Docket: IMM-1043-17
Citation:
2017 FC 1060
Ottawa, Ontario, November 22, 2017
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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LUCRECIA GARCIA
BALAREZO
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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
[1]
The Applicant, Lucrecia Garcia Balarezo, is a 60
year old citizen of Peru who arrived in Canada in 2009 as an international
student to take English courses so that she could acquire the language level
required to apply for a work permit under the Live-In Caregiver Program [LCP].
Since her arrival, she has been issued a series of study and work permits, the
last of which permitted her to work as a caregiver until May 5, 2016. The
Applicant’s first application for a permanent resident visa as a member of the
live-in caregiver class was refused in a letter from Immigration, Refugees, and
Citizenship Canada [IRCC] dated July 7, 2016. After this refusal, the Applicant
again applied for a permanent resident visa under the same class but an
Immigration Officer refused this second application in a letter dated February
21, 2017, on the basis that she had not, contrary to paragraph 112(b) of the Immigration
and Refugee Protection Regulations, SOR/2002-227, as amended [IRPR],
applied for a work permit as a live-in caregiver before entering Canada, and
was not a member of the live-in caregiver class under paragraph 113(1)(d) of
the IRPR since she had not entered Canada as a live-in caregiver. The
Applicant has now applied under subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial
review of the Officer’s decision.
I.
Background
[2]
While the Applicant was studying, her personal
and educational expenses as well as her room and board were provided by Jose
Alberto Castillo Balarezo and Rita Roxana Villanueva Meza, a married couple
with two young children. Upon completion of the Applicant’s studies, Mr.
Castillo obtained a positive labour market opinion [LMO] dated March 26, 2012,
to employ the Applicant as a live-in caregiver under NOC code and title “6474 - Live-in caregiver.” Consequently, the
Applicant applied for a work permit online from within Canada on April 22,
2012, stating in her application that she intended to work as a live-in
caregiver. This first work permit was issued on May 4, 2012, and extended for a
period of three years until May 4, 2015, by the issuance of another work permit
on October 22, 2012. These permits were issued for the NOC code 6474-000
occupation of babysitters, nannies, and parent’s helpers, although this code
did not appear on the work permits. Each of these permits referenced the LMO by
its number.
[3]
The Applicant’s first work permit was mailed to
her address in Toronto, despite her expectation that she would be required to
leave Canada to be examined for admissibility under the LCP. The first work
permit issued on May 4, 2012, stated that the Applicant had to undergo an
immigration medical examination within 90 days and that the medical forms had
been sent separately. The Applicant subsequently received instructions from
IRCC to attend an authorized physician in Toronto for a medical examination and
she complied with these instructions. According to the Applicant, she
specifically inquired about exiting Canada for examination as a live-in caregiver
and had obtained an American visa in order to do so.
[4]
In April 2015, the Applicant made another online
application for a work permit. A third work permit was issued on June 22, 2015.
This third work permit was valid until May 5, 2016, and stated the Applicant’s
occupation as being that of “caregiver” under
Case Type 57. The Remarks section of the permit noted “LCP,
same employer” and “LMO #7870215” and “eligible to apply for permanent residence after completing
employment requirements.”
[5]
The Respondent has filed an affidavit of the
immigration officer, Wendy Cannan, who refused the Applicant’s first
application for a permanent resident visa. According to Ms. Cannan, the officer
who issued the third work permit on June 22, 2015, ought not to have issued it.
Ms. Cannan says in her Affidavit that the Applicant “was
not eligible for a work permit under the LCP because she did not apply for an
LCP work permit before entering Canada in accordance with subsection 112(a) of
the IRPR.” Ms. Cannan also states that the LCP was terminated in
November 2014 and the live-in caregiver classification, NOC code 6474-200,
discontinued. Ms. Cannan further states that the Case Type 57 refers to a work
permit issued under the LCP.
[6]
The Applicant first applied for permanent
residence as a member of the live-in caregiver class in April 2016. That
application was refused in July 2016 on the grounds that the Applicant’s
initial work permit had not been issued under the LCP and the Applicant was
never assessed under the LCP criteria. Although the Applicant requested
reconsideration of the refusal of her first application for permanent
residence, a second officer maintained the refusal. Accordingly, the Applicant
made a second application for a permanent residence visa under the live-in caregiver
class. IRCC received this second application on August 18, 2016.
