Date: 20000407
Docket: IMM-6501-98
BETWEEN:
CHANDRAKUMARI ARUMUGAM
Applicant
- and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
[1] Chandrakumari Arumugam (the "applicant") seeks a review under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of a decision dated November 4, 1998, signed by B. Marshen, Immigration Counsellor at the Canadian High Commission in New Delhi ("CHC") and reconfirmed on November 11, 1998 by William Marshall, Second Secretary at the CHC (the "visa officer"), refusing the applicant's application for admission into Canada as a live-in caregiver on the grounds that she did not meet the requirements for approval under the Live-in Caregiver Program set out in section 20(1.1) of the Immigration Regulations, 1978, SOR/78-172, (the "Regulations").
[2] Specifically, the refusal was based on two grounds. First, the applicant did not meet the requirement in paragraph 20(1.1)(b). Subsection 20(1.1) in its entirety reads:
| (1.1) An immigration officer shall not issue an employment authorization to any person who seeks admission to Canada as a live-in caregiver unless the person
[emphasis mine] |
1.1) L'agent d'immigration ne peut délivrer une autorisation d'emploi à une personne qui veut être admise au Canada en qualité d'aide familial résidant, à moins qu'elle ne réponde aux conditions suivantes :
|
[3] In particular, the visa officer says the applicant failed to meet the requirements of six months of full-time training or experience by completion of one year full-time paid employment including at least six months of continuous employment in the field of occupation within the last three years.
[4] The second ground for refusal was that the applicant failed to convince the visa officer she complied with the definition of visitor contained in section 2 of the Immigration Act, R.S.C. 1985, c. I-2. For the reasons given below, I need not deal with this issue.
BACKGROUND
[5] On September 1, 1998, the applicant made a visa application for temporary entry (visitor's visa) to Canada for the purpose of "employment for nanny live-in". Prior to making her application, Human Resources Canada had, by letter dated July 27, 1998, validated a temporary offer of employment to the applicant made by Mr. & Mrs. Pereira.
[6] On August 10, 1998, the Pereiras wrote to CHC saying the applicant had been selected for employment as a caregiver "for our parents and children aged 4 years and 2 years", a fact confirmed in their job offer to the applicant dated July 31, 1998 which was copied to CHC in New Delhi.
[7] The applicant was sent a letter by CHC on October 22, 1998, indicating an interview was required and instructed her to bring "proof of present employment, all educational and past and present experience documents/letters/certificates".
[8] The Certified Tribunal Record contains the following documents, provided by the applicant pursuant to CHC's request:
| (a) a letter dated July 3, 1997, from Mutual Holiday Travel in Colombo, Sri Lanka, which reads: |
| This is to certify that Miss Chandrakumary Arumugam was employed in this company as an accounts clerk fro 01.01.96 to 30.04.96. . . . |
| (b) a letter dated July 25, 1997, from the Secretary of the Senior Centre in Batticaloa stating as follows: |
| We have pleasure in giving this Certificate to Miss Chandrakumari Arumugam, who completed her Apprenticeship Course and worked in the Senior Centre as a Volunteer Care-giver from January, 1990 to November, 1995. |
[9] The applicant was interviewed by CHC on November 4, 1998. The CAIPS notes record the following questions and answers.
| What do you do? Not working. |
| When/what was the last employment? In Sri Lanka I have worked four mos as an office assistant with travel agency Colombo in 1996. |
| Before that? Orphanage convent as a care-giver frm Dec90 to 1995. |
| What kind of apprenticeship course you did? No answer (pls note ltr frm previous employer states she did app. course but subj has no single word to say about the course... Pls. note questioned[sic] repeated many times to subj). |
| Did you get any training or diploma as a care-giver? No ... am alone Douglas Pereira & family everything to me... my parents died... am the only child of my parents. |
| What is yr qualification? 10th passed student record sheet att. |
| What were your duties as a care-giver? Washing clothes, meal preparation & feeding to orphan older parents not kids. |
| As a care-giver yr job duties in Cda? Spr's parents are old, they have two child...girl is 4 yrs son is 2 yrs old. |
| What dishes you can make? Noodles, sandwitches, soups. |
| How you will deal with any emergency in Cda? I will call Douglas Pereira (pls note questioned[sic] repeated thrice). |
[10] After these questions and answers, the interviewer wrote:
| Subj doesn't have the experience as a care-giver; claims worked as a care-giver for older parents not small children then how she will look after spr's two small kids in Cda, ltr frm prev empl (Senior Centre) seems doubtful issued in July 97 whereas subj has left the job in 1995?? After that she has worked as an office assistant not as a care-giver. In addition seems she will not able to deal with any emergency in Cda (as above). Single young has no own family, living here alone... presently unemployed... Bfs looks doubtful. Seems doesn't meet the job requirement... seems an offer of convenience. Rec. refusal. |
