Docket:
IMM-258-11
Citation:
2012 FC 264
Toronto,
Ontario, February 28, 2012
PRESENT: The Honourable Mr.
Justice Zinn
BETWEEN:
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FE
VILLANEUVA DIONGSON
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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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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
For the reasons that follow, this application is allowed and the
decision of a Non-Immigrant Officer of the Consulate General of Canada in
Buffalo, New York (the officer), dated November 10, 2010, refusing the
applicant’s application for a work permit under the live-in caregiver program
(LCP), is set aside.
[2]
The applicant, a citizen of the Philippines, was the victim of a fraud.
In 2005, she was recruited by Ms. Fe Malab, to whom she ended up paying US$6,000
to apply under the LCP and obtain a Labour Market Opinion (LMO). When her LCP
application was approved, she met with Ms. Malab and asked about her employer
in Canada, but was told by her that she did not know who the employer would be
yet, and if the immigration asked her she should make up answers. The
applicant tried to call the employer listed on her LMO, but there was no
answer.
[3]
The applicant arrived in Canada on June 14, 2007. She traveled by taxi
to the address listed for her employer and discovered that it was Ms. Malab’s
home, and there were more than 20 other Filipino women living there. The
applicant asked Ms. Malab the following day about her employer, and Ms. Malab
told her to relax, and it was not time to start her job yet, and eventually
told her she had been ‘released on arrival’ and would need to find another
position.
[4]
The applicant states that Ms. Malab evaded all her requests to place her
with an employer as a live-in caregiver once she arrived in Canada. Instead,
she repeatedly lied to the applicant, telling her that she could obtain her
permanent residence in other ways, and work in part-time jobs Ms. Malab found
for her, such as in factories or cleaning. Ms. Malab began to charge her $300
a month to live in her house. Each time she asked for a legitimate work
placement, Ms. Malab extorted more money from her. Eventually, the applicant
refused to pay Ms. Malab any more money.
[5]
Through the Caregivers’ Action Center, the applicant eventually met with
a lawyer and immigration consultant, and learned that what Ms. Malab had been
doing, and encouraging the applicant to do, was illegal. In September 2009,
the applicant made a complaint to the Canada Border Services Agency about Ms.
Malab and others. A warrant was subsequently issued for Ms. Malab, and her
house was raided.
[6]
In November 2009, the applicant was interviewed in relation to her
application for a temporary resident permit (TRP) on the basis that she was a
victim of trafficking. That application was refused at the end of the
interview (TRP decision). The Field Operation Support System notes (FOSS
notes) for the TRP decision were relied on by the officer in this case.
[7]
The applicant found a position as a live-in caregiver with another
family. She obtained a new LMO, and applied for a work permit under the LCP. In
a decision letter dated November 10, 2010, the officer stated that the
applicant did not meet the requirements for a work permit and provided the
following reasons for the refusal:
You arrived to
Canada in June 2007 with a work permit issued to you pursuant to the Live-in
Caregiver Program. Since your initial arrival, you have continued to remain in Canada,
have applied for extensions of the work permits, changing employers on at least
one occasion. No mention or proof has been provided to indicate or explain the
reason(s) for your change/termination of employers or duration of any
employment in Canada. Insufficient evidence has been presented to satisfy me of
any efforts made to locate employment in Canada. I am not satisfied that you
are a bona fide temporary worker. You have not satisfied me that you will leave
Canada by the end of the period authorized for your stay.
The officer
recorded the following in the Computer Assisted Immigration Processing System
(CAIPS) notes, dated November 10, 2010:
THE APPLICANT
HAS FAILED TO PROVIDE EVIDENCE OF ANY LCP RELATED EMPLOY IN CDA. SHE HAS
ADMITTED IN PREVIOUS FOSS NOTES TO INTENTIONALLY MISREPESENTING [sic]
HERSELF (ENCOURAGED BY HER RECRUITER). SHE HAS ACKNOWLEDGED THAT SHE WAS AWARE
SHE NEEDED TO WORK IN CDA TO MEET THE REQUIREMENTS FOR THE WORK PERMIT7 [sic]
LIVE IN CAREGIVER PRORGRAM. SHE HAS FAILED TO SATISFY ME THAT SHE HAS BEEN A
BOANFIDE [sic] WORKER IN CDA SINCE JUN2007. I HAVE TAKEN INTO
CONSIDERATION THE TREATMENT SHE HAS DESCRIBED FROM HER RECRUITER. HOWEVER, THE
APPLICANT HAS INDICATED IN FORMAL INTERVIEW WITH ETOBICOKE THAT SHE WAS AWARE
OF THE PROGRAM REQUIREMENTS REGARDING EMPLOYMENT. SHE HAS NOT PROVIDED EVIDENCE
TO SATISFY ME THAT SHE MADE ANY EFFORTS TO FIND EMPLOYMENT ON [sic] CDA.
[8]
The applicant challenges the decision on a number of grounds; however,
in my view, it is necessary to deal only with whether the officer’s decision
was reasonable and I agree with the applicant that it was not.
[9]
In Nazir v Canada (Minister of Citizenship and Immigration), 2010
FC 553, Justice de Montigny stated at paragraph 20: “Visa officers assessing
live-in caregiver permits have a duty to take into consideration an applicant’s
explanation and to explain why they reject such explanations.” In this case,
the officer paid no more than lip-service to the applicant’s explanations for
the irregularities in her work history since arriving in Canada, namely, that
she had been a victim of a fraud.
[10]
The officer acknowledged in cross-examination that in making her
decision she relied heavily on the FOSS notes; however, I find that most of the
findings upon which the officer based her decision were made without regard to
that evidence. The officer found in her decision that: (i) there was no
explanation for the applicant’s change and termination of employers or duration
of employment in Canada; (ii) there was insufficient evidence to satisfy the
officer of any efforts she made to locate employment in Canada; and
(iii) the applicant had not proven that she was a bona fide worker in
Canada since June 2007.
[11]
The FOSS notes contain a detailed account of the applicant’s story,
including: her arrival in Canada; her discovery that she did not have the
position she was promised; her efforts to find other employment; and a list of
all her places of employment since arriving in Canada. The first two findings
listed above are directly contradicted by a review of the record.
[12]
The officer’s finding that the applicant had not proven that she was a bona
fide worker since June 2007 is especially puzzling as the applicant did not
claim to have been a bona fide worker since 2007. She explained that
the job for which she received her initial work permit turned out not to
exist. She also explained that she had been continually misled by Ms. Malab
about the legality of working outside her permit, and about the proper process
to obtain permanent residence. I can only conclude from the officer’s reasons
that she failed to consider the applicant’s explanations that were in the FOSS
notes she consulted. As a consequence, I find that the officer’s findings were
made without regard to the material before her, and the decision must be set
aside.
[13]
Neither party proposed a question for certification. There is none on
the facts of this application.
JUDGMENT
THIS COURT’S JUDGMENT is that
this application is allowed, the decision of the
Non-Immigrant Officer of the Consulate General of Canada in Buffalo, New York,
dated November 10, 2010, refusing the applicant’s application for a work permit
under the live-in caregiver program is set aside, and her application is
referred to another officer for a redetermination. No question is certified.
"Russel W. Zinn"
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