II.
Decision
[7]
In a letter dated October 11, 2016, IRCC
informed the Applicant that there was no indication that she had been examined
prior to entering Canada for the LCP or that she had entered Canada as a
live-in caregiver. This letter stated that if the Applicant wished to make
submissions on the matter, she had 60 days to do so. The Applicant’s counsel
provided submissions in a letter dated December 7, 2016. These submissions
summarized why it was reasonable for the Applicant to expect that, after she
completed her employment requirement, she would be eligible to apply in Canada
for permanent residency under the LCP, and also stated it would be against her
legitimate expectations and procedural fairness to reject the application. The
Applicant’s counsel submitted that, among other things:
…a final decision rejecting this Application
will have a drastic effect on Lucrecia’s expectations and quality of life. She
would have to immediately return to Peru without a job and attempt to reapply
for permanent residency under another program with different requirements from
the LCP. Applying to the permanent residency under the new Caregiver Program
will cause significant hardship to Lucrecia considering her level of English,
age and level of education. …
Additionally, Lucrecia has become an
integral and valuable part of her employers’ family, to which she is attached
as her own…
[8]
Included in the Applicant’s submissions was a
letter signed by Mr. Castillo and Ms. Villanueva, stating that the Applicant:
…has helped us look after our two daughters,
Camila and Micaela, with love and kindness.
…she takes cares [sic] of our
daughters while we are at work with love, kindness, patience, and good ethics.
We see our children happy and secure when they spend time with her.
…our daughters see Lucrecia as a member of
our nuclear family. Not having her with us would certainly and seriously affect
our daughters’ emotional well-being. She has a warm and very close relationship
with our children; seeing her departing from their nuclear environment would be
an extremely sad and a stressful experience.
[9]
Also included in the submissions of December 7,
2016, were several court decisions, notably this Court’s decision in Jacob v
Canada (Citizenship and Immigration), 2012 FC 1382, 423 FTR 1 [Jacob],
a case where the applicant sought an exemption on humanitarian and
compassionate grounds from the requirement that he had to have entered Canada
as a live-in caregiver.
[10]
The Applicant’s counsel provided additional
submissions in a letter dated January 25, 2017, including documents to evidence
that the Applicant underwent medical examinations in Canada as instructed by
IRCC. These submissions included a copy of the Applicant’s letter submitted
with her application to extend her work permit in April 2015, in which she
asked for confirmation whether she was required to undergo medical examinations
again in order to extend her work permit.
[11]
In a letter dated February 8, 2017, an
immigration officer refused the Applicant’s second application for permanent
residence as a member of the live-in caregiver class on the grounds she had not
applied for a work permit as a live-in caregiver before entering Canada, and
that she was not a member of the live-in caregiver class since she had not
entered Canada as a live-in caregiver. Although this refusal was reconsidered
by another officer following IRCC’s receipt of the Applicant’s January 25
submissions, the refusal was maintained in a further letter to the Applicant
dated February 21, 2017.
[12]
In the Global Case Management System [GCMS]
notes, the officer who issued the letter of February 8, 2017, noted that the
Applicant had undergone a medical examination and had provided a labour market
opinion. This officer also acknowledged in the GCMS notes a letter from Mr.
Castillo and Ms. Villanueva dated September 3, 2009, which the Applicant had
presented when she first entered Canada on her study permit; the officer noted
this letter states that “the sole purpose of Lucrecia’s
trip is to study English full time so that she may pass the necessary test to
apply for a caregiver job with us in the future” and that they “also understand that before the expiration of her study
visa, Lucrecia must leave Canada.”
[13]
The Officer who reconsidered the refusal stated
in the letter dated February 21, 2017, that the Applicant’s application had
been “considered on its substantive merits.” In
the GCMS notes, the Officer noted the Applicant’s submission that: “Applying to the permanent residency under the new Caregiver
Program will cause significant hardship to Lucrecia considering her level of
English, age and level of education.” The Officer then stated in the
GCMS notes: “The other submissions cite court cases
with h&c but they do not appear to be asking for h&c consideration. As
no new evidence provided that client was examined under the live-in caregiver
program prior to entering Canada, refusal decision upheld.”