[11] As noted, the applicant was refused a visa that day (November 4, 1998). On November 10, 1998, she appeared at the reception area of CHC requesting another interview. She was in possession of a letter from legal counsel in Canada. She was re-interviewed by the visa officer. After the second interview, the material part of the visa officer's CAIPS notes show:
| Do you have a job? no answer. |
| What do you do? no answer |
| Have you taken courses for home care? no answer |
| You did volunteer work at nursing home? yes |
| What were your duties? changing dresses, bathing, feeding, some cooking |
| Did you receive any training there? making food, arranging dining room |
| Do you cook? sandwiches, noodles |
| Any meat dishes? yes, chicken |
| When did you finish school? repeated several times. 1972 |
| What did you do between 1972 and 1990 when you worked at nursing home? Stayed at home. |
| Have you ever used electric stove, gas stove, microwave? gas |
[12] The visa officer made these observations in his CAIPS notes:
| Appnt does not have formal education for home care. Experience was volunteer with very limited duties. Only qualification either educ or exp was at nursing home. Very limited ability in English. Most questions 3 - 4 times and many not answered properly if at all. |
| Asked if she would mind responding to a situation question. no |
[13] The "situation" question and answer were these:
| If you were only adult at home with children (4+2) and one fell on stairs and was laying at the bottom hurt, what would you do? |
| -No answer so repeated 3 times -kids will stay in their room |
| -But they left their rooms and one fell |
| -long hesitation (30 seconds) |
| -What would you do? -inform sponsor |
[14] The visa officer made this additional comment in his notes:
| This appnt has no one in India or SriLanka it appears. Only rels (although distant) are in Cda. Appnt even referred to sponsor in Cda as her guardians during interview at times. Although the circumstances are unfortunate, appnt does not qualify as live in caregiver. Appnt does not meet the criteria of LCP and therefore again refused. Letter and passport returned at interview. |
[15] The applicant's sponsor and their solicitor further communicated with CHC by fax on November 12, 1998.
[16] The visa officer's last recordings are dated November 13, 1998 and say:
| I have reviewed this case and discussed it with the last interviewing officer. I feel that we have given every opportunity to the applicant and although I have sympathy for the applicant's plight she does not meet the LCP criteria and we have no recourse but to refuse her application of the same. |
THE AFFIDAVITS IN THE PROCEEDINGS
(1) The affidavit of Douglas Pereira
[17] The applicant did not file any affidavit in support of her judicial review application. However, the affidavit of Douglas Pereira, the sponsor, was deposed and which I summarize:
| (1) The applicant had submitted proof of training and proof of experience to the visa officer who was wrong in finding the applicant had not completed six months of full-time training related to the employment and completion of one year of full-time paid employment. He relied upon the letter from the Senior Centre and the undated letter saying the applicant had been looking after children since 1996; |
| (2) The visa officer did not ask the applicant any questions related to the visitor issue at the interview; |
| (3) Hostility was exhibited by the visa officer; the applicant was subjected to a barrage of questions and not given an opportunity to answer. |
(2) The respondent's affidavit
[18] The sponsor's affidavit concludes by stating the visa officer acted in bad faith, in failing to allow the applicant to disabuse him and by relying on facts that simply did not exist in making the negative decision.
[19] In these judicial review proceedings, the respondent filed the affidavit of William Marshall, the visa officer, who said a personal interview was scheduled to review the applicant's personal circumstances, including her qualifications and intentions with respect to travelling to Canada. He adds the applicant was questioned on November 4, 1998, by Ms. Madhu Philips, a Program Assistant within the Non-Immigrant Processing Section then sent to an Immigration Program Officer who reviewed the file and concluded the applicant did not meet the requirements of the Live-in Caregiver Program or the definition of visitor.
[20] The visa officer, in his affidavit, states that on November 10, 1998, the applicant appeared at CHC, with a letter from legal counsel, requesting reconsideration of her application saying basically he reopened the interview in fairness because he had not conducted the original interview. He added the applicant was properly advised when interviews were scheduled and she should take lunch.
[21] After questioning her, he was of the opinion she did not meet the requirements of the program.
ANALYSIS
The legislative scheme
[22] Any challenge to a decision of the visa officer must take into account the applicable legislative scheme contained in the Act and the specific regulatory provision at hand.
