Palogan v. Canada (Minister of Citizenship and
Immigration)
Between
Elvira Ruth Marcos Palogan, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Elvira Ruth Marcos Palogan, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 969
2013 FC 889
Docket IMM-9680-12
Docket IMM-9680-12
Federal Court
Toronto, Ontario
Mosley J.
Heard: August 14, 2013.
Judgment: August 21, 2013.
Toronto, Ontario
Mosley J.
Heard: August 14, 2013.
Judgment: August 21, 2013.
(21 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 MOSLEY J.:-- The applicant seeks judicial
review of the decision of a Visa Officer in Manila, the Philippines, denying
her a work permit as a live-in caregiver.
BACKGROUND:
2 Ms.
Palogan, a citizen of the Philippines, was granted a work permit as a live-in
caregiver for 11 months from October 2007 and was hired by her brother-in-law
in Canada to look after his child. When that contract expired in September
2008, her employer was unable to continue to employ Ms. Palogan. She asked an
agency to find a new employer and to renew the work permit. She was then hired
by a sister-in-law but missed the 90 day window for submitting the work permit
application. The application was denied and Ms. Palogan was advised by the processing
centre to leave Canada immediately.
3 Ms.
Palogan then retained counsel and applied as an overseas applicant via New
York. That application was also denied and she was again advised to leave
Canada immediately. She applied a third time via the Buffalo visa office and
again was unsuccessful.
4 Ms.
Palogan ultimately left Canada on January 10, 2011 and applied again from the
Philippines. The decision to refuse that application is the subject matter of
this judicial review.
5 The
applicant is married and has a husband, children and siblings in the
Philippines. Her eldest daughter and other relations including her
parents-in-law and four of their children reside in Canada.
DECISION UNDER REVIEW:
6 The
decision letter from the Visa Officer consists of a form denial, then a
checklist on which the Officer has checked the very last box, "Other
reasons". The text says:
· You were told to leave Canada immediately by CPC Vegreville on
2009/03/07 as you were out of status in Canada. You remained in Canada until
January 2011. I am not satisfied that you will comply with Immigration laws in
Canada.
7 The
Computer Assisted Immigration Processing System [CAIPS notes] in the record
recount the applicant's immigration history. The notes also record that the
applicant's oldest daughter lives in the same city in Canada as her prospective
new employer and that six of the applicant's in-laws live in Canada,
"which loosenes ties to Phils [sic]." Finally, the notes say that "PA has shown disregard to
Immigration laws and directions. Not satisfied of BF's of applicant. Not
satisfied of any dual intent should PA be granted entry to Canada."
ISSUE:
8 The
sole issue is whether the officer's decision was reasonable. Central to that
issue is whether the officer erred in the finding concerning dual intent.
ANALYSIS:
Standard of review;
9 The
standard of review for assessments of applications for temporary work permits
has been satisfactorily determined by the jurisprudence to be reasonableness.
In Kachmazov v Canada (MCI),
2009 FC 53 [Kachmazov], Justice
Layden-Stevenson stated that:
· 8 The standard of review applicable to the
question of whether a visa officer erred in an assessment of an application for
a temporary work permit is that of reasonableness: Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9; Li v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 1625, 2008 FC 1284. The Court must not intervene
unless the decision falls outside the "range of possible, acceptable
outcomes which are defensible in respect of the facts and law: Dunsmuir at para. 47.
See also the comments of Justice de Montigny in Maxim v Canada (MCI), 2012 FC 1029, another
live-in caregiver case, at para 19.
· Did the officer err in the finding concerning dual intent?
10 As
explained by Justice Layden-Stevenson in Kachmazov, above, at para 15:
· ...a person "may have the dual intent of immigrating and of
abiding by the immigration law respecting temporary entry": Rebmann v. Canada (Solicitor General), [2005]
3 F.C.R. 285 (F.C.); Bondoc v. Canada (Minister of Citizenship and
Immigration), [2008] F.C.J. No. 1063.
11 The
live-in caregiver class is defined as a class of foreign nationals who may
become permanent residents on meeting the requirements in Part 6, Division 3,
section 110 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the "Regulations").
12 While
applicants under the live-in caregiver program enter Canada on temporary work
permits, it is expected that they will apply for permanent residence once they
have worked for the required two years.
13 This
is clearly stated in the program objectives set out in the Minister's
operational manual OP 14 Processing Applicants for the
Live-in Caregiver Program:
· 2. Program objectives
· 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 individuals to work and eventually apply for permanent residence
from within Canada.
· The LCP brings qualified temporary workers to Canada to provide
in-home child care, senior home support care or care of the disabled. The LCP
allows applicants to apply for permanent residence from within Canada after
being employed full-time as a live-in caregiver for at least 24 months or a total of 3,900 hours in a minimum of 22
months within the four years immediately following their entry into Canada
under the LCP.
14 The
officer need not, therefore, be convinced that the applicant wishes to return
to their country of origin at the expiry of their work permit. But the officer
must be satisfied that the applicant will not remain illegally in Canada if
they fail to meet the requirements and their application for permanent
residence is rejected: Kachmazov
at para 16.
15 Arrangements
of convenience to acquire status in Canada do not meet the objectives of the
program or the requirements set out in the Regulations. However, there is no legislative restriction precluding family
members from offering relatives jobs as live-in caregivers: Nazir v Canada (MCI), 2010 FC 553 at para 23.
The relationship between the applicant and the employer may be a factor that
the officer takes into account in assessing the bona
fide character of the contract: Duroseau
v Canada (MCI), 2008 FC 72 at para 19.
16 The
Supreme Court of Canada has instructed in Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland and Labrador
Nurses] at para 15 that a reviewing court should not
substitute its own reasons for those of the decision-making body but may, if
necessary, look to the record for the purpose of assessing the reasonableness
of the outcome.
17 In
this case, the CAIPS notes supplement the terse explanation provided in the
decision letter and reading the record as a whole, I find that the work permit
application was rejected for three reasons:
Ms. Palogan had a
history of failure to comply with immigration law and did not satisfactorily
demonstrate an intent to comply if the permit were to be granted on this
occasion;
She did not demonstrate
to the officer's satisfaction that she was a bona fide live-in caregiver
applicant; and
She did not demonstrate
her dual intent to both seek permanent residence and yet leave Canada at the
end of the authorized period.
18 The
applicant's circumstances are sympathetic. It appears clear that she wanted to
comply with the program in order to eventually bring in her husband and
children and had in fact worked as a live-in caregiver, albeit for a term too
short to qualify for permanent residence. However, she deliberately overstayed
when her work permit expired and three subsequent applications were denied. The
applicant contends that she now understands that doing so was a mistake and
declares her intent to comply with the requirements. However, the details of
her explanation for the overstay were not before the officer and the officer
cannot be faulted for failing to take them into consideration.
19 The
officer was not required to discuss every factor in favour of the application,
such as the strong familial ties the applicant maintained with the Philippines:
Newfoundland and Labrador Nurses,
above, at para 16. The applicant was not entitled to a work permit. This was a
discretionary decision and the officer's reasoning was transparent and
intelligible. There was reason to assess a much higher risk of overstay in the
future. The decision fell within the range of acceptable outcomes defensible on
the law and the facts.
20 Despite
the very able argument of counsel for the applicant, I am not satisfied that
there are grounds for the Court to intervene.
21 No
questions were proposed for certification.
JUDGMENT
THIS COURT'S JUDGMENT is that the application is dismissed. No questions are certified.
MOSLEY J.
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