Date: 20050708
Docket: IMM-7770-04
Citation: 2005 FC 931
Québec, Québec, July 8, 2005
Present: The Honourable Mr. Justice Blais
BETWEEN:
MARITES PACIS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of theImmigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"), of a decision of a Designated Immigration Officer (the "Officer") dated July 8, 2004, in which Ms. Marites Pacis (the "applicant") was denied her application for a work permit under the Live-In Caregiver Program ("LIC Program").
FACTS
[2] The applicant originally came to Canada on July 31, 2001, under the LIC Program. During her stay in Canada, she had received four different work permits as she had changed employers four times.
[3] Her first employment was for a period of six weeks and the applicant left stating that she was too far from her friends in Richmond Hill, and that she could not handle the three children one of which was insulin dependent. Her second employment lasted four and a half months. The applicant was let go after stating that her employer was verbally abusive, even though she never filed any claims or evidence to support that allegation.
[4] Her third employment lasted ten months and the applicant was fired due to an incident involving the employer's eldest child. The applicant refused to elaborate on this, stating simply that she was intimidated by her employer who was a police officer. Her fourth employment fell through as the person she was to care for was placed in a nursing home. She found another potential opportunity and therefore needed a new work permit.
[5] On March 29, 2004, she filed her application for a work permit under the LIC Program and was told that she would have to attend an interview. On July 6, 2004, she completed an interview with the Officer who advised the applicant on July 12, 2004, that her request for a fifth permit had been refused.
ISSUE
[6] Did the Officer commit an error of law or a patently unreasonable mistake in rejecting the applicant's fifth request for a work permit under the LIC Program?
ANALYSIS
[7] The Officer in this case refused to issue a fifth work visa as she did not believe that the applicant had a genuine intention of working as a live-in caregiver in Canada, having already applied for four previous work permits and having been fired by two of her previous employers.
[8] In regards to her first place of employment, the applicant alleged that she could not continue to work there as it was too far from her friends in Richmond Hill and that the three children, one of which is insulin dependent, were too much too handle. However, the Officer pointed out that the applicant was well aware of the fact that the employer had three children, and that one was a diabetic, well before she accepted the job. Confronted with this, the applicant could not provide any further explanation.
[9] Although the applicant contests this version of the events, paragraph 112(e) of the Immigration and Refugee Protection Regulations, SOR/2002-227, (the "Regulations") states that:
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Work permits - requirements
112. A work permit shall not be issued to a foreign national who seeks to enter Canada as a live-in caregiver unless they
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(e) have an employment contract with their future employer.
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Permis de travail : exigences
112. Le permis de travail ne peut être délivré à l'étranger qui cherche à entrer au Canada au titre de la catégorie des aides familiaux que si l'étranger se conforme aux exigences suivantes :
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e) il a conclu un contrat d'emploi avec son futur employeur.
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[10] Therefore, the applicant cannot claim that she was not aware of the fact that her employer had three children, seeing as to how before she even left her home country she had an employment contract with that family.
[11] As for the second employer, the applicant alleged that she had been verbally abused and was fired. However, no report was ever filed with Citizenship and Immigration Canada nor with the local police force. Although the applicant claims to have contacted Intercede, an independent organization set up to help domestic workers in Canada, the name of that organization was not given during the interview nor any documentation submitted to prove that claim. Nonetheless, after having personally reviewed the letter from Intercede, I find that it does not contain any mention of alleged abuse or improper conduct on behalf of the applicant's employer; it simply states that Intercede supports the applicant's fifth request for a work permit.
[12] In regards to her third job, the applicant stated that she was fired because difficulties arose between her and her employer regarding an issue with the eldest child. Asked to elaborate, the applicant refused to give further detail saying simply that she feared her employer who was a policeman. It is up to the applicant to meet the burden of receiving a fifth work permit; a refusal to give details on past events most certainly did not play in her favour.
[13] As for the fourth employer, the applicant herself stated that this offer fell through before she even started to work. The Officer believed this as true and did not take issue with the offer not working out. Rather, the Officer was concerned with the fact that the applicant had not been able to find an employer for numerous extended periods of time while in Canada.