III.
Issues
[14]
Although the Applicant’s submissions raise
several issues, the one issue which is dispositive of this application for
judicial review is whether it was reasonable for the Officer not to consider
the humanitarian and compassionate [H&C] factors raised by the Applicant’s
second application for permanent residence as a member of the live-in caregiver
class.
IV.
Analysis
A.
Standard of Review
[15]
A visa officer’s decision as to whether to grant
permanent residence through the LCP is a question of mixed fact and law
reviewable on the standard of reasonableness (Jacob at para 30; also see
Palogan v Canada (Citizenship and Immigration), 2013 FC 889 at para 9,
232 ACWS (3d) 1057).
[16]
Under the reasonableness standard, the Court is
tasked with reviewing a decision for “the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190. Those criteria are met if “the
reasons allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes”: Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16,
[2011] 3 S.C.R. 708.
B.
Was it reasonable for the Officer not to
consider the H&C factors raised by the Applicant’s second application for
permanent residence as a member of the live-in caregiver class?
[17]
The Applicant maintains that the Officer failed
to consider H&C factors in view of the unusual, undeserved or
disproportionate hardship which would be caused to the Applicant if forced to
return to Peru to re-apply for permanent residency under the new caregiver
program. According to the Applicant, a return to Peru at age 60 after having
been out of the country since 2009 and without any work prospects would have a
drastic impact on her quality of life. Moreover, the Applicant says her removal
from Canada would have a significant impact on the Castillo-Villanueva family
because the family has come to rely on her to care for the children. The
Applicant notes that Mr. Castillo, Ms. Villanueva, and their two daughters
consider her as a part of the family and an “aunt”
to the children, and that she has also been involved in volunteer activities
through her church and has contributed to the Canadian economy through Canada
Pension Plan deductions from her salary. In the Applicant’s view, she would not
likely qualify under the new caregiver program or the express entry program as
a skilled worker given her age, language skills, and educational background.
[18]
The Applicant points to section 5.27 of the
Inland Processing Manual, IP 5, Immigrant Applications in Canada made on
Humanitarian or Compassionate Grounds, which provides that an officer “may use discretion to consider, on their own initiative,
whether an exemption on H&C grounds would be appropriate.” According
to the Applicant, this Court, in cases such as Brar v Canada (Citizenship
and Immigration), 2011 FC 691 at para 58, 391 FTR 192; Canada
(Citizenship and Immigration) v Mora, 2013 FC 332 at paras 36-37, 430 FTR
90 [Mora]; Nascimento et el v Canada (Citizenship and Immigration),
2012 FC 1424 at paras 17-20, 422 FTR 147, has interpreted section 5.27 as
giving rise to a duty to consider H&C factors when the facts or submissions
imply a request to consider such factors.
[19]
The Respondent says the Applicant’s reliance on Jacob
is misplaced. Although the applicant in Jacob did not qualify for
permanent residency under the LCP since he had not entered Canada as a live-in
caregiver, Mr. Jacob, unlike the Applicant in this case, had made an explicit
request for an exemption from the statutory requirements on H&C grounds.
According to the Respondent, in the absence of an explicit request under
subsection 25(1) of the IRPA for an exemption from the statutory
requirements on H&C grounds, there is no obligation for an officer to
consider such grounds. Moreover, the Respondent says, in view of Kumari v
Canada (Minister of Citizenship and Immigration), 2003 FC 1424 at para 9,
127 ACWS (3d) 748, an implicit request for H&C consideration does not need
to be considered.
