Date: 20081021
Docket: IMM-1363-08
Citation: 2008
FC 1184
Ottawa, Ontario, October 21, 2008
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
TESSIE
CAINHOG CAGAMPANG
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under section 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) of the exclusion
order issued by Randy Firlotte, a delegate of the Minister of Citizenship and
Immigration (the Minister’s delegate) on March 9, 2008.
[2]
The
applicant, Tessie Cainhog Cagampang, is a citizen of the Philippines. On March 2, 2008, she
arrived in Canada seeking entry as a temporary
resident to work under the Live-In Caregiver Program. During the examination at
the first level of immigration, the Canada Border Services Agency (CBSA)
officer who examined the applicant identified concerns about the validity of her
employment offer. Thus, the applicant’s examination was furthered until March
5, 2008 so that clarifications and additional information could be obtained. Consequently,
the applicant’s prospective employer, Ms. Lorraine Lowe, finally confessed to
the CBSA officer not being willing, at that time, to employ the applicant. As a
result, the CBSA officer prepared a report on inadmissibility pursuant to
section 44 of the Act, indicating that the applicant was inadmissible to Canada, as she had failed to satisfy
the requirements of the Act and applicable regulations with regards to the
entry to Canada of foreign nationals. On
March 9, 2008, the Minister’s delegate reviewed the report and issued the
exclusion order against the applicant which is now the object of the present
application.
[3]
The
applicant alleges that she obtained a work permit prior to travelling to Canada. Counsel refers to the Immigration
Manuals, namely IP 4, Processing Live-in Caregivers in Canada and OP 14,
Processing Applicants for the Live-in Caregiver Program, whereby visa
officers are responsible for the initial selection process and issuance of work
permits to live-in caregivers. Prior to entering into Canada, Service Canada
had issued a positive labour market opinion (LMO) which had been submitted by
the applicant to the visa post in Hong Kong, together with the applicant’s
offer of employment signed by her prospective employer, Ms. Lowe. Since the
application had been accepted by the Hong Kong office who issued a temporary visa,
the applicant submits that the immigration officer at the port of entry had in
turn the legal obligation to issue the work permit upon the arrival of the
applicant in Canada. Therefore, the applicant
asserts that the immigration officer exceeded her jurisdiction by calling the prospective
employer directly and asking the latter to come to the office with a number of
documents. As a result of the illegal actions, Ms. Lowe was no longer
interested in employing the applicant. Accordingly, pursuant to the applicant’s
submissions, the exclusion order issued against the applicant is not valid in
law.
[4]
I have
determined, as past decisions of this Court suggest, that the standard of
review of a Minister’s delegate’s findings, except where they concern pure
questions of law, is now that of reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J.
No. 9 (QL). In the case at bar, the applicant’s admissibility to Canada was to be assessed by the
officer under the combined effect of relevant provisions of the Act and the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations). This is
a mixed question of fact and law. In particular, the Minister’s delegate had
determined that: “Regulation 200(3)(d) and regulation 112(e) are very clear in
that a foreign national may not be issued a work permit unless they have an
employment contract with their future employer. It is clear that there is no
employer in this case”. For the reasons below, I see no legal motive to
interfere with this conclusion which is consistent with the applicable
provisions of the Act and the Regulations, and is based on the evidence on
record and is otherwise reasonable in the circumstances.
[5]
The
arguments made by the applicant are based on a misapprehension of the
applicable legal process and the nature of the actions taken by the visa office
in Hong Kong. Contrary to the applicant’s submissions, the document issued to
the applicant on September 6, 2007 by the Canadian Consulate General in Hong Kong, was not a working permit but
a temporary resident visa which is solely a travel document.
[6]
As stated
in the “Letter of Introduction” provided to the applicant by the visa office,
she was to be issued a work permit only at the port of entry, provided that she
met the requirements for admission into Canada:
Your application for work permit has been
approved; you may now travel to Canada.
