Ottawa, Ontario, February 13, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BACKGROUND
[1] The Applicant, Alexandra Ilona Murai, is a Hungarian citizen. In February 2001, the Applicant came to Canada without a visa as it was not required. Her application for an extension of time to remain in Canada was refused. Her subsequent application for refugee status was denied, and her leave application for judicial review was refused. Her application to defer the removal order was denied. Her Pre-removal Risk Assessment was denied, and leave for judicial review was denied. Her humanitarian and compassionate leave application ("H & C Application") was denied, and leave for judicial review was also denied. She left Canada on May 19, 2004.
[2] The Applicant has a Bachelor Degree in English and is trained as a caregiver. On November 19th, 2004 the Applicant submitted an application for a Work Permit as a live-in caregiver. She was interviewed on January 18, 2005 at the Canadian Embassy in Budapest, Hungary regarding the work permit. Her application was denied on the same day as the Visa Officer (the "Officer") was not satisfied that the Applicant would leave Canada at the end of the authorized stay per section 183(1)(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations").
[3] The Applicant is asking for judicial review of the decision of the Officer's decision to deny the Applicant a work permit.
STANDARD OF REVIEW
[4] Both sides rely on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and agree that as this issue presents a question of mixed fact and law, the standard of review is reasonableness simpliciter.
STATUTORY FRAMEWORK
[5] The scheme under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act") is quite straight forward. Pursuant to s.20(b) of the Act:
Every foreign national..., who seeks to enter or remain in Canada must establish,... to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay.
And under s. 22(1) of the Act:
A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b) and is not inadmissible.
In addition s. 22(2) of the Act specifically provides that:
An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canadaby the end of the period authorized for their stay.
Pursuant to s. 26 of the Act, Regulations can then be made to "provide for any matter relating to the application of sections 18 to 25."
Regulation 112 of the Regulations then provides that 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."
ANALYSIS
[6] The Applicant met all these conditions of the Live-in Caregiver Program. She was not allowed to enter because the Officer felt she did not meet the requirement of s. 20(1) of the Act, namely not having established thatshe "will leave Canada by the end of the period authorized for [her] stay".
[7] The Officer came to this conclusion on the basis of her previous immigration history. As the Officer stated in his affidavit:
7. The Applicant had entered Canada prior to the December 2001, imposition of a Visitor Visa requirement for Hungarians.
8. The Applicant entered Canada February, 2001, as a visitor and stated her intention to establish permanent residence in Canada. However the Applicant was not in possession of an immigrant visa before she appeared at the Port of Entry.
9. On August 7, 2001, the Applicant was refused an extension of her visitor visa, as she did not provide to immigration officials proof of a valid passport. Furthermore, the Applicant did not provide proof of funds or a copy of a letter of support to immigration officials.
10. Notwithstanding that the Applicant was refused an extension of her visitor visa, the Applicant remained in Canada to pursue a refugee claim and unsuccessful litigation challenging that decision.
11. On October 14, 2003, the Applicant filed with the Federal Court an Application for Leave and Judicial Review of the negative Refugee Protection Division decision, dated October 2, 2003. On January 12, 2004, leave was denied.
12. On May 12, 2004, the Applicant filed with the Federal Court an Application for Leave and Judicial Review of the refusal to defer removal decision, dated May 6, 2004. On October 22, 2004, leave was denied.
13. On May 12, 2004, the Applicant filed with the Federal Court an Application for Leave and Judicial Review of the negative Pre-removal Risk Assessment, dated April 28, 2004. On July 29, 2004, leave was denied.
14. On June 9, 2004, the Applicant filed with the Federal Court an Application for Leave and Judicial Review of the negative Visa Humanitarian and Compassionate decision, dated May 21, 2004. On October 21, 2004, leave was denied.
15. The Applicant was ultimately removed from Canada on or about 19 May 2004.
16. Given that the Applicant had been in Canada as a visitor and ultimately failed refugee claimant, I was not satisfied that she was a bona fide temporary resident per the provisions of the Immigration and Refugee Protection Act and Immigration and Refugee Protection Regulations.
[8] The exact entry in the Respondent's computerized Field Operating Support System ("FOSS") notes, located at page 13 of the Applicant's Record, states:
based on pa's immigration history, i am not satisfied that she is a bona fide temporary resident nor that she would depart canada should an application for pr be made as allowed under the lc program. application refused.
[9] The Live-in Caregiver program under which the Applicant applied has, according to the manual issued by the Respondent, the goal of:
Citizenship and Immigration Canada (CIC) established this program to meet a labour market shortage of live-in caregivers in Canada, while providing an avenue for these individuals to work and eventually apply for permanent residence from within Canada.
(page 34 of the Applicant's Book of Authorities)
[10] Thus, the idea is to allow caregivers to come to Canada on what is essentially a probationary period. If they perform well, as a reward for doing a needed job, they may apply for permanent residence. There is, of course, always the risk that they may not succeed in their eventual application for permanent residence, and the Officer had the task of assuring himself that the Applicant had an intention to return if unsuccessful.
[11] How does one ascertain that intention? The Live-in Caregiver manual, found at page 51 of the Applicant's Book of Authorities, sets it out quite succinctly:
Insofar as possible, given the difficulty of establishing future intentions, officers should satisfy themselves that an applicant for the live-in caregiver program has the intention of leaving Canada should the Application for permanent residence be refused. The question is not so much whether the applicant will seek permanent residence but whether the person will stay in Canada illegally.
[12] What better evidence is there to ascertain such an intention than previous immigration encounters, if such are available? In this case they are available. It was shown that on the Applicant's previous immigration encounter, although she exhausted every possible means of staying in Canada, she left as required by law once she had exhausted all her legal options. She did not go underground or try to stay in Canada by illegal means. She obeyed her removal notice, appeared at the airport voluntarily, and departed. This is quite clear from the confirmation of departure contained in the Respondent=s FOSS record.
[13] I might also point out that when the Applicant=s H & C application was denied, the FOSS record has the following remark: "ability to become established does not preclude the Applicant from applying from overseas in the normal manner".
[14] It strikes me that the Officer came to an unreasonable decision. The record reveals that the Applicant is a law abiding citizen, who after exhausting her remedies returned to her home country and subsequently applied under the Live-in Caregiver Program. The program is designed to bring people with her skills to Canada.
[15] The fact that she previously complied with Immigration Rules supports her contention that she is:
a) law abiding; and
b) will continue to comply with these riles in the future.
[16] The Officer in question asked himself the wrong question. Rather than asking himself "will she leave Canada once given ingress?" as he did, (see affidavit of Gregory Chubak para 4) he should have followed the Live-in Caregiver's manual and asked himself "will this person stay illegally in Canada if not successful under the program?" Based on the Applicant's past performance, any reasonable person would say "no, she will not stay in Canada illegally".
[17] Accordingly, this application will succeed.
ORDER
THIS COURT ORDERS that the decision of the Visa Officer of January 18, 2005 is set aside and the matter is referred back to another visa officer for reconsideration.
"Konrad W. von Finckenstein"
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1541-05
STYLE OF CAUSE: alexandra ilona murai
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 8, 2006
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
APPEARANCES BY:
Wennie Lee FOR THE APPLICANT
Vanita Goela FOR THE RESPONDENT
SOLICITORS OF RECORD:
Wennie Lee
Toronto, ON FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT