Docket: IMM-5748-04
Citation: 2005 FC 657
Ottawa, Ontario, this 10th day of May, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
JONALYN MAY LIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant arrived in Canada under the Live-in Caregiver Program ("LCP") on March 6, 2003, from the Philippines. As such, she enjoyed temporary resident status until March 5, 2005, and also held a work permit to work for a family called Brick. The Applicant worked for the Brick family from March 6, 2003 until January 30, 2004, when she was laid off. She found a new employer, the Eshghi family, on February 2, 2004 and entered into a contract with them. They sought the necessary documentation from the Domestic Workers' Registry and Human Resources Development Canada and received a job confirmation on March 5, 2004.
[2] However, no application to extend her resident status or her work permit was made until May 19, 2004, when she applied for a new work permit and sent a payment of $150.00. Citizenship and Immigration Canada ("CIC") Vegreville considered her application on June 10, 2004.
[3] Her application was denied as she no longer had temporary residency status on May 21, 2004, the date she made her application. The Applicant is now seeking judicial review of that decision.
[4] The relevant statutory provisions are set out in the attached Annex.
[5] The standard of review for decisions of visa officers is reasonableness simpliciter (see Ram v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 855.
[6] To understand this case, it is necessary to examine the LCP more closely. The booklet issued by CIC entitled "The Live-in Caregiver Program" (the "Caregiver Booklet") describes the program as follows:
The Live-in Caregiver Program's objective is to bring qualified workers to Canada to do live-in work as caregivers when there are not enough Canadians to fill the available positions.
Successful applicants receive a work permit which allows them to work in Canada as live-in caregivers. After two years of employment, which must be completed within three years of the caregiver's arrival in Canada, live-in caregivers can apply in Canada to become permanent residents. They may be granted permanent resident status if they meet the requirements that are described later in this booklet.
[7] The LCP works as follows:
The Live-in Caregiver class is prescribed as class of foreign nationals who may become permanent residents on the basis of the requirements under the Act and Regulations. Live-in caregivers may apply for permanent residence in Canada after they have worked for two years as a live-in caregiver within three years of their arrival in Canada. They must meet the requirements under the Live-in Caregivers class under s. 113 of the Regulations.
Regulations, s. 110, 113
Visa officers are responsible for the initial selection process and issuance of work visas to live-in caregivers before entering Canada. At the port of entry, a work authorization is issued to the live-in caregiver. The Case Processing Centre in Vegreville ("CPC-V") is responsible for processing applications in Canada for work authorization and renewals, study permits and permanent residence applications in Canada.
Regulations, s. 111, s. 112, s. 200, s. 207
Inland Processing Manual, IP4, s. 5.1, 5.2
Work authorizations are issued and valid for one year at a time. Live-in caregivers must apply to CPC-V for a renewal of their work authorization before it expires. Live-in caregivers who change employers must apply for a new work authorization with a validated job offer and new employment contract.
Regulations, s. 201
If a live-in caregiver is between jobs and has not yet found a new employer, the caregiver can make an application for an interim work authorization, or "bridge extension" to bridge the gap of a work authorization about to expire. The extension is usually for a period of two months.
Inland Processing Manual, IP4, s. 8.5, Lieu Affidavit, Exhibit "A"
A temporary resident may apply for an extension of their status to remain in Canada if the application is made before the end of the authorized period. After the expiry of the authorization period, temporary resident status is lost. An application can be made within 90 days after losing temporary resident status to restore that status. A fee of $200.00 is payable for processing a restoration application.
Regulations, s. 181, s. 182, and s. 306
All applications made under the Regulations must be made in writing using the prescribed form and include all information and document [sic] required by the Regulations and the Act. The application must be accompanied by evidence of payment of the applicable fee.
