Docket: IMM-2949-15
Citation:
2016 FC 37
Vancouver, British Columbia, January 12, 2016
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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ARTHUR EISMA,
LORENZO
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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.
Background
[1]
This is an application for judicial review by
the Applicant 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 June 2, 2015, wherein the Officer held that the
Applicant was not a victim of human trafficking; and, furthermore, rejected the
Applicant’s application for a Temporary Resident Permit and open Work Permit as
the Applicant was, at the time of the decision, admissible to Canada.
[2]
The Applicant, Arthur Jr. Eisma Lorenzo (age
38), is a citizen of the Philippines.
[3]
The Applicant alleges that he first arrived in
Canada on June 23, 2011, as a temporary foreign worker, for a grocery
store in Labrador City (Buy N Fly Food Limited). He worked at the store as a
grocery/produce clerk until the expiry of his one year contract, on
June 22, 2012. While he worked at the store, the Applicant was offered, in
February 2012, a position as a waiter by Miriam and Jeff Staples at one of their
restaurants. Due to the Applicant’s status in Canada, the Applicant was in need
of a work permit in order to be employed by the Staples. In order to obtain the
required documents, the Applicant met with the lawyer who represented the
Staples. Only after the Applicant agreed to pay for the fees and disbursement
of the lawyer was the Labour Market Opinion assessment [LMO] delivered to the
Applicant.
[4]
On June 23, 2012, the Applicant moved to a
house designated by the Staples for the residence of their workers; and, after
receiving his work permit as a waiter – valid from June 28, 2012 to
June 27, 2013, the Applicant started to work for the Staples on
June 28, 2012.
[5]
The Applicant alleges that although his LMO, and
subsequent work permit, were only for the purpose of his employment in the
restaurant, Jungle Jim’s, the Applicant was told to work at another restaurant
owned by the Staples: Greco Pizza.
[6]
While the Applicant was employed by the Staples,
he alleges that he was a victim of human trafficking: he lived with approximately
twenty-six co-workers, at any one time, in a house with five bedrooms and two
bathrooms; he did not have a regular working schedule; overtime was not always
paid; threats of deportation were made when employees would complain; there was
a lack of privacy as the Staples would show-up unannounced at the residence for
employees; and, they would require employees to go to work; and, employees
would be required to take on additional responsibilities without additional
compensation.
[7]
On May 31, 2013, the Applicant’s employment
with Jungle Jim’s was terminated; and, on June 2, 2013, his employment
with Jungle Jim’s officially ended.
[8]
Prior to his termination, the Applicant had made
various complaints to different entities about his living and working conditions.
In October 2012, the Applicant advised the Newfoundland and Labrador Labour
Standards office of the difficult housing and working conditions. In November
2012, the Applicant, after attending a labour standard seminar, complained to
an individual about the housing and working conditions; and, subsequently, a
meeting was organized by the Staples with staff members. In February 2013, the
Applicant called Citizenship and Immigration Canada and filed a written joint
complaint with other staff members in March 2013.
[9]
Following his termination at Jungle Jim’s, the
Applicant worked at a Canadian Tire store in Labrador City from July 12,
2013 to July 23, 2013. The Applicant had obtained a nomination under the
Newfoundland and Labrador Provincial Nominee program for this employment.
[10]
Upon receiving a work permit valid from
October 16, 2013 to October 16, 2015, for the occupation of waiter,
the Applicant worked approximately five and a half months for a company, named
L.H. Service Center Ltd., until his employment was terminated on April 2,
2014.
[11]
On April 16, 2014, the Applicant moved to
British Columbia. Upon arrival in British Columbia, the Applicant tried,
unsuccessfully, to find an employer who would apply for a Labour Market Impact
Assessment, in order to hire him. On April 14, 2015, the Applicant filed
an application for a Temporary Resident Permit for Victims of Trafficking in
Persons [VTIP] (against Jungle Jim’s); as well as a Temporary Resident Permit
for non-VTIP and an open Work Permit.
[12]
In support of his VTIP application, the
Applicant submitted five reasons:
1.
The Applicant was participating in the
investigation and prosecution of his former employer Jeff Staples, for living
conditions, unpaid overtime, lack of being given regular hours, etc.;
2.
The Applicant is financially supporting his
family in the Philippines;
3.
The Applicant has wide range experience working
in hotel, restaurant management and cruise ship industries. The Applicant
contributes to the Canadian economy;
4.
The Applicant would have difficulties re-establishing
in the Philippines given that he left his home and family to come to Canada. He
would have no way of supporting himself financially; and,
5.
The Applicant’s mental health and well-being
warrants that he stays in Canada.
II.
Decision under Review
[13]
Prior to rendering her decision, the Officer
interviewed the Applicant on May 14, 2015, mainly to establish the facts
and assess the credibility of the Applicant.
[14]
In a decision dated June 2, 2015, the
Officer rejected the Applicant’s application finding that the Applicant was not
a victim of human trafficking and that he was ineligible for a non-VTIP
Temporary Resident Permit and an open Work Permit.
