Date: 20010510
Docket: IMM-3156-00
Neutral citation:2001 FCT 461
BETWEEN:
VENEZIANA MASCARENAS
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
[1] These reasons arise out of an application for judicial review of a decision of a visa officer wherein the visa officer rejected the applicant's application for temporary entry to Canada as a live-in caregiver. The decision under review is dated the 25th of May, 2000.
[2] Subsection 20(1.1) of the Immigration Regulations, 1978[1] defines the circumstances in which an immigration officer shall not issue an employment authorization to a person who seeks admission to Canada as a live-in caregiver. The portion of that subsection that is relevant to this application for judicial review reads as follows:
| (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 (a) has successfully completed a course of study that is equivalent to successful completion of Canadian secondary school; ... |
(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 : a) avoir terminé avec succès des études d'un niveau équivalent à des études secondaires terminées avec succès au Canada; ... |
|
[3] In the letter conveying the decision under review, the visa officer wrote:
In my opinion, you do not meet the requirements for admission to Canada as a live-in caregiver, as you have not satisfied me that you have successfully completed a course of study that is the equivalent of Canadian grade 12. You have therefore not proven that your admission would not be contrary to the Immigration Act.
Thus, failure to fulfill the educational requirement constituted the sole basis on which the applicant's application for admission to Canada was rejected.
[4] Chapter 13 of the Overseas Processing Immigration Manual provides visa officers with further guidance in assessing applicants who apply for an employment authorization under the live-in caregiver program. Paragraph 3.2 of that chapter deals with the education requirement. It reads:
Successful completion of the equivalent of Canadian secondary education. This requirement helps to prepare live-in caregivers for the Canadian labour market, after their application for permanent residence has been accepted.
The intent is to ensure that LCP applicants are able to compete in the broader labour market after they leave the caregiving field. Given the variation in school systems, this requirement cannot be regarded as simply a matter of counting years of schooling until reaching number 12.
Equivalency of achievement is what is important.
[emphasis added]
Thus, chapter 13 of the Overseas Processing Immigration Manual provides guidance to visa officers as to the interpretation of the word "equivalent" in paragraph 20(1.1)(a) of the Regulations quoted above.
[5] The sole issue argued before me on this application for judicial review was whether or not the visa officer had erred in her application of paragraph 20(1.1)(a) of the Regulations, taking into account the guidance provided to her by the Manual.
[6] In her CAIPS notes that formed part of the record before me, the visa officer made the following entry:
I have reviewed the information on file. Subj has 11 yrs of schooling, according to the information provided.
R20(1.1)(a) requires education level that is the equivalent of Canadian secondary school. With only 11 years of schooling, I am not satisfied that this requirement is met.
Case refused. Refusal letter prepared and on file.
[7] The affidavit of the visa officer that was before me expanded on the foregoing brief entry but essentially affirmed it. Paragraphs 7, 9 and 14 of the visa officer's affidavit provide as follows:
7. The file was assessed on the basis of the information provided on file. The Applicant's school leaving certificate, on p.34 of the Record, indicates that the Applicant was admitted to St Joseph's High School on 7 June 1965 and departed this school on 27 May 1975. No information was provided regarding the applicant's level of education that would indicate she had completed any further studies. The Details of Education form completed as part of the application form, found on p.10 of the Record, indicates the same years of study: between 1965 and 1975.
...
9. On the basis of the information before me, I was not satisfied that the applicant had completed a course of study that is the equivalent of Canadian secondary school, or 12 years duration. The applicant was able to substantiate 10 years of education only. Please note that CAIPS indicates the Applicant had 11 years. In calculating the years of education at the time of assessment of the file, this was indicated as 11 years: it should be 10 only.
...
14. I did not convoke the applicant to interview, as it did not appear that any purpose would be served in doing so. On the basis of the information before me, the 10 years of education, the Applicant had completed rather than the 12 required for the equivalent of Canadian secondary school, clearly failed to meet one of the requirements of the Regulations governing the issuance of Live-In Caregiver visas. It is not my practice, nor the practice of the Consulate, to convoke applicants to interviews in cases where the requirements are clearly not met.
[8] While the decision of the visa officer that is here under review might well have been reasonably open to her on the basis of the material that was before her, I conclude that is simply was not supported by her analysis. That analysis consisted of a mere counting of years of primary and secondary level education. I am satisfied that, as indicated in the Manual as quoted above, a mere counting of years is not a satisfactory method of determination of equivalency. In the result, I conclude that the visa officer erred in law in her interpretation of paragraph 20(1.1)(a) of the Regulations and in so doing erred in a reviewable manner in the application of that paragraph to the material that was before her on behalf of the applicant. That material clearly included a transcript of the applicant's educational record at the secondary school level. Absolutely no qualitative analysis was conducted to determine whether or not that transcript disclosed an equivalency between the secondary level education that the applicant had acquired and a Canadian secondary education. As Madam Justice Dawson concluded in Chatterjee v. Canada (Minister of Citizenship and Immigration)[2], albeit on different facts from those here before me, a mere counting of years as a test of equivalency represents a reviewable error.
[9] In the result, this application for judicial review will be allowed, the decision of the visa officer that is under review will be set aside and the applicant's application for temporary entry to Canada as a live-in caregiver will be referred back to the respondent for redetermination by a different visa officer. Neither counsel recommended certification of a question. No question will be certified.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
May 10, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3156-00
STYLE OF CAUSE: VENEZIANA MASCARENAS
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, MAY 9, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: THURSDAY, MAY 10, 2001
APPEARANCES BY: Mr. Max Chaudhary
For the Applicant
Ms. Claire le Riche
For the Respondent
SOLICITORS OF RECORD: Chaudhary Law Office
Barristers & Solicitors
18 Wynford Drive, Suite 707
North York, Ontario
M3C 3S2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010510
Docket: IMM-3156-00
Between:
VENEZIANA MASCARENAS
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER