2013 FC 211, 2013 FC 211

IMM-4106-12 2013 FC 211 Ephraim Tiangha ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Tiangha v. Canada (Citizenship and Immigration) Federal Court, Mosley J.—Calgary, February 13; Ottawa, February 28, 2013. Citizenship and Immigration — Status in Canada — Permanent Residents — Judicial review of immigration officer’s decision refusing applicant’s request for permanent residence under live-in caregiver class — Although applicant meeting eligibility requirements, also undertaking additional work without authorization, not satisfying officer that exemption on humanitarian and compassionate (H&

C) grounds should be granted — Due to specific circumstances, on several occasions, applicant working without work permit, engaging in wrong type of work — Applicant inadmissible under Immigration and Refugee Protection Act, s. 41 for violating s. 30 as well as Immigration and Refugee Protection Regulations , s. 185 (b) — Whether immigration officer erring in law in finding applicant inadmissible to Canada for engaging in unauthorized work; whether making unreasonable H&C decision given evidence — Under Regulations, s. 200(3)(e)(ii), foreign national can obtain another work permit if work only unauthorized because not complying with conditions imposed under Act, s. 185(a), (b), or (c) — Applicant’s breach of Act, s. 185(

b) not creating permanent bar; applicant subsequently obtaining another work permit — Issuance of new work permit curing applicant’s previous breach; thus, applicant admissible to Canada by date when immigration officer assessing application — Officer’s conclusions on H&C request in present case not representing possible, acceptable outcome — Application allowed. This was an application for judicial review of an immigration officer’s decision refusing the applicant’s request for permanent residence under the live-in caregiver class.

Although the applicant had met the eligibility requirements, he had also undertaken additional work without authorization and did not satisfy the officer that an exemption on humanitarian and compassionate (H&

C) grounds should be granted. The applicant, a Filipino, came to Canada under the live-in caregiver program and is a registered nurse. When he arrived, he discovered that his employer was no longer able to hire him. He found an alternate employer and worked until his employer passed away. He then applied for permanent residence and began searching for another employer but was unemployed for several months drawing unemployment insurance. At that same time, the applicant, learning that his father in the Philippines was seriously ill, began working without a permit to help cover his father’s healthcare costs.

The applicant returned to the Philippines when his father died but, having found a new job, secured a temporary residence permit and a work permit before his departure. When he came back to Canada, his prospective employer had passed away and he started working without permission again to help pay for his father’s health and funeral costs. He eventually landed another caregiver job and was granted a work permit. The immigration officer found that, despite meeting the eligibility requirements for permanent residence as a member of the caregiver class, the applicant was inadmissible to Canada under

section 41 of the Immigration and Refugee Protection Act for having violated

section 30 thereof and paragraph 185 (

b) of the Immigration and Refugee Protection Regulations by working without authorization on multiple occasions. It was also found that the applicant had not provided sufficient evidence to justify a humanitarian and compassionate (H&

C) exemption under

section 25 of the Act; that the circumstances leading to his inadmissibility had not been unusual and undeserved. The issues were whether the immigration officer erred in law in finding that the applicant was inadmissible to Canada for having engaged in unauthorized work and whether he made an unreasonable H&C decision given the evidence. Held , the application should be allowed. Subparagraph 200(3)( e )(ii) of the Regulations states that a foreign national can obtain another work permit if the work was only unauthorized because it did not comply with conditions imposed under paragraph 185 ( a ), ( b ), or ( c ). The applicant had breached paragraph 185(

b) by engaging in the wrong type of work, for the wrong type of employer but this did not create a permanent bar, and in fact, he did subsequently obtain another work permit. There is little case law on subparagraph 200(3)( e )(ii) of the Regulations. The fact that this paragraph prevents a foreign national who has engaged in unauthorized work from getting a new work permit until six months have elapsed indicates that the bar is not indefinite and that a new permit may be obtained after that time period. Further, the fact that subparagraph 200(3)( e )(ii) provides that a new permit can be issued if the work was only unauthorized under paragraph 185(

b) due to being the wrong type of work and/or for the wrong employer suggests that such breaches are curable. The issuance of a new work permit cured the applicant’s previous breach and the applicant was admissible to Canada by the date when the immigration officer assessed his application. The officer could therefore have used his previous unauthorized work to found conclusions about credibility but could not use it to find him inadmissible.