[15]
With regards to the non-VTIP Temporary Resident
Permit request, the Officer rejected the Applicant’s Temporary Resident Permit
request, pursuant to subsections 24(1) and 24(3) of the IRPA, as the Officer
was not satisfied that there were sufficient compelling grounds for the
issuance of such permit:
Mr. Lorenzo has also requested consideration
for a non-VTIP TRP, under IRPA A24. At this time Mr. Lorenzo is not
inadmissible. A TRP under A24 has also been considered and I’m not satisfied
there are sufficient compelling reasons for the issuance of a TRP. Mr. Lorenzo
has now had close to four years in Canada as a temporary resident and has
status up to October 16, 2015. Mr. Lorenzo has no family members in Canada and
there are no extenuating circumstances that require him to continue to remain
in Canada. Over the past year, he has not been successful in finding employment
in Canada. Mr. Lorenzo does have family in his home country, Philippines, where
his mother and sister live.
(Officer’s Decision, Tribunal Record, p 8)
[16]
Finally, regarding the VTIP Temporary Resident
Permit, the Officer stated the criteria to be considered, as directing the
Ministerial Instructions, during the preliminary assessment to determine
whether an individual was a victim of human trafficking:
•
The recruitment of the individual was fraudulent
or coerced and for the purposes (actual or intended) of exploitation;
•
The individual was coerced into employment or
other activity;
•
The conditions of employment or any other
activity were exploitative; or,
•
The individual’s freedom was restricted.
(Officer’s Decision, Tribunal Record, p 5)
[17]
The Officer assessed the five reasons submitted
by the Applicant and rejected them. As a result, the Officer held that there were
insufficient indicators to clearly establish, at the time of the decision being
rendered, that the Applicant was a victim of human trafficking.
[18]
The first reason (participation by the
Applicant in the investigation and prosecution) was rejected as no charges; as
yet, had been laid under the IRPA. The second (supports his family in the
Philippines), third (contribution to the Canadian economy), and fourth (re-establishment
and limited financial opportunities in the Philippines) reasons are economic in
nature. The Officer held that the Applicant did not demonstrate how he
supported his family in the Philippines; furthermore, the Applicant had saved a
substantial amount of money considering that he had worked in low-skill jobs.
Moreover, the Applicant was able to support himself financially although he was
unemployed for approximately one year and two months when the decision was
rendered. The fifth reason (mental health and well-being), the Officer held
that two years had elapsed since the alleged mistreatment occurred. Thus, the
Applicant could have attended to treatment, should he have elected to require
such, and, thus, recover from his alleged mental health problems. The Officer
also noted that the Applicant worked for two different employers after his work
experience at Jungle Jim’s; and, he has participated in a number of
volunteering opportunities since his move to British Columbia. Consequently,
his application for Temporary Resident Permit as a VTIP was rejected.
III.
Issues
[19]
The Applicant acknowledged in his Applicant’s
reply memorandum that he was not eligible for a non-VTIP Temporary Resident
Permit, consequently, the Court considers the following to be the central
issue:
Is the Officer’s
decision to reject the Applicant’s application for a Temporary Resident Permit
as a VTIP reasonable?
IV.
Position of the Parties
[20]
The Applicant submits that the Officer’s
decision was unreasonable as she did not properly conduct an analysis of
whether the Applicant is a VTIP; that is, there are insufficient reasons in her
decision that would indicate that the Officer did in fact take into
consideration factors enumerated in the Ministerial Instructions to determine
whether the Applicant is a VTIP. As a result, the decision is unreasonable as
the Officer failed to conduct a proper analysis, as required by the IRPA and
the Ministerial Instructions. Secondly, the Officer’s decision is unreasonable
as she erred by omitting to consider all the relevant evidence or she
misapprehended the evidence.
[21]
Conversely, the Respondent submits that the
Officer’s decision is reasonable as the Applicant was not eligible for any type
of the Temporary Resident Permit sought by the Applicant (pursuant to
subsection 24(1) of the IRPA) as the Applicant was not inadmissible.
Furthermore, since the Applicant does not have a Temporary Resident Permit, he
is not eligible for an open Work Permit. Alternatively, the Respondent submits
that there was no compelling reason to issue a Temporary Resident Permit as a
VTIP; and, the Officer’s assessment as to whether the Applicant was or was not
in fact a VTIP was reasonable. Moreover, the issuance of a non-VTIP Temporary
Resident Permit would serve no purpose as the Applicant, at the time of the
Officer’s decision being rendered, already had temporary resident status.
V.
Standard of Review
[22]
The assessment by an immigration officer of an
applicant’s eligibility to a Temporary Resident Permit, pursuant to subsection
24(1) of the IRPA, is a highly discretionary decision attracting the standard
of review of reasonableness (Alvarez v Canada (Minister of Citizenship and
Immigration), 2011 FC 667 at para 18; Evans v Canada (Minister of
Citizenship and Immigration), 2015 FC 259 at para 26 [Evans]).
