Date: 20010531
Docket: IMM-1045-00
Neutral Citation: 2001 FCT 554
Ottawa, Ontario, this 31st day of May, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
EMERITA YCASAS
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
[1] This is an application for judicial review, brought pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision made by an immigration officer of the Case Processing Centre dated December 13, 1999, wherein the applicant's permanent residence application under the live-in caregiver class was refused.
[2] The applicant seeks an order for a writ of certiorari quashing the decision of the Case Processing Centre dated January 19, 2000 [should be December 13, 1999] which refused the applicant's permanent residence application under the live-in caregiver class; an order for a writ of mandamus compelling an immigration officer to reassess her application for permanent residence; and other relief considered just and equitable in the circumstances.
Background Facts
[3] The applicant, Emerita Ycasas, is a citizen of the Philippines who submitted an application for permanent residence under the live-in caregiver class in 1996. She had been legally working in Canada as a live-in caregiver since 1993, but her dependent daughter remained in the Philippines. By letter dated January 2, 1997, Citizenship and Immigration Canada ("CIC") advised the applicant that she had received approval-in-principle. CIC informed the applicant that her daughter would be contacted within six months by an overseas visa officer to complete the required checks.
[4] By letter dated March 15, 1999, the applicant was advised that the visa officer had been unable to obtain the required documents from her daughter at the address provided. The applicant was also asked by CIC to contact her daughter and request that she comply with the visa officer's requests. The applicant was told her file may otherwise be closed.
[5] By letter dated June 7, 1999, the applicant was advised that her daughter did not comply with the visa office's request for information. The letter also included copies of the criteria in subsection 6(8) and section 19 of the Act. The applicant was further advised that her application for permanent residence may have to be refused as "you and/or your dependant(s) do not appear to meet the Immigration requirements." The applicant was given 60 days to make written submissions in relation to this matter.
[6] The applicant responded by letter dated July 18, 1999. The applicant stated she spoke to her daughter and that her travel documents would be ready soon for presentation at the Canadian Embassy in the Philippines. The applicant requested another 60 days for her daughter to complete that process.
[7] The applicant received a letter dated August 27, 1999, authorizing her to remain in Canada under terms and conditions. The letter also acknowledged receipt of her July 18, 1999 letter and stated:
We have advised the visa office that you have been in contact with your daughter. Please ask your daughter to contact the visa office in Manila and take the steps required by that office.
[8] By letter dated December 13, 1999, the applicant was informed by CIC that her application for permanent residence had been refused. The letter states in part:
In order to become a permanent resident under the Live-in Caregiver in Canada Class, you and your dependants, if any, must comply with requirements as specified in the Immigration Regulations for this class.
. . .
Since your daughter Maria Teresita Tangonan Ycasas has not presented evidence that she is able to comply with this requirement, your application for permanent residence as a member of the Live-in Caregivers Class in Canada is refused.
[9] In response, the applicant sent a letter to CIC dated January 2, 2000, which stated the following:
I received your letter refusing my application for permanent residence with my daughter Maria Teresita Tangonan Ycasas. Your refusal is based on my daughter not being able to present evidence to comply with requirements for permanent residence.
I am therefore changing my application to include only myself and please advise me on the procedures I have to follow in order to comply with the requirements.
[10] CIC replied by letter dated January 19, 2000, recommending that the applicant apply for landing under humanitarian and compassionate grounds. CIC also advised the applicant to call if she required further assistance.
[11] On March 1, 2000, the applicant obtained counsel and filed an application for leave and for an extension of time to commence an application for judicial review of the December 13, 1999 decision. By order dated October 10, 2000, Mr. Justice Pinard granted leave and the judicial review was commenced.
Applicant's Submissions
[12] In essence, the applicant submits the respondent breached the duty of procedural fairness by failing to apprise her of the documentation and other requirements her dependant daughter had to provide. The applicant submits a duty to provide the basic information on the methods of application is owed by the government so that applicants can decide how to proceed. Choi v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 763 (F.C.A.) is offered in support of this submission. The applicant also submits the duty of fairness was owed primarily to her and not to her dependant daughter, as she was the applicant seeking entry to Canada.