[23] In her circumstances, the applicant is a visitor under the Act. Section 2 of the Act defines:
| "visitor" means a person who is lawfully in Canada, or seeks to come into Canada, for a temporary purpose, other than a person who is (a) a Canadian citizen, (b) a permanent resident, (c) a person in possession of a permit, or (d) an immigrant authorized to come into Canada pursuant to paragraph 14(2)(b), 23(1)(b). |
"visiteur" Personne qui, à titre temporaire, se trouve légalement au Canada ou cherche à y entrer, à l'exclusion_: a) des citoyens canadiens; b) des résidents permanents; c) des titulaires de permis; d) des immigrants visés aux alinéas 14(2)b), 23(1)b) ou 32(3)b). |
[24] Subsection 9(1) of the Act provides generally that a visitor shall make an application for and obtain a visa before that person appears at a Canadian point of entry. Subsection 9(1.2) says an applicant for a visitor's visa shall satisfy a visa officer that a person is not an immigrant. Subsection 9(2.1) of the Act mandates that an application for a visitor's visa shall be assessed by a visa officer.
[25] Subsection 9(3) of the Act deals with the duty of an applicant to answer questions and to produce documentation and it reads:
| 9. (3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations. |
9. (3) Toute personne doit répondre franchement aux questions de l'agent des visas et produire toutes les pièces qu'exige celui-ci pour établir que son admission ne contreviendrait pas à la présente loi ni à ses règlements. |
[26] Finally, subsection 9(4) says "where a visa officer is satisfied that it would not be contrary to this Act or the Regulations to grant ... entry ... the visa officer may issue a visa to that person ... for the purpose of identifying the holder as ... a visitor who, in the opinion of the visa officer, meets the requirements of this Act and the Regulations".
[27] In the case at hand, the applicant applied for entry into Canada for the purpose of working as a live-in caregiver. Live-in caregiver is defined in subsection 2(1) of the Regulation:
| "live-in caregiver" means a person who provides, without supervision, in a private household in Canada in which the person resides, child care, senior home support care or care of the disabled; |
"aide familial résidant" Personne qui fournit sans supervision, dans une résidence privée située au Canada dans laquelle elle vit, des soins à domicile à un enfant, à un personne âgée ou à une personne handicapée. |
[28] Sections 18 through 20 of the Regulations contain specific rules for the issuance of employment authorizations. Subsection 20(1.1) as noted and reproduced covers the requirements which an applicant must meet to qualify for the live-in caregiver program.
[29] This legislative and regulatory scheme, supplemented by common-law principles relating to fairness, define the mutual obligations of an applicant and the visa officer. An applicant has the obligation to produce all relevant information which may assist his/her application; an applicant must put his/her best foot forward (see Hajariwala v. Canada (Minister of Employment and Immigration, [1989] 2 F.C. 79 per Jerome A.C.J.). The visa officer must conduct the interview fairly and exercise his/her discretion on proper principles.
[30] The requirement of the Live-in Caregiver Program contained in subsection 20(1.1) of the Regulations was considered by my colleague Gibson J. in Khusardeo v. Canada (Solicitor General) (1995), Imm.L.R. (2d) 70, where he said this about the obligation of the visa officer at paragraph [4]:
| [4] There would appear to me to be no doubt that the employment offered to the applicant, that is, as a "child care/live-in nanny", and for which the applicant sought to come to Canada, was employment as a "live-in caregiver", despite the fact that I have some difficulties with the concept of "without supervision" contained in the definition of that expression. That being said, it was incumbent upon the visa officer to comply with the provisions of subs. 20(1.1) of the Immigration Regulations, 1978. She had no alternative but to not issue an employment authorization if the applicant did not fulfil the requirements of that subsection. Here, the applicant did not meet those requirements.... |
| [emphasis mine] |
[31] As I read subsection 20(1.1) of the Regulations, the applicant had to meet each of the following requirements to qualify:
| (1) completion of a course of study equivalent to high school; |
| (2) training as a caregiver either by completion of six months full-time training in a classroom setting as part of her high school course or otherwise; |
| (3) as an alternative to the training requirements, the applicant could qualify if she had sufficient experience by the completion of one year of full-time paid employment including at least six months of continuous employment with one employer, in the field within the three years immediately prior to the application date. |
[32] Paragraph 20(1.1)(1) is not in issue.
APPLICATION TO THIS CASE
(1) The fairness issue
[33] The applicant raised several issues of fairness related to the manner in which the interview was conducted, the failure of the visa officer to identify his concerns or to ask clarifying questions so the applicant could address them.