[14] The LIC Program requires the applicant to work a minimum of 24 months out of a 36-month period. The evidence submitted indicates that she was only able to work approximately 16 months, well short of her required amount. After reviewing her work background, the Officer confronted the applicant with her inability to keep steady employment and the fact that she had been unemployed for more than half of her time in Canada. However, the answers proved to be unsatisfactory to the Officer and were not supported by any documented evidence.
[15] The applicant alleges that the section 7.1 of the "Overseas Processing Manual 14 - Guidelines for Live-in Caregivers", envisages the possibility of receiving a new work permit when a change of employers is necessary. The applicant quotes the following section:
A validated offer of employment is employer and job specific.
A change of employer will require a new validation, a new employment contract and a new work permit. Officers should treat the new validation as a new application in the queue (cost recovery fees apply).
(Exhibit B of the affidavit of Marites Pacis dated October 7th, 2004)
[16] However, the next paragraph in that same section states the reasoning behind allowing the new issuance of a work permit. Upon review, I do not find that the Officer was wrong in denying the fifth work permit to the applicant, as the applicant's situation is not the same as the goal of section 7.1:
This measure is meant to deter abuse by those employment agencies who might try to use a list of fictitious employers in order to bring a "stable" of live-in caregivers to Canada. Once in Canada, these caregivers would be in a position of having entered into a contractual agreement with an employer who does not exist or for whom they will not work. These caregivers are thus in Canada illegally and are vulnerable to exploitation by the employment agency which brought them to Canada.
[17] The applicant submits that the affidavit of the Officer should not be believed and that her own should be taken as the truthful version. However, no evidence is given to support her version of the events whereas, after having reviewed the notes in the Computer Assisted Immigration Processing System ("CAIPS Notes") and the decision of the Officer, I conclude that there is no reason for me to disbelieve the Officer's affidavit.
[18] Furthermore, upon reviewing all of the evidence before me, as well as the applicable sections of the Regulations, I do not find that an error of law was committed. I am also not convinced that the Officer made a patently unreasonable decision in determining that the applicant had failed to demonstrate that she had a genuine interest in pursuing the obligations of the LIC Program.
[19] The applicant has applied for five temporary work permits over a span of 36 months, having been employed for a cumulative total of only 16 months over that period. In addition to falling well short of her 24-month employment requirement, the applicant states in her work permit application that:
I ARRIVED IN CANADA UNDER THE LIVE-In CAREGIVER PROGRAM ON JULY 31, 2001. I WON'T BE ABLE TO COMPLETE 24 months within 3 years. So, I am prepared to start all over again under the (LCP) program and eventually be able to complete the 24 mos. w/in 3 yrs.
(See the application for a temporary work permit at page 18 of the applicant's record.)
[20] Were the applicant to be continually allowed to apply for temporary work permits, all the while renewing her LIC Program application every three years from within Canada, she would be permitted to stay in Canada as a Live-in Caregiver perpetually, without ever meeting the requirements set out for that program.
[21] No error of law was committed by the Officer in her evaluation of the background facts to this case nor in the evaluation of the credibility of the applicant. Furthermore, no patently unreasonable error was made in the denial of the applicant's fifth request for a temporary work permit. For these reasons, this application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that:
- The application for judicial review be dismissed;
- No question for certification.
"Pierre Blais" Judge
APPLICABLE LEGISLATION
Immigration and Refugee Protection Regulations (SOR/2002-227)
| 110. The live-in caregiver class is prescribed as a class of foreign nationals who may become permanent residents on the basis of the requirements of this Division.
Processing
111
111. A foreign national who seeks to enter Canada as a live-in caregiver must make an application for a work permit in accordance with Part 11 and apply for a temporary resident visa if such a visa is required by Part 9.
Work permits - requirements
112
112. A work permit shall not be issued to a foreign national who seeks to enter Canada as a live-in caregiver unless they
(a) applied for a work permit as a live-in caregiver before entering Canada;
(b) have successfully completed a course of study that is equivalent to the successful completion of secondary school in Canada;
c)have the following training or experience, in a field or occupation related to the employment for which the work permit is sought, namely,
(I) successful completion of six months of full-time training in a classroom setting, or
(ii) completion of one year of full-time paid employment, including at least six months of continuous employment with one employer, in such a field or occupation within the three years immediately before the day on which they submit an application for a work permit;
(d) have the ability to speak, read and listen to English or French at a level sufficient to communicate effectively in an unsupervised setting; and
(e) have an employment contract with their future employer.