[13] The respondent had a duty, in the applicant's submission, to advise her of concerns so that she could disabuse them. A failure to do so amounted to an error in law according to the applicant. The applicant cites Hussain v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 203 (F.C.T.D.) and Chou v. Canada (Minister of Citizenship and Immigration) (1998), 148 F.T.R. 245 (F.C.T.D.) in support of this argument.
Respondent's Submissions
[14] The respondent submits a visa officer need not advise an applicant of his or her concerns if they stem from the applicant's failure to meet the criteria for admission. In Choi, supra, the Court of Appeal addressed the respondent's duty to inform applicants as to how they can apply for permanent residence. The Court held that the respondent had a duty to supply that information correctly. The respondent argues the Court did not hold that applicants had to be informed of the requirements to be met in order to qualify for permanent residence in a certain class. The following passage from pages 769 to 770 of Choi, supra, is offered in support of the respondent's argument:
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 options, 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.
In Hussain and Chou, supra, the Court found a breach of the duty of fairness because the visa officers did not advise the applicants sufficiently of their concerns about job duties. The respondent submits fairness in these cases required disclosure to the applicants of concerns relating to their job duties, concerns that could not have been known to the applicants.
[15] Concerns about an applicant's ability to meet the criteria for admission, in the respondent's submission, need not be disclosed. In the case at bar, the respondent argues the immigration officer's concerns related to the applicant's ability to satisfy the regulatory criteria. The respondent submits the onus was upon the applicant to know what those criteria are and she is not entitled to disclosure of these concerns. Yu v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 176 (F.C.T.D.); Parmar v. Canada (Minister of Citizenship and Immigration) (1997), 139 F.T.R. 203 (F.C.T.D.) and Ashgar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091, IMM-2114-96 (August 21, 1997) (F.C.T.D.) are offered in support of this argument.
[16] The respondent argues the applicant's daughter was given a copy of the information she had to provide to establish her admissibility. These requirements are general and the applicant was required to meet them as well. Thus, the respondent argues the applicant cannot claim to not know the information that was required of her daughter since very similar if not the same documentation was requested from her.
[17] The respondent submits the duty of fairness was met and that CIC was not required to advise the applicant that her daughter did not meet the criteria for admission. The respondent further submits the applicant was afforded a full opportunity to satisfy the criteria for admission since she was advised her daughter did not provide the requested information. Moreover, CIC extended the time to provide the required information. Additionally, the respondent submits the applicant could determine the type of documentation her daughter needed to submit from the June 7, 1999 letter.
[18] The respondent submits the applicant's daughter was given a list of the information required and mailed provisions of the Act and Immigration Regulations, 1978, S.O.R./78-172, to indicate that more than travel documents were necessary.
Issue
[19] Should the immigration officer have dismissed the applicant's application?
Relevant Statutory Provisions
[20] The relevant provisions of the Immigration Act state as follows:
| 6.(8) Where an immigrant is of a prescribed class of immigrants for which the regulations specify that the immigrant and any or all dependants are to be assessed, the immigrant and all dependants may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant and the dependants who are to be assessed meet, collectively, (a) the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant and all dependants will be able to become successfully established in Canada, as determined in accordance with the regulations; or (b) the landing requirements prescribed by regulations made under paragraph 114(1)(e). |
6.(8) Si l'immigrant appartient à une catégorie pour laquelle les règlements prévoient que le cas de l'immigrant et de certaines ou toutes les personnes à la charge de celui-ci doit être examiné, l'immigrant et les personnes à sa charge ne peuvent se voir octroyer le droit d'établissement que si l'agent d'immigration est convaincu que l'immigrant et les personnes à sa charge dont le cas doit être examiné satisfont collectivement_: a) soit aux normes de sélection réglementaires visant à déterminer s'ils peuvent ou non réussir leur installation au Canada, au sens des règlements, et si oui, dans quelle mesure; b) soit aux exigences relatives à l'établissement prévues par les règlements d'application de l'alinéa 114(1)e). |
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And the relevant provisions of the Immigration Regulations state:
