, the Applicant
filed an application for a TRP (Certified Tribunal Record, at p 84).
[10]
In support of her TRP application, the Applicant
provided the following submissions:
i.
The Applicant was late in filing an application
for renewal of the Live-in Caregiver work permit because she was waiting for
her Quebec Selection Certificate [QSC] to be issued. The Applicant did not
benefit from legal counsel and was therefore unware of the timeline for
renewing her work permit.
ii.
The best interests of her employer’s 14-year-old
child, who is diabetic, requires the Applicant’s direct care and supervision
for her diet and medication.
(Certified Tribunal Record, at pp 81-84)
IV.
Impugned Decision
[11]
In a letter dated August 26, 2014, the
Officer rejected the Applicant’s TRP application on the basis of insufficient
grounds to justify the issuance of a TRP (Certified Tribunal Record, at pp 20
and 40).
V.
Legislative Provisions
[12]
Section 24 of the IRPA provides as follows:
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Temporary
resident permit
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Permis de
séjour temporaire
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24. (1) A foreign
national who, in the opinion of an officer, is inadmissible or does not meet
the requirements of this Act becomes a temporary resident if an officer is of
the opinion that it is justified in the circumstances and issues a temporary
resident permit, which may be cancelled at any time.
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24. (1) Devient résident temporaire
l’étranger, dont l’agent estime qu’il est interdit de territoire ou ne se
conforme pas à la présente loi, à qui il délivre, s’il estime que les
circonstances le justifient, un permis de séjour temporaire — titre révocable
en tout temps.
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Exception
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Cas particulier
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(2) A foreign
national referred to in subsection (1) to whom an officer issues a temporary
resident permit outside Canada does not become a temporary resident until
they have been examined upon arrival in Canada.
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(2) L’étranger
visé au paragraphe (1) à qui l’agent délivre hors du Canada un permis de
séjour temporaire ne devient résident temporaire qu’après s’être soumis au
contrôle à son arrivée au Canada.
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Instructions of Minister
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Instructions
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(3) In applying
subsection (1), the officer shall act in accordance with any instructions
that the Minister may make.
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(3) L’agent est
tenu de se conformer aux instructions que le ministre peut donner pour
l’application du paragraphe (1).
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VI.
Issues
[13]
The Applicant submits the following issue:
Did
the Officer fetter his discretion, act without regard to the evidence, or fail
to provide sufficient reasons for denying the Applicant’s TRP?
[14]
The Court considers the determinative issue to
be whether the Officer’s decision is unreasonable or made without regard to the
evidence.
VII.
Position of the Parties
A.
Applicant’s Position
[15]
First, the Applicant argues that the Officer
unduly fettered his discretion in rendering a negative decision without regard
to the Applicant’s submissions and documentary evidence provided in support of
her TRP application.
[16]
Second, relying upon Baker v Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817 and Hawthorne v Canada
(Minister of Citizenship and Immigration), [2002] FCJ 1687, the Applicant
contends that in the exercise of his discretion, the Officer failed to consider
and evaluate the best interest of the Applicant’s employer’s child, for whom
the Applicant is a caregiver.
[17]
Moreover, the Applicant submits that flexibility
is required for caregivers, in accordance with the jurisprudence and Canada’s
international obligations such as the UN Convention on the Rights of the
Child, 1577 UNTS 3, Can TS 1992 No. 3.
[18]
Third, the Applicant submits that the Citizenship
and Immigration Canada Inland Processing Manual IP-1: Temporary Resident
Permits Operational Manual [CIC Manual] requires the Officer to consider,
among others, the following factors, which the Officer failed to examine:
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Job qualifications;
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Economic contributions;
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Protecting public health;
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The tangible and intangible benefits which may
accrue to the person concerned and to others.
[19]
Finally, the Applicant argues that the Officer’s
reasons are inadequate.
B.
Respondent’s Position
[20]
First, the Respondent submits that it was not
unreasonable for the Officer to conclude to the absence of exceptional
circumstances in the context of the Applicant’s TRP application. Moreover, the
Respondent submits that the Applicant mistakenly conflates the analysis for an
H&C application under section 25 of the IRPA, which is materially
distinguishable from an analysis under section 24.
[21]
Second, the Respondent argues that the Applicant’s
employer’s 14-year-old child’s best interest does not inescapably lead to the
conclusion that the Applicant should remain in Canada. The child is under the
care and supervision of her parents and there is no evidence to establish that
there is no possibility of alternative care arrangements or resources available
to her under the Canadian health care system. Therefore, it was not an error
for the Officer to consider, on the basis of the evidence provided, that the
interests of the child do not amount to “compelling
reasons” as contemplated under section 24 of the IRPA.
[22]
Third, the Applicant cannot seek to have the
Officer’s decision set aside on the basis of insufficient reasons. Not only has
the Applicant failed to request additional reasons from the Officer but a more
detailed written analysis was not required in the context of a TRP application.
VIII.
Analysis
A.
Standard of Review
[23]
The highly discretionary and exceptional nature
of the issuance of a TRP requires considerable deference from this Court towards
the Officer’s decision (Shabdeen v Canada (Minister of Citizenship and
Immigration), 2014 FC 303 at para 13 [Shabdeen]; Alvarez v Canada
(Minister of Citizenship and Immigration), 2011 FC 667 at para 18 [Alvarez];
Ali v Canada (Minister of Citizenship and Immigration), [2008] FCJ 985
at para 9 [Ali]).
[24]
As such, cognizant of the Applicant’s submission
that the standard applicable to the Officer’s failure to exercise his
jurisdiction is correctness, the Court finds that in accordance with the
jurisprudence, the relevant standard is that of reasonableness (Betesh v
Canada (Minister of Citizenship and Immigration), 2008 FC 1374 at para 23; Ali,
above at para 9; Shabdeen, above at para 13).