Regulations, s. 10
[8] Examining the Immigration and Refugee Protection Act, 2001, c. 27 ("IRPA"), the Immigration and Refugee Protection Regulations, SOR/2002-227, (the "Regulations") and the Caregiver Booklet, the following conclusions can be drawn:
1. One of the objectives of the IRPA with respect to immigration is to facilitate the entry of temporary workers for purposes such as trade and commerce;
2. Live in caregivers are needed in Canada and IRPA and the Regulations have established a special program for caregivers. Under that program, live-in caregivers are given an incentive to come to Canada; they can qualify for permanent residency after having worked as live-in caregivers in Canada;
3. The program works on the basis of dual, interdependent authorizations; the work permit and the temporary resident status. Both the work permit and the temporary resident status are obtained when the caregiver first arrives in Canada. If the work permit is renewed, the temporary residency status is also extended. If the work permit expires, the temporary residency status also expires. Without valid, unexpired temporary residency status, a caregiver cannot apply for renewal of his/her work permit. Conversely, a valid unexpired work permit is a precondition for extension of the temporary residency status.
4. To avoid hardship or exploitation by employers, caregivers can change employers but this change is dependent on furnishing, with respect to the new employer, a validated job offer and new employment contract;
5. Since the work permit and temporary resident status are issued on an annual basis and there may be timeline issues, the Regulations allow for:
a) an extension for two months for those caregivers who anticipate the problem and apply prior to the expiry of their work permit; and
b) a 90-day grace period for those caregivers that miss the deadline and apply after the expiry of their work permit;
6. The discretion of CIC officers is circumscribed. Under sections 181 and 182, an officer shall extend an application for extension of status and shall restore an application for restoration of status if the requirements of the Regulations have been met.
[9] The Applicant had a two-year temporary resident visa expiring March 5, 2004. She should have applied for an extension of her status and a work permit before that date or a restoration of status within 90 days thereof, i.e. June 5, 2004. Alternatively, as she only obtained her new employment on March 5, 2004, she could have applied for a 60-day bridging extension prior to the expiry of her work permit.
[10] The same form (Form IMM 1249) is used for an extension of temporary resident status as visitor [Box A], an initial study permit or renewal of work permit [Box B], an initial work permit or renewal of work permit [Box C] and a restoration of temporary resident status as a visitor, student or worker [Box D]. An applicant is merely to check off the appropriate box, fill out the form and submit the appropriate fee.
[11] The Respondent makes the distinction between the following terms:
a) "renewal" - a term used in connection with work permits;
b) "extension" - a term used in connection with a subsisting temporary residence status and "bridging" extensions; and
c) "restoration" - a term used in connection with an expired temporary residence status.
The whole process for renewal, extension and restoration is described in a CIC booklet entitled "Applying to Change Conditions or Extend your Stay in Canada - Worker (IMM 5553-E (04-2004)" (the "Extension Booklet"). Unfortunately, this booklet is directed at all holders of work or study permits and their families, and thus the rights of caregivers are not easy to isolate and discern.
[12] This booklet is extremely hard to read and understand. On page 3 entitled "Overview" it makes the following statement:
"It is not necessary to make a separate application for extension of temporary resident status when you apply for a work permit. The officer will issue all the necessary documentation with the one application".
Anyone reading this might believe that one application is all that is required.
[13] The following confusing and questionable statement appears on the same page:
"If your status has expired or if you did not respect one of the conditions of your permit or you have worked or studied without a required permit, you have committed an offence under the Immigration and Refugee Protection Act. You may be subject to an admissibility hearing that could lead to removal from Canada. If your temporary resident status has expired, do not apply for an extension as you are not eligible. However, if you with to stay in Canada after your status has expired you may apply for restoration of status within 90 days of your permit expiry date or leave Canada. If you wish to apply for restoration, complete the enclosed application providing full details of how you came to commit the offence. There is no guarantee that your application will be accepted. See the section Restoration of Status." (Emphasis in original.)