VI.
Analysis
[23]
The granting of a Temporary Resident Permit
pursuant to subsection 24(1) of the IRPA is highly discretionary and
exceptional in nature (Dhaliwal v Canada (Minister of Citizenship and
Immigration), 2015 FC 762 at para 32) as its purpose is to allow a foreign
national to enter or remain in Canada despite inadmissibility or non-compliance
with IRPA:
[22] The objective of section 24 of
IRPA 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. Basically, the TRPs allow officers
to respond to exceptional circumstances while meeting Canada's social,
humanitarian, and economic commitments. (Immigration Manual, c. OP 20, section
2; Exhibit "B" of Affidavit of Alexander Lukie; Canada (Minister
of Manpower and Immigration) v. Hardayal, [1978] 1 S.C.R. 470 (QL).)
(Farhat v Canada (Minister of Citizenship
and Immigration), 2006 FC 1275 at para 22)
[24]
The Respondent’s main argument is that the
Officer could not grant the Applicant the sought Temporary Resident Permit as a
VTIP as the Applicant, at the moment of the decision rendered by the Officer,
was not inadmissible to Canada. Conversely, the Applicant relies on a note in
the Ministerial Instructions for Temporary Resident Permits (TRPs):
Consideration specific to victims of human trafficking, to state that an
Officer may grant a Temporary Resident Permit to a VTIP even if the applicant
is not inadmissible:
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Note: If
the victim of human trafficking has existing immigration status through
another program, officers may consider not issuing a TRP until the current
status has lapsed. However, the client must still be interviewed, and
details reported to OMC.
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Note : Si la victime de la traite de personnes a déjà un statut au
regard de l’immigration grâce à un autre programme, l’agent peut envisager de
ne pas lui délivrer de PST jusqu’à ce que son statut actuel soit expiré. Cependant,
une entrevue s’impose tout de même, dont les conclusions seront transmises à
la DGGOC.
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(Affidavit of Felicia Cheng, Ministerial
Instructions, p 12)
[25]
To read the Ministerial Instructions as being
legally binding and giving powers to the Officer that the IRPA did not intend,
as suggested by the Applicant, would be in patent contradiction with the
well-established principle that the Ministerial Instructions are not law (Agraira
v Canada (Public Safety and Emergency Preparedness), [2013] 2 S.C.R. 559, 2013
SCC 36 at para 85; Kanthasamy v Canada (Citizenship and Immigration),
2015 SCC 61 at para 32 [Kanthasamy]). Ministerial Instructions are “useful in indicating what constitutes a reasonable
interpretation of a given provision of the Immigration and Refugee
Protection Act: Agraira, at para 85” (Kanthasamy,
above at para 32).
[26]
The note in the Ministerial Instructions must be
read as a reasonable interpretation of subsection 24(1) of the IRPA and not as
giving an additional mandate to officers in their assessment of an application
under that provision. The Court reads the note as stating that an officer does
not have to automatically reject a Temporary Resident Permit application to
someone who is an alleged victim of human trafficking because the applicant is
admissible. Rather, an officer may assess the application, and, if the officer
finds that the applicant is in fact a VTIP, the officer may hold the issuance
of the Temporary Resident Permit as a VTIP until the applicant becomes
inadmissible.
[27]
This is exactly what the Officer did. She
decided to examine the Applicant’s Temporary Resident Permit as that of a VTIP
application even though the Applicant was not at the time inadmissible.
[28]
Having established that the Officer could assess
the Applicant’s VTIP application, the Court must now determine whether the
Officer’s decision was reasonable. The Applicant submits that the Officer’s
decision was unreasonable as, according to the Applicant, she did not properly
undertake an assessment of whether the Applicant is a VTIP; and, the Officer
failed to consider all relevant evidence and misapprehended evidence in denying
the application.
[29]
The Court disagrees. The Officer’s decision is
reasonable. In her decision, the Officer enumerated the criteria to be used in
the preliminary assessment to guide an officer in deciding whether an applicant
is a VTIP. Although, the Officer in her decision did not perform a step-by step
analysis of these factors, preferring to perform a step-by-step analysis of the
five reasons submitted by the Applicant for his Temporary Resident Permit as a
VTIP, it is clear from her decision that the Officer did in fact take the
criteria in consideration and incorporated them in her assessment.
[30]
The Applicant is mainly arguing that the Officer
did not give sufficient weight to his evidence. Having found, after a careful
review of the evidence submitted by the Applicant, that the Officer did in fact
take into consideration the whole of the evidence, the Court finds that the
Officer’s decision is reasonable. It is not the role of this Court to reweigh
the evidence before the Officer to substitute its own view for a preferable
outcome in a Temporary Resident Permit application (Evans, above at para
27).
VII.
Conclusion
[31]
Consequently, the application for judicial
review is dismissed.
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