As for the immigration officer’s H&C decision, the officer made no attempt to appreciate the difficulties the applicant was facing and drew unreasonable inferences about the options that were open to him. The record showed that after completing all the requirements of the caregiver program and submitting his application for permanent residence, he continually sought more jobs as a nurse-caregiver and only turned to manual labour to pay the unexpected and substantial expenses incurred by his father’s illness and funeral when he was unsuccessful in his search.

It was not reasonable, in particular, for the officer to have speculated that the applicant could draw on unlimited funding and free accommodation from presumed friends and relatives in Canada instead of working. The officer’s conclusions in this case did not represent a possible, acceptable outcome. STATUTES AND REGULATIONS CITED Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 25(1), 30 , 41 , 72(1) .

Immigration and Refugee Protection Regulations , SOR/2002-227, ss. 185( b ), 200(3) ( e ). CASES CITED applied: Ozawa v. Canada (Citizenship and Immigration) , 2010 FC 444 . distinguished: Damte v. Canada (Citizenship and Immgiration) , 2011 FC 1212 , 5 Imm. L.R. (4th) 175. considered: Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190; Smith v. Alliance Pipeline Ltd. , 2011 SCC 7 , [2011] 1 S.C.R. 160; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654; Russom v. Canada (Citizenship and Immigration) , 2012 FC 1311 , 421 F.T.R. 73.

APPLICATION for judicial review of an immigration officer’s decision refusing the applicant’s request for permanent residence under the live-in caregiver class. Application allowed. APPEARANCES Rekha P. McNutt for applicant. Camille Audain for respondent. SOLICITORS OF RECORD Caron & Partners LLP , Calgary, for applicant. Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment and judgment rendered in English by [ 1 ] Mosley J .: This is an application for judicial review pursuant to the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA), subsection 72(1) , of a decision by an immigration officer to refuse the applicant’s request for permanent residence under the live-in caregiver class. While Mr.

Tiangha had met the eligibility requirements, he had also undertaken additional work without authorization and did not satisfy the officer that an exemption on humanitarian and compassionate grounds should be granted. [ 2 ] For the reasons that follow, the application is granted. BACKGROUND [ 3 ] Mr. Tiangha came to Canada from the Philippines on September 30, 2006 under the live-in caregiver program. He is a registered nurse. Upon arrival, he discovered that his employer in Toronto was no longer able to hire him. His agency found him an alternate employer in Calgary, for whom he worked for the next 22 months.

After his employer passed away at the age of 100 in November 2008, Mr. Tiangha spent a further 2 months in Calgary assisting to wrap up the estate, time which Citizenship and Immigration Canada (CIC) agreed to count towards his required work experience hours. [ 4 ] Mr. Tiangha then applied for permanent residence and began searching for another employer. This was difficult as most employers prefer to hire a female caregiver. From February 2009 to January 2010, Mr. Tiangha drew unemployment insurance. He briefly found a new employer in January 2010 but the job fell through after a month. Mr.

Tiangha was then unemployed again from February 2010 to October 2010. [ 5 ] In early February 2010, Mr. Tiangha learned that his father was gravely ill. To help defray the $10 000 cost of hospitalization and surgeries in the Philippines, Mr. Tiangha began working without a permit, first caring for a client and then working as a farm labourer. His father died on October 11, 2010 and he returned to the Philippines for two months. Before departing, he had found a new position as a caregiver, so he was able to leave Canada having secured a temporary residence permit and a work permit.

Unfortunately, when he got back to Canada in December 2010, his prospective employer had passed away. [ 6 ] Mr. Tiangha was then without work again in December 2010. He started working without permission again, taking jobs as a gardener and house cleaner to support himself and to continue paying for his father’s final illness and funeral. In August 2011, he finally landed another caregiver job for an elderly person. A work permit was granted on November 22, 2011. DECISION UNDER REVIEW [ 7 ] On April 19, 2012, CIC Calgary refused Mr. Tiangha’s application for permanent residence.