[14] Without understanding the difference between "extension" and "restoration", this paragraph is unintelligible and seemingly self-contradictory. Secondly, I question the reference to offense and removal. A person applying for restoration is still availing himself of the provisions of IRPA, thus the reference to offense and removal will only scare applicants, confuse them and discourage them from applying for restoration (as details of the "offense" are required). It is also not clear whether any caregiver, who is trying to restore her status, would be prosecuted. Thus the reference to "you have committed an offense" is of questionable accuracy.
[15] Page 10 of the Extension Booklet admittedly has the following reference:
"If you apply for a work permit, you must pay the permit fee as well as the
restoration fee when applying. Restoration applies to each member who has
lost his or her status", (emphasis in original). However, on page 17 one finds
the following statement: "If you are required to pay additional fees, the
Case Processing Centre will send you a request for correct payment. Not
paying the correct fee will result in a delay in finalizing your application.
This payment must also be paid at a designated financial institution".
[underlining added]
[16] Lastly, it is at page 11 that the most vital information is buried and it is not highlighted. In fact, this information is absolutely crucial. The middle of page 11 provides:
"If you require only one service, tick the box that corresponds to the service you are requesting, for example, tick box "C" if you are applying for a renewal of your work permit. If you require more than one service and you are using only one application, tick the boxes that correspond to each of the services you require. For example: if you are applying for a renewal of your work permit and for a new study permit, tick boxes "C" and "B" and include the required documentation and fees".
[17] In this case, the Applicant filled out the form and explained what she was seeking in section 12 of Form IMM 1249:
Application was completed and sent to HRDC and approved. Applicant understood new employer was going to complete this application. However the employer did not complete all documentation required. Applicant has been checking online for approved work visa and none has been approved to date. Upon discussion with employer, mistake was found. Employer immediately called HRDC and was informed to complete this form. Employer still extends employment to applicant and sincerley [sic] apologizes for the error.
[18] However, she checked only Box C (an initial work permit or renewal of work permit) and not Box D (restoration of temporary resident status as a visitor, student or worker). More significantly, she only enclosed the $150.00 fee for renewal, but not the $200.00 fee for restoration of status.
[19] CIC takes the position that:
(a) She only applied on day 71 of the 90-day grace period and thus can only blame herself that an officer did not look at the form before the 90 days elapsed;
(b) As she did not include the fees for restoration and did not check Box D, there is no authority to grant or restore her status relying on section 12 of the Regulations;
(c) The CIC booklet and the CIC website carefully describe the LCP process, point out the need to apply early, the dual requirement of work permit and resident status, and the need to have status in order to renew a work permit;
d) By the time her application was examined by CPC-V the 90 day grace period had elapsed and thus the matter could not be rectified in any event.
[20] The Applicant, pointing to section 3(1)(g) of IRPA and relying on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Turingan v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1234, and Choi v. Canada (M.E.I.) [1992] 1 FC 763 argues that the Respondent owes the Applicant a duty of administrative fairness. The Respondent should have advised her of the deficiency of her application and asked for the second $200.00 fee, rather than turning down the application and returning the fee.
[21] The actions of CIC in this instance lack common sense. As Muldoon J. so aptly put it in Taei v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 293 (dealing with a refugee claim rather than a live-in caregiver) "(t)he rule of law does not require that statutes be read and interpreted in a robotic mindless manner. Common sense has not been abolished either by the Charter or by statute". It is also useful to recall the admonition of Jerome A.C.J. in Thakorlal Hajariwala v. M.E.I. [1989] 2 F.C. 79 that " the purpose of the statute [then the Immigration Act which is now the Immigration and Refugee Protection Act] is to permit immigration, not to prevent it."
[22] Any common sense reading of a Form IMM 1249 application for a work permit by a live-in caregiver would tell one that an applicant making an application in the 90-day grace period is applying for both restoration of status as a temporary resident and renewal of work permit. It makes no sense to apply for only the work permit as a) she is not eligible for a work permit without status restoration and b) without status restoration she cannot stay legitimately.