B.
Legislative and Jurisprudential Framework
[25]
Paragraph 24(1) of the IRPA provides a
discretionary exemption in issuing permits to foreign nationals who are
otherwise inadmissible or do not meet the requirements of the IRPA. This Court
has advised that such permits should therefore be issued cautiously (Farhat
v Canada (Minister of Citizenship and Immigration), 2006 FC 1275 at para 24
[Farhat]; Alvarez, above at para 16).
[26]
The language of paragraph 24(1) provides that an
immigration officer must determine whether it is “justified
in the circumstances” to issue a TRP under this provision. The
jurisprudence has interpreted “circumstances” to
mean the “relevant circumstances” (Ali,
above at para 12).
[27]
The CIC Manual contains Ministerial directions
to CIC staff in issuing a TRP under section 24 of the IRPA. Notably, paragraph
5.1 of the CIC Manual provides guidance in regard to interpreting section 24(1)
of the IRPA:
Normally, persons who do not meet the
requirements of the Immigration and Refugee Protection Act are refused
permanent resident or temporary resident visas abroad, denied entry at a port
of entry, or refused processing within Canada. However, in some cases, there
may be compelling reasons for an officer to issue a temporary resident
permit to allow a person who does not meet the requirements of the Act to enter
or remain in Canada.
[Emphasis added.]
[28]
Furthermore, paragraph 12.1 of the CIC Manual
describes a series of non-exhaustive “needs and risks
factors” which are to be considered by an officer on a case-by-case
basis in issuing a TRP under paragraph 24(1) of the IRPA (see: Farhat,
above at para 22). This Court has found that CIC Manual does not have the force
of law (Kanthasamy v Canada (Minister of Citizenship and Immigration),
2014 FCA 113 at paras 52 and 53; Farhat, above at para 28; Shabdeen,
above at paras 15 and 16; Afridi v Canada (Minister of Citizenship and
Immigration), 2014 FC 193 at para 18).
12.1 Needs assessment
An inadmissible person’s need to enter or
remain in Canada must be compelling and sufficient enough to overcome the
health or safety risks to Canadian society. The degree of need is relative to the
type of case.
The following includes points and examples
that are not exhaustive, but they illustrate the scope and spirit in which
discretion to issue a permit is to be applied.
Officers must consider:
● the factors that make the person’s presence in Canada
necessary (e.g., family ties, job qualifications, economic contribution,
temporary attendance at an event);
● the intention of the legislation (e.g., protecting
public health or the health care system).
The assessment may involve:
● the essential purpose of the person’s presence in
Canada;
● the type/class of application and pertinent family
composition, both in the home country and in Canada;
● if medical treatment is involved, whether or not the treatment
is reasonably available in Canada or elsewhere (comments on the relative
costs/accessibility may be helpful), and anticipated effectiveness of
treatment;
● the tangible or intangible benefits which may accrue to
the person concerned and to others; and
● the identity of the sponsor (in a foreign national case)
or host or employer (in a temporary resident case).
C.
Reasonableness of the Officer’s Decision
[29]
Upon review of the Officer’s Global Case
Management System [GCMS] notes, which form part of the Officer’s reasons, it is
clear that the Officer considered the following factors:
•
The Applicant entered Canada in July 2009 under
the Live-in Caregiver Program and has remained in Canada beyond the expiry date
of her temporary resident status;
•
The Applicant’s request for restoration was
denied under Rule 182 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [IRPR];
•
The Applicant did not benefit from legal counsel
and was unaware of the limitation periods for renewing her work permit;
•
The Applicant raised the best interests of her
employer’s child, who has diabetes and requires supervision for her diet and
medication;
•
The Applicant’s previous work permit advised her
that she was potentially eligible to apply for permanent residence and indicated
the website for more details;
(Officer’s
GCMS notes dated August 26, 2014, Certified Tribunal Record, at p 20).
[30]
The Court is not satisfied that the Officer’s
decision was made with regard to the evidence and applicable factors, as a
whole. As asserted in this Court’s jurisprudence, the evaluation of whether the
Applicant has a compelling need to enter or remain in Canada is at the heart of the TRP analysis (Shabdeen, above at para 23; Farhat,
above at para 22).
[31]
The serious nature of the Applicant’s employer’s
child’s medical condition, which requires continual care and supervision in
respect of diet and medication, assistance in administering insulin, and
constant monitoring of blood sugar levels, the relationship of mutual trust,
dedication and affection developed over the years between the Applicant and her
employer’s family, and the Applicant’s significant role in the child’s
well-being, including the fact that the child’s parents own their own business
and are therefore often absent from home, were not given full consideration
(Medical letters from Drs Laurent Legault and Henry Coopersmith, and letter
from Ms. Baroudi-Bedros, Certified Tribunal Record, at pp 73, 75 and 76).
[32]
These factors point to the tangible and
intangible benefits that make the Applicant’s presence in Canada necessary, and
fall within the “scope and spirit in which discretion
to issue a permit is to be applied” outlined in the CIC Manual.
[33]
As stated by this Court, the purpose of a TRP is
to “soften the sometimes harsh consequences of the
strict application of IRPA which surfaces in cases where there may be
“compelling reasons” to allow a foreign national to enter or remain in Canada despite inadmissibility or non-compliance with IRPA” (Farhat, above at
para 22). It is this Court’s view that such a “compelling
reasons” analysis cannot be reasonably undertaken without full
considerations of the above-mentioned factors.
IX.
Conclusion
[34]
In light of the foregoing, the Application is
allowed and sent back before another immigration officer for redetermination.
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