| 11.2 The following classes are prescribed as classes of immigrants for the purposes of subsections 6(5) and (8) of the Act: (a) the live-in caregivers in Canada class; (b) the post-determination refugee claimants in Canada class; and (c) [Repealed, SOR/97-182, s. 4] (d) the undocumented Convention refugee in Canada class. 11.3 A member of the live-in caregivers in Canada class and the member's dependants, if any, are subject to the following landing requirements: (a) the member must not have been admitted to Canada as a live-in caregiver by reason of any misrepresentation of the education, training or experience requirements referred to in paragraph 20(1.1)(a) or (b), whether the misrepresentation was made by the member or by another person; (b) the member must not be, and no dependant of the member is, a person described in section 19 of the Act, as determined by an immigration officer pursuant to subsection 6(8) of the Act; (c) the member must have submitted an application for landing to an immigration officer; and(d) where the member or a dependant of the member was the subject of an inquiry under the Act, a conditional removal order or removal order must not have been made against the member or dependant or, if such an order was made, it must have been quashed. |
11.2 Sont des catégories réglementaires d'immigrants pour l'application des paragraphes 6(5) et (8) de la Loi: a) la catégorie des aides familiaux résidant au Canada; b) la catégorie des demandeurs non reconnus du statut de réfugié au Canada; c) [Abrogé, DORS/97-182, art. 4] d) la catégorie des réfugiés au sens de la Convention se trouvant au Canada sans pièces d'identité. 11.3 Les exigences relatives à l'établissement d'un aide familial résidant au Canada et des personnes à sa charge, le cas échéant, sont les suivantes: a) il n'a pas été admis au Canada à titre d'aide familial résidant par suite d'une fausse indication sur les études, la formation ou l'expérience exigées par les alinéas 20(1.1)a) ou b), même si cette indication est le fait d'un tiers; b) ni lui ni aucune des personnes à sa charge n'appartiennent à une catégorie visée à l'article 19 de la Loi, d'après ce qu'en conclut l'agent d'immigration en application du paragraphe 6(8) de la Loi; c) il a soumis sa demande d'établissement à un agent d'immigration; d) dans le cas où l'aide familial résidant au Canada ou une personne à sa charge a fait l'objet d'une enquête menée en vertu de la Loi, une mesure de renvoi ou une mesure de renvoi conditionnelle n'a pas été prise contre l'un ou l'autre ou, si une telle mesure a été prise, elle a été annulée. |
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Analysis and Decision
[21] This application by the applicant was for herself to be admitted as a permanent resident of Canada under the live-in caregiver class and for her dependant daughter, Maria Teresita Tangonan Ycasas.
[22] The applicant's daughter did not provide the necessary information to the respondent to establish that she met the requirements of the Act for permanent residence in Canada. It would appear from the documents that the applicant desired to have her daughter come to Canada but the daughter, for other reasons, wished to stay in the Philippines. As a result, the applicant's application did not move forward due to the unavailability of the daughter's information. The applicant bought as much time for her daughter as she could, but in the end her application was refused as it covered both her and her daughter.
[23] The file indicates that the applicant's application received approval in principle, then later her application for permanent residence was refused due to the lack of documentation from her daughter.
[24] The respondent has also advised the applicant that she can apply for landing under the "humanitarian and compassionate cases". There is a further fee for this application.
[25] There is no doubt that the respondent's officials gave the applicant every opportunity to have her daughter's documentation presented. However, I see this as a situation where a caring mother was valiantly attempting to have her daughter come to Canada with her.
[26] I am of the opinion that at some point in the process, the immigration officer, along with informing the applicant that her application could be dismissed, should have told her that she could have her daughter deleted from the application and have her own application processed. The failure to so do is, in my opinion, a breach of procedural fairness in this situation where the applicant's own application was approved in principle.
[27] I note that both section 11.3 of the Immigration Regulations, supra and subsection 6(8) of the Immigration Act, supra make reference to "any" dependants. In this case, the applicant need not have any dependants assessed.
[28] I therefore set aside the decision of the immigration officer dated December 13, 1999 and conclude that the applicant's application for permanent residence should be processed by the respondent.
ORDER
[29] IT IS ORDERED that the decision of the immigration officer dated December 13, 1999 be set aside and the applicant's application for permanent residence be processed by the respondent.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
May 31, 2001