[23] The whole point of the 90-day grace period is to allow live-in caregivers to rectify their status. Pointing out that the CPC-V only handled the application after the 90 days expired is specious. The Applicant applied within the required period, any bureaucratic delay in handling the application, while understandable given the volume of work, should not be used as a justification to curtail the Applicant's rights. She made her application within the 90-day grace period established by section 182 and she still had 19 days to correct any deficiencies.
[24] It is necessary to be mindful of the fact that the actions of CIC have a drastic effect. The Applicant has to return to the Philippines and she has to reapply, which will take a minimum of two years given the backlog in Manila. She has to requalify and start from scratch. The time she has worked so far in Canada does not count toward the two years working time she needs before applying for permanent status.
[25] Thus, the rejection of this application, aside from bringing hardship to the Applicant, serves no discernible policy goal under IRPA, nor does it prevent any abuse of IRPA or the Regulations. It is completely out of tune with the general nature of the LCP as described by Jerome A.C.J. in Turingan, supra, at paragraph 8 (incidentally, a judicial review involving another woman from the Philippines under the then Foreign Domestic Workers Program):
The new immigration officer's decision should also be consistent with the guiding principles of the Program as they were spelled out by Rouleau, J. in Karim v. Canada (M.E.I.) (1988), [1989] 21 F.T.R. 237 at 238. After a thorough analysis of the Foreign Domestic Program, the learned Justice reached the following conclusions:
... (ii) the F.D.M. [Foreign Domestic Movement Program] was created in response to the recognition that domestic workers were performing a valuable service, often forming significant ties in this country but were generally less likely to achieve permanent residence status than other immigrants;
(iii) the purpose of the Programme is hence to facilitate the attainment of permanent residence status for foreign domestic workers subject to certain terms and conditions;
(iv) the Programme is to be administered in a flexible manner with the emphasis on extended advice and counselling services available in order that applicants may upgrade their skills, where necessary, to qualify for the Programme...
It is clear from this passage that the purpose of the Program is to facilitate the attainment of permanent residence status. It is therefore incumbent on the Department to adopt a flexible and constructive approach in its dealings with the Program's participants. The Department's role is not to deny permanent residence status on merely technical grounds, but rather to work with, and assist the participants in reaching their goal of permanent residence status.
[26] It is also difficult to reconcile the denial of this application with the following requirement of procedural fairness set out in Choi, supra:
..[a]t the very least, when the Canadian Government, through its agents, undertakes to supply information to immigration applicants as to how to become immigrants, it assumes a duty to provide this information accurately. This does not imply that Canadian authorities must provide a detailed exegesis of Canadian immigration law and procedures, or legal advice to prospective immigrants as to the legal significance of the available option, but it does mean that the Immigration Authorities have an obligation in fairness to provide basic information on the methods of application, and to make available the appropriate forms.
Fairness may, perhaps require no more than the accurate presentation of information. But it surely demands that much. For governments, as for ordinary people, honesty is the best policy.
[27] As I have set out in some detail above, the Extension Booklet is difficult to read, it is confusing and it makes too fine a distinction between terms that an English speaking Canadian would not understand, let alone a foreign caregiver not fully conversant in either official language.
[28] Applying common sense to this process, the date of receipt of the application, i.e. May 25, 2004, should be considered the lock-in date. Clearly she did not know, (nor could she reasonably be expected to know from the Extension Booklet,) that she also had to apply for a restoration of status. The Applicant should have been advised to check Box D and to send another $200.00 all within 19 days (the time remaining in the 90 day grace period). This was all that was required. Instead, CIC mechanically applied section 12 of the Regulations, ruling the application out of time. In my view, this is neither consistent with common sense, nor with Choi, supra.
[29] Consequently, I find the decision of CIC is not reasonable and therefore should be set aside.
ORDER
THIS COURT ORDERS that the decision dated June 10, 2004, of the Vegreville Centre of CIC, is set aside. The matter is returned to the Vegreville Centre of CIC for consideration in accordance with the terms of paragraph 29 of the Reasons for Order above.