[34] As noted, the applicant did not provide an affidavit in support of these judicial review proceedings; the sponsor did. By contrast, the visa officer, William Marshall, swore an affidavit and was not cross-examined on it. The respondent, citing Rule 81 of the Federal Court Rules, 1998 said the sponsor's affidavit should be discounted. That Rule reads:
| 81. (1) Affidavits shall be confined to facts within the personal knowledge of the deponent, except on motions in which statements as to the deponent's belief, with the grounds therefor, may be included. (2) Where an affidavit is made on belief, an adverse inference may be drawn from the failure of a party to provide evidence of persons having personal knowledge of material facts. |
81. (1) Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s'ils sont présentés à l'appui d'une requête, auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l'appui. (2) Lorsqu'un affidavit contient des déclarations fondées sur ce que croit le déclarant, le fait de ne pas offrir le témoignage de personnes ayant une connaissance personnelle des faits substantiels peut donner lieu à des conclusions défavorables. |
[35] The respondent's point is well taken; the Federal Court of Appeal's decision in Moldevenau v. Canada (Minister of Citizenship and Immigration) (1999), 235 N.R. 192 is determinative. That case dealt with a visa officer's refusal of the appellant's application for permanent residence in Canada. The judicial review application was supported only by an affidavit sworn to by a person employed as a paralegal in the law firm representing the appellant. The motions judge struck out the affidavit and was upheld by Décary J.A. formulating the following issue at paragraph [1]:
| [1] The issue in this appeal is whether, in an application for judicial review of a visa officer's decision, facts which do not appear on the face of the record and are within the personal knowledge of the applicant can be put in evidence not by the applicant but through the affidavit of a third person who has no personal knowledge of these facts. |
[36] One rationale for Rule 81 and the requirement that affidavits be based on personal knowledge relates to the search for the truth of material facts. Such facts can be sought through cross-examination of a deponent who has personal knowledge. This is not the case where the person being cross-examined has deposed to facts not within personal knowledge.
[37] In this case, the applicant has not advanced any facts to support her fairness arguments. The visa officer, however, put in a responding affidavit which was grounded in the CAIPS notes and support the respondent's position the visa officer acted properly. For these reasons, the fairness argument put forward by the applicant must be rejected.
(2) Were the subsection 20(1.1.) requirements met?
[38] The applicant was obliged to establish she met either the training or experience requirements set out in subsection 20(1.1).
[39] The training requirements consist of the completion of six months full-time training either in a classroom setting when she took her levels equivalent to high school in Canada or otherwise.
[40] Applicant's counsel argues when applicant was attending school taking her levels, she successfully passed home science and health science courses. Applicant's counsel suggested the Court could (or should) infer she had met the six-month training requirements in a classroom setting. I cannot accept this argument. Meeting the training requirements is not a matter of inference but a fact which the applicant had to satisfy the visa officer on. She did not. The visa officer directly asked her whether she had any training or diploma as a caregiver to which the applicant said no.
[41] Alternatively, the applicant argues she obtained full-time training in a manner otherwise than in a classroom, mainly at the Senior Centre. Applicant's counsel points to the July 25, 1997 letter from the Centre which indicates she "completed her Apprenticeship Course and worked in the Senior Centre as a Volunteer Care-giver from January, 1990 to November, 1995".
[42] During her November 4, 1998 interview, the applicant was directly asked "[W]hat kind of apprenticeship course you did?" The interviewer's CAIPS notes record "[N]o answer (pls note ltr frm prev employer states she did APP. course but subj has no single word to say about the course... Pls note questioned [sic] repeated many times to subj)". The visa officer's November 11, 1998 interview also touched upon this subject matter. Given the answers by the applicant, he was not satisfied that she received a six-month full-time formal training. The record indicates, in my view, the visa officer had a substantive basis upon which he could draw that conclusion.
[43] The applicant argued she met the experience requirements which are, as noted, an alternative route to qualification. She made her application on September 1, 1998. According to the Regulations, she had to establish that in the period between September 1, 1995 to September 1, 1998, she completed one year of full-time paid employment as a caregiver. She could not establish she met this requirement through the letter from the Senior Centre because the Centre indicated she was not there after November 1995. Her employment record shows after that no experience as a child care-giver. In the circumstances, I need not comment on whether she had demonstrated full-time paid employment in that the letter from the Senior Centre indicated she was a volunteer there.
[44] The applicant tried to establish she met the experience requirements through the undated letter referred to in the affidavit of Douglas Pereira. Even if that letter had been introduced through an affidavit deposed to by the applicant, that letter could not be used in these proceedings because this circumstance was not before the visa officer. (See Lemiecha et al. v. M.E.I. (1993), 72 F.T.R. 49).
[45] There were other attacks on the visa officer's decision such as he misconstrued the evidence by failing to recognize the sponsor's older parents. All of these arguments do not detract from the crucial findings of the visa officer.
[46] For all of these reasons, this judicial review application is dismissed. No certified question is proposed or required.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
APRIL 7, 2000