[20]
It is true that the Applicant did not explicitly
request consideration of her application for permanent residence under
subsection 25(1) of the IRPA. It is also true, as the Respondent points
out, that, in the absence of an explicit or implicit request under subsection
25(1) of the IRPA for an exemption from the statutory requirements on
H&C grounds, there is no obligation for an officer to consider such
grounds. There is, however, an exception in this regard. As the Court stated in
Mora:
[36] In Kumari v Canada (Minister of
Citizenship and Immigration), 2003 FC 1424 at para 9, Justice O’Reilly
explained the issue as follows:
9 Finally, the applicants
submit that the officer should have considered humanitarian and compassionate
factors in their favour. However, in the absence of an explicit request, the
officer was under no obligation to consider the applicants’ case on
humanitarian and compassionate grounds: Chen v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 871 (QL) (T.D.); Chen v.
Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 275
(QL) (T.D.). In his interview with the visa officer, Mr. Chand described
circumstances that could have formed the basis of humanitarian and
compassionate consideration. The applicants suggest that this amounted to an
implicit request to which the officer was bound to respond. In my view, the
officer was not obliged to respond to an implicit request.
[37] There is an exception to this
rule, however. Section 5.27 of the Inland Processing Manual 5 [IP 5] states
that an officer:
“ […] may use discretion to consider,
on their own initiative, whether an exemption on H&C grounds would be
appropriate.
When the applicant does not directly
request an exemption, but facts in the application suggest that they are
requesting an exemption for the inadmissibility, officers should treat the
application as if the exemption has been requested.” [Emphasis added in the
original]
[38] At paragraph 58 of Brar v
Canada (Minister of Citizenship and Immigration) 2011 FC 691, Justice
Russell interpreted section 5.27 to mean that there is a duty to consider
H&C factors when the facts or submissions imply that they are being asked
to be considered.
[21]
In this case, the Officer stated in the GCMS
notes, after referencing the Applicant’s submission that applying for permanent
residence under the new caregiver program would cause her significant hardship,
that the “other submissions cite court cases with
h&c but they do not appear to be asking for h&c consideration.”
In my view, in the circumstances of this case the Officer should have
considered the H&C factors because the facts and the Applicant’s
submissions in response to the procedural fairness letter raised such factors.
In her counsel’s submissions dated December 7, 2016, the Applicant requested
that IRCC consider her “specific circumstances”
and the letter from Mr. Castillo and Ms. Villanueva raised concerns about their
daughters’ “emotional well-being” if the
Applicant was compelled to leave the family. The Applicant’s submissions were
such that they prompted the Officer to query in the GCMS notes whether the
Applicant was requesting H&C consideration in view of her circumstances,
and with this in mind it was not reasonable for the Officer then not to
consider the H&C factors raised by the Applicant’s second application for permanent
residence.
[22]
Moreover, it appears the Officer either
misapprehended or may not have fully considered the court decisions submitted
by the Applicant, notably the decision in Jacob, a case which was
factually similar to the Applicant’s circumstances. Although the applicant in Jacob
had made an explicit request for an exemption from the requirement that he had
to have entered Canada as a live-in-caregiver, the Officer here appears to have
overlooked or disregarded Justice Lemieux’s comments:
[33] …What the applicant was seeking
was an exemption from the requirement he had to have entered Canada as a
live-in-caregiver. He entered Canada legally under a student visa but owing to
circumstances beyond his control the institution which he attended closed its
doors. He then applied for authorization as a live-in-caregiver and was so
authorized. He fulfilled his obligations under the IRPR and was advised
he met the requirements for permanent residence. In short, the Officer erred
in processing Mr. Jacob’s application as if it was a simple exemption request
from having to apply for permanent residency to Canada from abroad. He was
applying for permanent residency in Canada because that is what he was entitled
to as a live-in-caregiver which he was but for having entered in Canada
legally but as a student. [Emphasis in original]
[23]
In short, in the circumstances of this case, it
was not reasonable for the Officer to conclude that the Applicant was not
requesting an H&C exemption and, consequently, not consider or address the
H&C factors raised by the Applicant’s second application for permanent
residence as a member of the live-in caregiver class. The Applicant’s second
application should have been assessed on the basis of the H&C factors it
presented and not merely considered “on its substantive
merits.”
V.
Conclusion
[24]
The Applicant’s application for judicial review
is, therefore, allowed. The Officer’s decision is not reasonable and,
consequently, it is set aside. The matter is returned for reconsideration by a
different immigration officer in accordance with these reasons for judgment. No
question of general importance is certified.
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