"Konrad von Finckenstein" Judge
ANNEX
RELEVANT LEGISLATION
Immigration and Refugee Protection Act (S.C. 2001, c. 27)
3. (1) The objectives of this Act with respect to immigration are
... (g) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities;
Immigration and Refugee Protection Regulations, SOR/2002-227
10. (1) Subject to paragraphs 28(b) to (d), an application under these Regulations shall
(a) be made in writing using the form provided by the Department, if any;
(b) be signed by the applicant;
(c) include all information and documents required by these Regulations, as well as any other evidence required by the Act;
(c.1) include the name, postal address and telephone number of any person who represents the applicant, and the person's fax number and electronic mail address, if any;
(c.2) if the person who represents the applicant is charging a fee for representation, include
(i) the name of the organization referred to in the definition "authorized representative" of which the person is a member, and
(ii) the membership identification number issued by that organization to the person; and
(d) be accompanied by evidence of payment of the applicable fee, if any, set out in these Regulations; and
(e) if there is an accompanying spouse or common-law partner, identify who is the principal applicant and who is the accompanying spouse or common-law partner.
...
11. (2) An application for a temporary resident visa - or an application for a work permit or study permit that under these Regulations must be made outside of Canada - must be made to an immigration office that serves as an immigration office for processing the type of application made and that serves, for the purpose of the application,
(a) the country in which the applicant is present and has been lawfully admitted; or
(b) the applicant's country of nationality or, if the applicant is stateless, their country of habitual residence other than a country in which they are residing without having been lawfully admitted.
...
12. If the requirements of sections 10 and 11 are not met, the application and all documents submitted in support of the applicationshall be returned to the applicant.
...
110. The live-in caregiver class is prescribed as a class of foreign nationals who may become permanent residents on the basis of the requirements of this Division.
111. A foreign national who seeks to enter Canada as a live-in caregiver must make an application for a work permit in accordance with Part 11 and apply for a temporary resident visa if such a visa is required by Part 9.
112. 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.
113. (1) A foreign national becomes a member of the live-in caregiver class if
(a) they have submitted an application to remain in Canada as a permanent resident;
(b) they are a temporary resident;
(c) they hold a work permit as a live-in caregiver;
(d) they entered Canada as a live-in caregiver and, for a cumulative period of at least two years within the three years immediately following their entry,
(i) resided in a private household in Canada, and
(ii) provided child care, senior home support care or care of a disabled person in that household without supervision;
(e) they are not, and none of their family members are, the subject of an enforceable removal order or an admissibility hearing under the Act or an appeal or application for judicial review arising from such a hearing;
(f) they did not enter Canada as a live-in caregiver as a result of a misrepresentation concerning their education, training or experience; and
(g) where they intend to reside in the Province of Quebec, the competent authority of that Province is of the opinion that they meet the selection criteria of the Province.
(2) The cumulative period referred to in paragraph (1)(d) may be in respect of more than one employer or household and need not be without interruption, but may not be in respect of more than one employer or household at a time. SOR/2004-167, s. 80(F).
...
115. The applicable requirements set out in sections 112 to 114 must be met when an application for a work permit or temporary resident visa is made, when the permit or visa is issued and when the foreign national becomes a permanent resident.
...
181. (1) A foreign national may apply for an extension of their authorization to remain in Canada as a temporary resident if
(a) the application is made by the end of the period authorized for their stay; and
(b) they have complied with all conditions imposed on their entry into Canada.
...
182. On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay and has not failed to comply with any other conditions imposed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5748-04
STYLE OF CAUSE: JONALYN MAY LIM
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: April 27, 2005
REASONS FOR ORDER AND ORDER: von FINCKENSTEIN J.
DATED: May 10, 2005
APPEARANCES:
Ms. Deanna Okun-Nachoff for the Applicant
Ms. Caroline Christiaens for the Respondent
SOLICITORS OF RECORD:
Deanna Okun-Nachoff for the Applicant
Barrister and Solicitor
Vancouver, BC
John H. Sims, Q.C. for the Respondent
Deputy Attorney General of Canada