The decision letter explains that Mr. Tiangha had met the eligibility requirements for permanent residence as a member of the caregiver class, having worked 4 162 eligible hours by September 2010, the conclusion of the four-year period during which he had to accumulate 3 900 hours. However, he was found to be inadmissible to Canada under

section 41 of the IRPA for having violated

section 30 of the IRPA and paragraph 185 (

b) of the Immigration and Refugee Protection Regulations , SOR/2002-227 (IRPR), by working without authorization on multiple occasions. The immigration officer also found that he had not provided sufficient evidence to justify an H&C [humanitarian and compassionate] exemption under subsection 25(1) of the IRPA. The circumstances leading to his inadmissibility had not been unusual and undeserved, and refusing to grant the exemption would not result in disproportionate hardship.

[ 8 ] The officer assessed that Mr. Tiangha could have found authorized work if he had tried harder and could have lived off friends and family in Canada while searching for jobs. The officer also noted that he had not provided enough evidence of establishment in Canada despite a lengthy stay in the country, that no children were affected, and that he had provided insufficient evidence of disproportionate hardship if he had to leave. In addition, he had demonstrated that he wanted to work in other fields than caregiving. ISSUES [ 9 ] The issues raised by this application are: 1.

Did the immigration officer err in law in finding that the applicant was inadmissible to Canada for having engaged in unauthorized work? 2. Did the immigration officer make an unreasonable H&C decision given the evidence? ANALYSIS Standard of Review [ 10 ] The standard of review for the issues noted above has been satisfactorily established by the jurisprudence: Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ( Dunsmuir ), at paragraph 57 . An administrative decision maker’s

interpretation of its own statute is owed significant deference ( Dunsmuir , at paragraph 54 ; Smith v. Alliance Pipeline Ltd. , 2011 SCC 7 , [2011] 1 S.C.R. 160, at paragraph 28 ; Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association , 2011 SCC 61 , [2011] 3 R.C.S. 654, at paragraph 30 ). Furthermore, an immigration officer's decision with respect to an H&C application involves questions of mixed fact and law: Russom v. Canada (Citizenship and Immigration) , 2012 FC 1311 , 421 F.T.R. 73, at paragraphs 11–13 . Both issues are therefore reviewable on the reasonableness standard.

Reasonableness is concerned with the justification, transparency and intelligibility of the decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes defensible in respect of the facts and law: Dunsmuir , at paragraph 47 . Did the immigration officer err in law in finding that the applicant was inadmissible to Canada for having engaged in unauthorized work? [ 11 ] The applicant argued that when he received a new work permit in November 2011, this cured his previous inadmissibility pursuant to paragraph 200(3) (

e) of the IRPR . Subparagraph 200(3)( e )(ii) of the IRPR states that a foreign national can obtain another work permit if the work was only unauthorized because it did not comply with conditions imposed under paragraph 185 ( a ), ( b ), or ( c ). The applicant had breached paragraph 185 (

b) by engaging in the wrong type of work, for the wrong type of employer, but this did not create a permanent bar, and in fact he did subsequently obtain another work permit.

The moment at which the inadmissibility had to be determined, the applicant submitted, was when the decision was made on permanent residence, in April 2012, and that by that point he was no longer inadmissible. [ 12 ] The respondent contended that when the applicant was given a temporary resident permit (TRP) on December 6, 2010, there is no evidence that he advised officials that he had contravened the conditions of his initial work permit by engaging in unauthorized work.

The TRP was thus not issued to overcome the fact that he had engaged in unauthorized work and could not cure the applicant’s previous inadmissibility. By extension, the new work permit could not cure his previous inadmissibility either. No authority was cited in support of this proposition. [ 13 ] There is little jurisprudence on subparagraph 200(3) ( e )(ii) of the IRPR . Neither party was able to assist the Court with decisions which address the question of whether a new work permit may, or may not, cure a previous breach as of the time the application is considered.

The fact that subparagraph 200(3) ( e )(ii) prevents a foreign national who has engaged in unauthorized work from getting a new work permit until six months have elapsed indicates that the bar is not indefinite and that a new permit may be obtained after that time period. Further, the fact that subparagraph 200(3) ( e )(ii) provides that a new permit can be issued if the work was only unauthorized under paragraph 185 (

b) due to being the wrong type of work and/or for the wrong employer suggests that such breaches are curable. [ 14 ] Mr. Tiangha did get a new permit, which was valid at the moment when the officer made the decision on his application for permanent residence. [ 15 ] In Ozawa v.

