Docket: IMM-5993-14
Citation:
2015 FC 826
Calgary, Alberta, July 7, 2015
PRESENT: The
Honourable Mr. Justice Zinn
|
BETWEEN:
|
|
WILMA
VILLANUEVA
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The applicant asks the court to set aside the
decision of an officer at the Embassy in London, U.K., denying her a work
permit for a live-in caregiver position for an elderly man. For the reasons
that follow, her application must be dismissed.
Background
[2]
The applicant, Wilma Villanueva, is a British
citizen, originally from the Philippines. She has a degree in Midwifery from
the Philippines, which she obtained in 1972.
[3]
While in London, the applicant worked as a
health care assistant at the University College London Hospital [UCLH] Neonatal
Unit from April 1991 to January 2011. She subsequently worked as a Ward Housekeeper
in UCLH from January 2011 to March 2013.
[4]
Between June 1991 and December 1996, the
applicant worked part-time as a nursing auxiliary and senior care assistant for
St. Mary’s Convent and Nursing Home.
[5]
On October 1, 2013, the applicant was offered a
position to care for Gregorio Tupas, her uncle. In February 2014, after
submitting an application for a work permit as a live-in caregiver, the officer
informed the applicant that proof was required of one year full-time paid
employment experience related to care of elderly persons. The applicant
provided documentation.
[6]
The application was rejected by letter dated May
15, 2014. The officer was not satisfied that the applicant met section 112 of
the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR].
In particular the officer was not satisfied that the applicant had successfully
completed six months of full-time training in a classroom setting, in a field
or occupation related to the employment sought or had completed one year of
full-time paid employment, including as least six months of continuous
employment with one employer, in a field or occupation related to the
employment sought.
[7]
The Global Case Management Notes [GCMS notes]
indicate that the officer was unable to consider the applicant’s elder care
experience at St. Mary’s as it was outside the three year period specified to
be the relevant period in the IRPR. The applicant does not take issue
with that finding.
[8]
The officer noted that her employment duties
as a Ward Housekeeper at UCLH “do not appear to be …
related to direct patient care, or related to employment in Canada as care of
an elderly person.” Moreover, it was found that her training as a
midwife “is not related to employment in Canada, care
of an elderly person.”
Issues
[9]
There are two issues raised in this application:
the standard of review and whether the officer erred in his decision or whether
it was unreasonable.
Analysis
[10]
The applicant submits both her education and
experience met the requirements of paragraph 112(c) of the IRPR, which reads
as follows:
A work permit shall not be issued to a foreign national who seeks to
enter Canada as a live-in caregiver unless they
…
(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;
[11]
She submits that the officer erred in his or her
interpretation and application of paragraph 112(c) of IRPR. Her
submission is that the officer made the same error that was made in Singh v
Canada (Minister of Citizenship and Immigration), 2006 FC 684 [Singh]
in that the officer interpreted section 112 of the IRPR as requiring
that the applicant have specific employment experience or education in the
field of elder care, whereas her experience and education was in the field of
child care.
[12]
The applicant cites several cases for the
proposition that where the interpretation of regulations is required, the
standard of review is correctness; see for example, Singh. The
respondent cites Mayorga v Canada (Minister of Citizenship and Immigration),
2010 FC 1180 for the proposition that cases like these are to be reviewed on a
reasonableness standard.
[13]
I agree with the respondent that the standard of
review finding in Singh is suspect in light of the decisions of the
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 at para
54, Smith v Alliance Pipeline Ltd, 2011 SCC 7 at para 28, and Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61 at para 30. These decisions indicate that with limited exceptions
that are not present here, when the decision-maker is interpreting his or her
home statute, the standard of review is reasonableness.
[14]
In any event, I do not accept the applicant’s
submission that the officer here was looking specifically for elder care and
discounting care in other fields. In my view, although the choice of words may
suggest that was what was being done, it was shorthand and the decision as a whole,
and particularly the GCMS notes indicate that the concern was that the
applicant had no experience or education that was related to direct care of the
sort required here. This was an assessment of the facts in the applicant’s
application and not one of statutory interpretation.
[15]
The job offer for the applicant’s elder care
position lists the responsibilities and duties as:
Prepare and serve nutritious meals, shop for
food and household supplies, wash, iron and press clothing and household
linens, perform light housekeeping and cleaning duties, companionship.
[16]
The purpose of the Ward Housekeeper position in
the Neonatal Unit held by the applicant was stated to be the following:
The Housekeeper is a member of the nursing
support team, which provides a 7 day a week service for the Unit including
Intensive, High Dependency, Special care and Transitional Care, working under
the direct supervision of the trained nursing staff. The contribution of the
housekeeper support team enables the nurses to spend more time caring for the
babies and their families, and helps to provide a suitable environment for this
care to take place.
[17]
The officer noted that the housekeeper position
did not deal directly with providing care. It is not unreasonable to conclude
that her relevant experience is not “in a field or
occupation related to the employment for which the work permit is sought”
as is required by the IRPR.
[18]
Similarly, it is not unreasonable to conclude
that the applicant’s education as a midwife was not “in
a field or occupation related to the employment for which the work permit is
sought” as is required by the IRPR. I do not accept the
submission of the applicant that courses such as nutrition and hygiene, meet
the requirement. In my view, absent evidence to the contrary, it is reasonable
to conclude there is a significant difference in nutrition, first aid and
hygiene required by women prior to childbirth and postpartum
and that required for the elderly.
[19]
Neither party proposed a question for
certification, nor is there one on these facts.
Email this Content