Permanent residence
113(1)
113. (1) A foreign national becomes a member of the live-in caregiver class if
(a) they have submitted an application to remain in Canada as a permanent resident;
(b) they are a temporary resident;
c)they hold a work permit as a live-in caregiver;
(d) they entered Canada as a live-in caregiver and, for a cumulative period of at least two years within the three years immediately following their entry,
(I) resided in a private household in Canada, and
(ii) provided child care, senior home support care or care of a disabled person in that household without supervision;
(e) they are not, and none of their family members are, the subject of an enforceable removal order or an admissibility hearing under the Act or an appeal or application for judicial review arising from such a hearing;
(f) they did not enter Canada as a live-in caregiver as a result of a misrepresentation concerning their education, training or experience; and
(g) where they intend to reside in the Province of Quebec, the competent authority of that Province is of the opinion that they meet the selection criteria of the Province.
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110. La catégorie des aides familiaux est une catégorie réglementaire d'étrangers qui peuvent devenir résidents permanents, sur le fondement des exigences prévues à la présente section.
Traitement
111
111. L'étranger qui cherche à entrer au Canada à titre d'aide familial fait une demande de permis de travail conformément à la partie 11, ainsi qu'une demande de visa de résident temporaire si ce visa est requis par la partie 9.
Permis de travail : exigences
112
112. Le permis de travail ne peut être délivré à l'étranger qui cherche à entrer au Canada au titre de la catégorie des aides familiaux que si l'étranger se conforme aux exigences suivantes :
a) il a fait une demande de permis de travail à titre d'aide familial avant d'entrer au Canada;
b) il a terminé avec succès des études d'un niveau équivalent à des études secondaires terminées avec succès au Canada;
c) il a la formation ou l'expérience ci-après dans un domaine ou une catégorie d'emploi lié au travail pour lequel le permis de travail est demandé :
(I) une formation à temps plein de six mois en salle de classe, terminée avec succès,
(ii) une année d'emploi rémunéré à temps plein - don't au moins six mois d'emploi continu auprès d'un même employeur - dans ce domaine ou cette catégorie d'emploi au cours des trois années précédant la date de présentation de la demande de permis de travail;
d) il peut parler, lire et écouter l'anglais ou le français suffisamment pour communiquer de façon efficace dans une situation non supervisée;
e) il a conclu un contrat d'emploi avec son futur employeur.
Statut de résident permanent
113(1)
113. (1) L'étranger fait partie de la catégorie des aides familiaux si les exigences suivantes sont satisfaites :
a) il a fait une demande de séjour au Canada à titre de résident permanent;
b) il est résident temporaire;
c) il est titulaire d'un permis de travail à titre d'aide familial;
d) il est entré au Canada à titre d'aide familial et, au cours des trois ans suivant son entrée, il a, durant au moins deux ans :
(I) d'une part, habité dans une résidence privée au Canada,
(ii) d'autre part, fourni sans supervision, dans cette résidence, des soins à domicile à un enfant ou à une personne âgée ou handicapée;
e) ni lui ni les membres de sa famille ne font l'objet d'une mesure de renvoi exécutoire ou d'une enquête aux termes de la Loi, ni d'un appel ou d'une demande de contrôle judiciaire à la suite d'une telle enquête;
f) son entrée au Canada en qualité d'aide familial ne résulte pas de fausses déclarations portant sur ses études, sa formation ou son expérience;
g) dans le cas où l'étranger cherche à s'établir dans la province de Québec, les autorités compétentes de cette province sont d'avis qu'il répond aux critères de sélection de celle-ci.
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7770-04
STYLE OF CAUSE: MARITES PACIS and THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 30, 2005
REASONS FOR ORDER
AND ORDER BY: BLAIS J.
DATED: July 8, 2005
APPEARANCES:
Ian Wong FOR THE APPLICANT
Brad Gotkin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ian Wong FOR THE APPLICANT
Barrister & Solicitor
Toronto, Ontario
John H. Sims, Q.C FOR THE RESPONDENT
Deputy Attorney General of Canada
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