Canada (Citizenship and Immigration) , 2010 FC 444 , at paragraph 15 , this Court dealt with the legal effect of a restoration of temporary resident status, explaining that “[t]he Regulations provide that a restoration of one's temporary resident status has the legal effect of curing any breach of the length of stay requirement inherent in the original temporary resident visa.” I find that the issuance of a new work permit similarly cured the previous breach and that Mr. Tiangha was admissible to Canada by the date when the immigration officer assessed his application.

The officer could therefore have used his previous unauthorized work to found conclusions about credibility, but could not use it to find him inadmissible. Did the immigration officer make an unreasonable H&C decision given the evidence before her? [ 16 ] The applicant submits that the immigration officer made numerous errors of fact in her reasons for decision, repeatedly misinterpreted the evidence, lacked empathy, and failed entirely to appreciate the reality of the applicant’s situation. Her assessment of the H&C factors was therefore unreasonable. In Damte v.

Canada (Citizenship and Immigration) , 2011 FC 1212 , 5 Imm. L.R. (4th) 175 ( Damte ), at paragraph 34 , this Court commented that “the decision-maker's heart, as well as analytical mind, must be engaged.” [ 17 ] The respondent argues that a subsection 25(1) H&C exemption is not designed to be used as an alternate method of immigration into Canada. It is an exceptional and discretionary remedy. The person applying for it has the onus of satisfying the officer that his personal circumstances are such that the hardship of obtaining a visa from outside Canada would be unusual and undeserved or disproportionate.

The Court’s comments, at paragraph 34 of Damte , were obiter and did not form part of the reasons for that decision; furthermore, the facts in Damte are distinguishable from the present case. The IRPA and IRPR do not oblige an officer to express a

requisite level of empathy in response to the facts of H&C applications. The obligation is to properly weigh and assess the evidence and make a reasonable decision. [ 18 ] The respondent proposed that the immigration officer properly considered the applicant’s stated reasons for engaging in unauthorized work and found that they were self-serving, conflicting, and unsubstantiated. The officer also properly found that either the applicant’s brother, friends or other family members would have been able to support him at no cost while he sought authorized employment.

It was up to him to maintain his status until processing of his permanent residence application was complete. [ 19 ] I find that the officer made no attempt to appreciate the difficulties Mr. Tiangha was faced with and drew unreasonable inferences about the options that were open to him.

The record shows that after completing all the requirements of the caregiver program and submitting his application for permanent residence, he continually sought more jobs as a nurse-caregiver and only turned to manual labour to pay the unexpected and substantial expenses incurred by his father’s illness and funeral when he was unsuccessful in this search. He worked hard at a series of low-wage unskilled jobs which did not call for his nursing qualifications.

It was not reasonable of the officer to have speculated that the applicant could draw on unlimited funding and free accommodation from presumed friends and relatives in Canada instead of working, or to fail to understand that the debts resulting from his father’s final illness did not cease to exist upon his father’s death. [ 20 ] Despite the deference which is due, I find that the officer’s conclusions in this case do not represent a possible, acceptable outcome. [ 21 ] The parties were given time to propose questions for certification on the question of mixed fact and law which arose in this matter. [ 22 ] The applicant has proposed the following question: By virtue of s 200(3)(e)(

i) and (ii) of the Immigration and Refugee Protection Regulations , is a foreign national who is no longer inadmissible for obtaining a work permit because of past unauthorized work also no longer inadmissible for purposes of a permanent residence application based on the same provisions? [ 23 ] The respondent suggests that the Court certify this question: Is an applicant’s inadmissibility arising from his unauthorized work in Canada cured due to the fact that, subsequent to the unauthorized work but prior to the determination of the applicant’s application for permanent residence, a previous officer has issued a work permit to the applicant pursuant to s 200(3)(

e) IRPR ? [ 24 ] As I have found that the applicant succeeds on both grounds, an answer to either of the proposed questions would not be dispositive of an appeal. I, therefore, decline to certify a question. JUDGMENT THIS COURT’S JUDGMENT is that 1. the application for judicial review is allowed; 2. the April 19, 2012 decision by Citizenship and Immigration Canada determining that the applicant was inadmissible to Canada is set aside and the matter is returned for redetermination by a different officer in accordance with these reasons; and 3. no question is certified.