You must have a valid passport or travel document. Please show this letter
and confirmation of job offer to the Canada Customs officer when you arrive
in Canada. He or she will direct you to
a Canada Immigration officer who will ensure that you meet the
requirements for admission to Canada and issue a work permit to
you. (Bold emphasis in the original)
[7]
This is
also clearly stated at the CIC web site:
After you pass the medical examination
and security screening and meet all other requirements, you will receive a
letter of approval. The work permit will be issued only upon your arrival in
Canada. (Emphasis added)
The Live-In Caregiver Program: After
applying http://www.cic.gc.ca/english/work/caregivers/apply-after.asp
[8]
Since the
port of entry’s responsibilities have been transferred over to the CBSA in
October 2004, it is the CBSA who issues work permits at the port of entry.
There is no CIC presence at the port of entry now that the CBSA has been
created. Thus, CBSA, which is responsible for the port of entry, had the legal
power, prior to issuing a work permit, to verify if there was still a valid
offer of employment upon the arrival of the applicant in Canada, and in case of
doubt, to contact the prospective employer and ask for clarifications and relevant
documentation, as the case may be.
[9]
The
jurisdictional argument made by the applicant in this instance completely
ignores the applicant’s obligation upon seeking admission at the port of entry.
Subsection 18 (1) of the Act required the applicant to present herself for
examination:
|
18. (1) Every person seeking to enter
Canada must appear for an examination to determine whether that person has a
right to enter Canada or is or may become authorized to enter and remain in
Canada.
|
18. (1) Quiconque cherche à entrer au
Canada est tenu de se soumettre au contrôle visant à déterminer s’il a le
droit d’y entrer ou s’il est autorisé, ou peut l’être, à y entrer et à y
séjourner.
|
[10]
Section 8
of the Regulations required the applicant to have a work permit to enter into Canada to work. For this she had to
have a valid employment contract as per paragraph 112 (e) of the Regulations.
Paragraph 20(1) (b) of the Act also required her to have a temporary resident
permit to enter Canada.
[11]
Indeed, paragraph
180 (b) of the Regulations, placed a positive burden on the applicant to
demonstrate she met the requirements at time of examination on entry into Canada:
|
180. A foreign national is not authorized to enter and remain
in Canada as a temporary
resident unless, following an examination, it is established that the foreign
national and their accompanying family members:
|
180. L’étranger n’est pas
autorisé à entrer au Canada et à y séjourner comme résident temporaire à
moins que, à l’issue d’un contrôle, les éléments suivants ne soient établis à
son égard ainsi qu’à celui des membres de sa famille qui
l’accompagnent :
|
|
(a) met the requirements for issuance of their
temporary resident visa at the time it was issued; and
|
a) ils
satisfaisaient, à la délivrance du visa de résident temporaire, aux exigences
préalables à celle-ci;
|
|
(b) continue to meet these requirements at the
time of the examination on entry into Canada
(emphasis added)
|
b) ils
satisfont toujours à ces exigences lors de leur contrôle d’arrivée.
|
[12]
Thus, upon
the applicant’s arrival to Canada, and pursuant to the applicant demonstrating
that she was meeting the requirements set forth in the relevant provisions of
the Act and the Regulations, a work permit was to be issued at the port of
entry for her admission to Canada. However, since Ms. Lowe was
no longer interested in the applicant’s services when the applicant attended
the port of entry examination, the loss of the applicant’s employment contract
triggered the application of paragraph 200(3)(d) of the Regulations which
prohibits the issuance of a work permit to a foreign national if the foreign
national seeks to enter Canada as a live-in caregiver without a valid
employment contract with her future employer. As the applicant was not issued a
work permit, her request for admission to Canada became contrary to section 8 of the
Regulations and paragraph 20(1)(b) of the Act which ultimately resulted in the
issuance of the exclusion order.
[13]
In view of
the above, the present application for judicial review must fail. Counsel for
the applicant agrees that this case does not raise a question of general
importance for certification, and none is stated.
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