Diongson v. Canada (Minister of Citizenship and
Immigration)
Between
Fe Villaneuva Diongson, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 285
2012 FC 264
Docket IMM-258-11
Federal Court
Toronto, Ontario
Zinn J.
Heard: February 22, 2012.
Judgment: February 28, 2012.
Docket IMM-258-11
Federal Court
Toronto, Ontario
Zinn J.
Heard: February 22, 2012.
Judgment: February 28, 2012.
(13 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 ZINN J.:-- For the reasons that follow, this
application is allowed and the decision of a Non-Immigrant Officer of the
Consulate General of Canada in Buffalo, New York (the officer), dated November
10, 2010, refusing the applicant's application for a work permit under the
live-in caregiver program (LCP), is set aside.
2 The
applicant, a citizen of the Philippines, was the victim of a fraud. In 2005,
she was recruited by Ms. Fe Malab, to whom she ended up paying US$6,000 to
apply under the LCP and obtain a Labour Market Opinion (LMO). When her LCP
application was approved, she met with Ms. Malab and asked about her employer
in Canada, but was told by her that she did not know who the employer would be
yet, and if the immigration asked her she should make up answers. The applicant
tried to call the employer listed on her LMO, but there was no answer.
3 The
applicant arrived in Canada on June 14, 2007. She traveled by taxi to the
address listed for her employer and discovered that it was Ms. Malab's home,
and there were more than 20 other Filipino women living there. The applicant
asked Ms. Malab the following day about her employer, and Ms. Malab told her to
relax, and it was not time to start her job yet, and eventually told her she
had been 'released on arrival' and would need to find another position.
4 The
applicant states that Ms. Malab evaded all her requests to place her with an
employer as a live-in caregiver once she arrived in Canada. Instead, she
repeatedly lied to the applicant, telling her that she could obtain her permanent
residence in other ways, and work in part-time jobs Ms. Malab found for her,
such as in factories or cleaning. Ms. Malab began to charge her $300 a month to
live in her house. Each time she asked for a legitimate work placement, Ms.
Malab extorted more money from her. Eventually, the applicant refused to pay
Ms. Malab any more money.
5 Through
the Caregivers' Action Center, the applicant eventually met with a lawyer and
immigration consultant, and learned that what Ms. Malab had been doing, and
encouraging the applicant to do, was illegal. In September 2009, the applicant
made a complaint to the Canada Border Services Agency about Ms. Malab and
others. A warrant was subsequently issued for Ms. Malab, and her house was
raided.
6 In
November 2009, the applicant was interviewed in relation to her application for
a temporary resident permit (TRP) on the basis that she was a victim of
trafficking. That application was refused at the end of the interview (TRP
decision). The Field Operation Support System notes (FOSS notes) for the TRP
decision were relied on by the officer in this case.
7 The
applicant found a position as a live-in caregiver with another family. She
obtained a new LMO, and applied for a work permit under the LCP. In a decision
letter dated November 10, 2010, the officer stated that the applicant did not
meet the requirements for a work permit and provided the following reasons for
the refusal:
· You arrived to Canada in June 2007 with a work permit issued to you
pursuant to the Live-in Caregiver Program. Since your initial arrival, you have
continued to remain in Canada, have applied for extensions of the work permits,
changing employers on at least one occasion. No mention or proof has been
provided to indicate or explain the reason(s) for your change/termination of
employers or duration of any employment in Canada. Insufficient evidence has
been presented to satisfy me of any efforts made to locate employment in
Canada. I am not satisfied that you are a bona fide temporary worker. You have
not satisfied me that you will leave Canada by the end of the period authorized
for your stay.
The officer recorded the following in the Computer
Assisted Immigration Processing System (CAIPS) notes, dated November 10, 2010:
· THE APPLICANT HAS FAILED TO PROVIDE EVIDENCE OF ANY LCP RELATED
EMPLOY IN CDA. SHE HAS ADMITTED IN PREVIOUS FOSS NOTES TO INTENTIONALLY
MISREPESENTING [sic] HERSELF
(ENCOURAGED BY HER RECRUITER). SHE HAS ACKNOWLEDGED THAT SHE WAS AWARE SHE
NEEDED TO WORK IN CDA TO MEET THE REQUIREMENTS FOR THE WORK PERMIT7 [sic] LIVE IN CAREGIVER PRORGRAM. SHE HAS
FAILED TO SATISFY ME THAT SHE HAS BEEN A BOANFIDE [sic] WORKER IN CDA SINCE JUN2007. I HAVE TAKEN INTO CONSIDERATION THE
TREATMENT SHE HAS DESCRIBED FROM HER RECRUITER. HOWEVER, THE APPLICANT HAS
INDICATED IN FORMAL INTERVIEW WITH ETOBICOKE THAT SHE WAS AWARE OF THE PROGRAM
REQUIREMENTS REGARDING EMPLOYMENT. SHE HAS NOT PROVIDED EVIDENCE TO SATISFY ME
THAT SHE MADE ANY EFFORTS TO FIND EMPLOYMENT ON [sic] CDA.
8 The
applicant challenges the decision on a number of grounds; however, in my view,
it is necessary to deal only with whether the officer's decision was reasonable
and I agree with the applicant that it was not.
9 In
Nazir v Canada (Minister of Citizenship and Immigration), 2010 FC 553, Justice de Montigny stated at paragraph 20:
"Visa officers assessing live-in caregiver permits have a duty to take
into consideration an applicant's explanation and to explain why they reject
such explanations." In this case, the officer paid no more than
lip-service to the applicant's explanations for the irregularities in her work
history since arriving in Canada, namely, that she had been a victim of a
fraud.
10 The
officer acknowledged in cross-examination that in making her decision she
relied heavily on the FOSS notes; however, I find that most of the findings
upon which the officer based her decision were made without regard to that evidence.
The officer found in her decision that: (i) there was no explanation for the
applicant's change and termination of employers or duration of employment in
Canada; (ii) there was insufficient evidence to satisfy the officer of any efforts she made to locate employment in
Canada; and (iii) the applicant had not proven that she was a bona fide worker in Canada since June 2007.
11 The
FOSS notes contain a detailed account of the applicant's story, including: her
arrival in Canada; her discovery that she did not have the position she was
promised; her efforts to find other employment; and a list of all her places of
employment since arriving in Canada. The first two findings listed above are
directly contradicted by a review of the record.
12 The
officer's finding that the applicant had not proven that she was a bona fide worker since June 2007 is
especially puzzling as the applicant did not claim to have been a bona fide worker since 2007. She explained
that the job for which she received her initial work permit turned out not to
exist. She also explained that she had been continually misled by Ms. Malab
about the legality of working outside her permit, and about the proper process
to obtain permanent residence. I can only conclude from the officer's reasons
that she failed to consider the applicant's explanations that were in the FOSS
notes she consulted. As a consequence, I find that the officer's findings were
made without regard to the material before her, and the decision must be set
aside.
13 Neither
party proposed a question for certification. There is none on the facts of this
application.
JUDGMENT
THIS COURT'S JUDGMENT is that this application is allowed, the decision of the Non-Immigrant
Officer of the Consulate General of Canada in Buffalo, New York, dated November
10, 2010, refusing the applicant's application for a work permit under the
live-in caregiver program is set aside, and her application is referred to
another officer for a redetermination. No question is certified.
ZINN J.
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