Date: 19980716
Docket: IMM-4666-96
BETWEEN:
ELSA P. PEJE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondents
REASONS FOR ORDER
McDONALD, J.A.
[1] This is an application for judicial review of a decision of an adjudicator made on March 20, 1996 issuing a departure order against the applicant. Before proceeding to the merits of counsels' arguments there were some preliminary matters. With respect to the order of Mr. Justice Jerome dated December 19, 1996, I am satisfied that his order did not intend to address the matter of judicial review and is limited to the motion for reconsideration that was argued before him. His order therefore should be interpreted as granting a stay only and not as assessing the merits of the application for judicial review. The second matter is that despite counsel for the applicant's hesitancy to proceed today, as he has not been able to contact his client, I have instructed him to proceed as solicitor of record.
[2] Having dealt with these preliminary matters I will assess the merits of the application. The relevant facts are as follows: The applicant entered Canada on December 27, 1990 as a visitor under the Foreign Domestic Movement. She applied for and received extensions of her employment under this program. Her last extension expired on March 15, 1995. In September 1994 as a result of illness, bad luck and the Minister's refusal at times to issue the applicant a work permit as well as provide her with advice, the applicant found herself forced to go on social assistance. On December 20, 1994, the applicant was reported pursuant to s. 27(2)(a) for s. 19(1)(b) of the Immigration Act as a member of an inadmissible class of persons who there are reasonable grounds to believe are or will be unable or unwilling to support themselves. The applicant was also reported on July 4, 1995 pursuant to s. 27(2)(e) for s. 26(1)(c) as a person who entered Canada as a visitor and remains in Canada after that person has ceased to be a visitor. The applicant was informed that an inquiry would be held. The applicant applied for but was denied permanent residency status under the Live-in Caregiver Program on December 22, 1994. This decision was not appealed. By letter dated February 16, 1995, the applicant, while she was still in status, was advised that her request for an employment authorization was refused by reason of her bring subject to an immigration inquiry. The inquiry started on July 4, 1995 and was adjourned four times. The purpose of the inquiry was to determine whether the applicant was a person described in ss 27(2)(a) for s. 19(1)(b) and s. 27(2)(e) of the Immigration Act. The applicant admitted during the inquiry that she was in receipt of social assistance and that she had been living in Canada continuously since the expiry of her last work authorization. Pursuant to s. 37(7) of the Act, the Adjudicator issued a departure order against the applicant. The applicant argues that the adjudicator should have considered the Minister's failure to assist her under the Domestic Program and, on this basis, declined to issue a departure order against her.
[3] Despite counsel for the applicant's very well argued and persuasive submissions, I find myself in the unfortunate position of having to deny the application. I agree with applicant's counsel that special considerations apply to individuals falling under the Domestic Program and that the applicant does not appear to have been treated fairly by the Minister. However, those considerations could not be addressed by the adjudicator as the adjudicator is limited to determining whether the applicant is a member of an inadmissible class of persons pursuant to s. 27(2)(a) for s. 19(1)(b) (who there are reasonable grounds to believe are or will be unable or unwilling to support themselves) and whether pursuant to s. 27(2)(e) for s. 26(1)(c) of the Act the applicant is a person who entered Canada as a visitor and remains in Canada after that person has ceased to be a visitor. Just as an adjudicator cannot consider humanitarian and compassionate grounds during an inquiry, an adjudicator cannot consider whether the Minister has met its obligation to the applicant under the Domestic Program. As stated by the Federal Court of Appeal in Green v. Minister of Employment and Immigration [1984] 1 F.C. 441 at 445:
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The scheme of the Immigration Act, 1976 & Regulations [cite omitted] makes it clear, in my view, that the adjudicator is required to proceed with the inquiry as expeditiously as it possible under the circumstances of each individual case. Likewise his power to adjourn an inquiry is restricted to adjournments "for the purpose of ensuring a full and proper inquiry". The issues to be determined at the inquiry by this Adjudicator is whether this applicant was a member of the inadmissible classes as described in paragraphs 27(2)(b) and (e) of the Immigration Act, 1976. The compassionate or humanitarian considerations which are relevant to a subsection 115(2) application were completely outside the scope of the inquiry being conducted by this Adjudicator. |
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[4] Based on the above, it is clear that an adjudicator does not have the authority during the inquiry to determine whether the provisions of the Domestic Program have been met. The appropriate forum to consider this issue is on appeal from a decision to deny permanent residency status to the applicant under the Live-in Caregiver Program. Thus, the decision to refuse the applicant permanent residency status dated December 22, 1994 should have been appealed and the applicant's concerns brought forward there. The applicant cannot at this stage attack a decision that should have been appealed as the Adjudicator is not empowered to decide on the equities of this particular component of her case.
[5] While I sympathize with applicant's counsel who has valiantly argued his client's case and was not at the time of the denial of the applicant's application for permanent residency solicitor of record, there is nothing I can do to assist him in this matter. The fact remains that had the applicant wished to raise these concerns she should have done so by appealing the decision to deny her permanent residency status.
[6] The application for judicial review is dismissed.
"F.J. McDonald"
J.A.
Toronto, Ontario
July 16, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4666-96
| STYLE OF CAUSE: ELSA P. PEJE |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JULY 14, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McDONALD, J.A.
DATED: JULY 16, 1998
APPEARANCES:
Mr. Osborne G. Barwell
For the Applicant
Ms. Diane Dagenais
For the Respondent
SOLICITORS OF RECORD:
Ferguson, Barnwell
Barristers & Solicitors
502 - 347 Bay Street
Toronto, Ontario
M5H 2R7
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980716
Docket: IMM-4666-96
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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