Federal Court Decisions

                                                                                                                                             Date: 20020118

                                                                                                                                  Docket: IMM-1656-01

                                                                                                                     Neutral Citation: 2002 FCT 56

Between:

                                       ELEONORA ASUNCION CARAG

                                                                                                                        Applicant

                                                              - and -

                                       THE MINISTER OF CITIZENSHIP

                                                  AND IMMIGRATION

                                                                                                                    Respondent

                                                REASONS FOR ORDER

PINARD J.:

[1]         The applicant seeks judicial review of a decision by N. Chan, Immigration Counsellor (the "officer"), dated February 12, 2001, refusing her application for ministerial exemption on humanitarian and compassionate ("H & C") grounds pursuant to subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").

[2]         The applicant is a citizen of the Philippines. She has one brother who resides in Vancouver, British Columbia with his family. Since 1999, the applicant has not had any communication with her husband.

[3]         She arrived in Canada on May 18, 1997 under the Live-in-Caregiver Program ("LIC Program"). With authorization, she worked for Wendi Vaisler from June 1, 1997 until September 15, 1997.

[4]         The applicant discovered she was pregnant in July 1997. She discontinued working due to complications with her pregnancy. She had received a new employment authorization, but did not work on the advice of her physician. The applicant's daughter was born on December 30, 1997. Following the birth of her daughter, the applicant did not return to work. At the age of one year, the applicant's daughter was diagnosed with asthma.

[5]         The applicant was issued a third employment authorization on November 2, 1998. She worked for her employer Ms. Becky Lui until November 3, 1999.

[6]         A fourth employment authorization was issued to the applicant on October 25, 1999. She continued to legally work for Ms. Lui until the expiry of the employment authorization on May 18, 2000. She worked illegally for Ms. Lui until July 2000. At the time of the interview, she was working as a live-out nanny without employment authorization for Ms. Shiffman.

[7]         The applicant submitted her H & C application on April 7, 2000. She was interviewed by the officer on November 30, 2000 and her application was refused by letter dated February 12, 2001.

[8]         In Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, L'Heureux-Dubé J. determined, at pages 857 to 858, that the appropriate standard of review for decisions made under subsection 114(2) of the Act and section 2.1 of the Immigration Regulations, 1978, SOR/78-172, is reasonableness simpliciter:

. . . I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court - Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.

[9]         The applicant argues that the best interests of her child were not considered. On this subject, Justice L'Heureux-Dubé states the following at paragraph 75:

. . . The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children's best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children's interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines, the decision will be unreasonable.

[10]       As evidenced by the officer's decision, I believe that close attention was paid to the interests and needs of the child. As opposed to the officer in Baker, supra, Ms. Chan was not dismissive of the interests of the applicant's daughter. On the contrary, the following factors were considered: the impact on the child if the applicant's application were to be refused, the impact on the child if she were to return to the Philippines as well as the child's access to health care in the Philippines. I am therefore of the view that the officer's decision on this point was reasonable.

[11]       The applicant submits that the officer erred by indicating the fact that she entered Canada under the LIC Program as a negative factor. I believe that the applicant is, in reality, questioning the weight accorded by the officer to the evidence provided by the applicant.

[12]       In Vidal v. Canada (M.E.I.) (1991), 13 Imm.L.R. (2d) 123, Strayer J. at page 130 states the following:

I would observe in passing that it must follow as a corollary of the reasoning of Jerome A.C.J. in Yhap that an applicant cannot complain if an immigration officer fails or refuses to follow the Minister's guidelines. Nor can he complain if an immigration officer applies any factor in lieu of those in the guidelines as long as this is done in good faith and the factor is not wholly irrelevant to any conceivable view of humanitarian and compassionate considerations. Further, it is for the officer to decide if he is convinced of the truth of the applicant's assertions, unless perhaps he makes findings of fact which are clearly without regard to any material before him. It is not for the Court to sit in appeal on his findings of fact or his weighing of the various factors.

[13]       I feel that it was completely feasible for the officer to weigh the fact that the applicant originally entered Canada on the LIC Program considering at the time of the interview she was working without employment authorization, which is a criteria essential to this Program. Her entry into Canada on the LIC Program, the fact that the applicant did not meet the requirements of the twenty-four month time frame as well as the fact that she had been working without employment authorization are merely factors to consider in the overall assessment of whether the applicant's circumstances justify the exemption and do not automatically give right to the exemption. Furthermore, the questions of weight of evidence are the responsibility of the officer and cannot afford any legal basis upon which the Court can properly interfere (see Brar v. Minister of Employment and Immigration (May 29, 1986), A-987-84).

[14]       The applicant further submits that she should have been informed that it would be suitable for her to apply for permanent residence under the LIC Program. As well, the applicant argues that she should have been advised of the right to retain legal counsel. With regards to the first point, the applicant clearly sates in her affidavit that she was aware that her employment authorization would expire on May 18, 2000. Considering the fact that she was aware of this date, it would seem only logical that she had also read the remarks on the same authorization which clearly state that she would be eligible to apply for permanent residence after completion of twenty-four months employment. Secondly, prior to her interview with the officer, the applicant received on October 31, 2000 a letter informing her of the following:

If you require an interpreter you should arrange to bring one. Your counsel may not act as your interpreter.

Although the letter does not specifically indicate that the applicant should or may retain counsel, it is clear that a reasonable person reading this letter could easily come to the conclusion that counsel was not only an option, but permitted.

[15]       The applicant argues that the officer miscalculated the number of months the applicant had completed under the LIC Program, admitting that she worked as a caregiver for a period of nineteen months. I would not describe the conclusion in the decision that the applicant worked for "approximately eighteen months" as a miscalculation, but merely an approximate figure that does not negate the fact that the applicant did not work as a live-in caregiver for a total of 24 months as stipulated as a requirement at section 7 of the LIC Guidelines.

[16]       Moreover, the applicant alleges the officer erred by failing to take into account the overtime hours she had worked. In my opinion, no evidence was adduced by the applicant in support of this contention, therefore it must fail.

[17]       On the basis of the evidence submitted, I believe it was reasonable for the officer to conclude that the hardship discussed in Baker, supra, had not been established by the applicant in the present case.

[18]       For all the above reasons, the application for judicial review is dismissed.

                                                                         

       JUDGE

OTTAWA, ONTARIO

January 18, 2002