Date: 20000215 Docket: IMM-191 4-99
BETWEEN:
EVANGELINA LALUNA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[11 This is an application for judicial review pursuant to section 82.1 of the Immigration Act' (the Act) against the decision rendered by an immigration officer refusing her application for permanent residence under the Live-in Caregiver in Canada Class (LCCC).
L.R.C. 1985, c. I-2.
Page: 2
[21 The applicant arrived in Canada on September 30, 1995 and was issued a work authorization as a live-in caregiver. However, upon arrival at the employer, the applicant was informed that her services would only be required in March 1996.
[31 The applicant thus found a new employer, Ellen Coopersmith, who filled out the necessary forms for offer of employment on October 20, 1995. These were received by the Canada Employment Centre (CEC) on October 24, 1995.
[41 The applicant's new employer eventually received a letter dated January 9,1996 from the CEC and the ministère des Communauté culturelles et de l'immigration (MCCI) confirming the employment validation.
[51 On February 14,1996 the applicant received a new employment authorization.
[61 The applicant was then informed by her employer on June 13, 1997 that her services as a live-in caregiver were no longer necessary.
Page: 3
[71 The applicant found a new employer, Julia Reitman in October 1997. The employer completed and sent the necessary forms for employment to Human Resources Development Canada (HRDC) which they received on or around November 27, 1997.
[81 In March 1998 the applicant received a letter from the Case Processing Centre (CPC) in Vegreville, Alberta informing her that her application for employment authorization was transferred to the CICMontreal.
[91 After an interview in April 1998 with the Canada Immigration Centre in Montreal, the applicant was issued a new employment authorization.
[101 On around January 5,1999 the applicant forwarded an application for landed immigrant status to the CPC in Vegreville including a letter explaining why she had only accumulated twenty-one months of work experience as of September 30, 1998 instead of the required twenty-four months.
[111 The application for permanent residence was refused on the ground that the applicant had not satisfied the requirements set forth in the Act and
Page: 4
in the Immigration Regulations2 (Regulations) concerning the length of time she was employed as a live-in caregiver since her admission to Canada.
[121 The purpose of the Live-in Caregiver Program was emphasized by
Jerome A.C.J., in the Turingan v. Minister of Employment and Immigration 3
wherein he stated:
[...] it should be recognized that the primary purpose of the Live-in Caregiver Program is to encourage people to come to Canada to fill a void which exists in our labour market. As consideration for their commitment to work in the domestic field, the Program's participants are virtually guaranteed permanent residence status provided that thev work the required 24 month period. The immigration officer, therefore, has limited discretion to refuse permanent residence status once it has been determined that the participant has worked the required 24 months.' (emphasis added).
[131 In the case at bar, contrary to the argument raised by the applicant, the Turingan5decision does not support the contention that the immigration officer has any discretion where the live-in caregiver does not comply with the 24 month requirement. In fact, it underlines the necessity of meeting the statutory requirement. Considering the clarity of the requirements set out in
| 2 |
SOR/78-172, section 2(1). |
| 3 |
(1993) 72 F.T.R. 316. |
|
|
/bid. at p. 317. |
| 5 |
Supra note 3. |
Page: 5
both the Act and the Regulations, I am of the view that the officer correctly applied the Regulations.
[141 The applicant further submits that in circumstances where the delay is due to the respondent, the officer has a residual discretion to review the
matter under subsection 114(2) of the Act. I cannot accept this argument.
[151 It appears that the applicant has confused the various recourses
available under the Act. In the present circumstances, the Act provides two distinct mechanisms to facilitate landing in Canada. First, pursuant to paragraph 11 4(1)(e) of the Act, a person who meets the requirements in respect to the Live-in Caregiver in Canada Class may be granted landing in Canada. Second, subsection 114(2) of the Act outlines a distinct mechanism for application for permanent residence, which may be processed from within Canada. It is this provision that confers a power of discretion to an immigration officer evaluating humanitarian and compassionate considerations of a case.
[161 Moreover, the officer in the present instance is exercising a ministerial duty, and accordingly, no discretion exists. This ministerial function is characterized in doctrine as "a duty, the discharge of which involves no
Page: 6
element of discretion or independent judgment".s Thus, it is clear that the officer in the present case did not have the authority to evaluate the considerations submitted by the applicant.
[17] Of course, it is possible for the applicant to make a humanitarian and
compassionate application, and indeed, such an application must be
accompanied by a fee as provided by section 2 of the Immigration Act Fees
Regulations. This payment constitutes a sine qua non condition of the
Regulations. Joyal J. summarizes this well in Bula v. Canada (Minister of
Citizenship and Immigration)':
The respondent contends that an application cannot be considered unless it is accompanied by the required fees. This interpretation is based on the decision in Maharal v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 205 (T.D.), in which Mr. Justice Teitelbaum dealt with s. 3 of the Immigration Act, 1976 Fees Regulations, SOR/86-64, which clearly states that the fees are payable at the time the application is made. That principle is also supported by ss. 3.1(1), 4(1), 5(1), 6(1), 8(1) and 9(1) of those Regulations.
The rule is also repeated in a pamphlet published by the respondent which clearly states: "the processing fee must be submitted with your application".
It may therefore be concluded that payment of the application fee is a condition sine qua non that admits of no exception. This condition is one that some people might find harsh, not to say punitive. However, the wording of the Act does not seem to allow room for any more liberal interpretation or any interpretation more advantageous to the applicant.
b
de Smith, Woolf & Jowell, Judicial Review of Administrative Action (London: Sweet & Maxwell, 1995) at 1004.
(1997) 130 F.T.R. 81.
Page: 7
I would add that the rule does not create an anomaly. The rule is made plain in each of the subsections cited supra, and it imposes an obligation to pay the fees at the time the application is made.'
[18] Consequently, the application for judicial review is dismissed.
[19] Counsel for the applicant has requested that the following question be
certified
Does the immigration officer seized with an application for landing made by a person who came into Canada as a live-in caregiver, have the discretionary power to study the said application pursuant to subsection 114(2) of the Immigration Act without further notice or processing fees where the applicant fails to meet the technical definition of "Member of the live-in caregiver class"?
[20] The court is not convinced that this is a serious question of general
importance. Therefore, the Court will not certify the question.
Danièle Tremblay-Lamer JUDGE
MONTRÉAL, QUÉBEC February 15, 2000.
8
Ibid. at 83-84.
FEDERAL COURT OF CANADA
TRIAL DIVISION
5
Date: 2000021'4
Docket: IMM-1914-99
BETWEEN:
EVANGELINA LALUNA
Applicant
-and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1914-99
STYLE OF CAUSE: EVANGELINA LALÜNA
Applicant
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: February 15, 2000
REASONS FOR ORDER OF THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
DATED: February 15, 2000
APPEARANCES:
Mr. Vonnie Rochester for the Applicant
Mr. Michel Pépin for the Respondent
Page: 2
SOLICITORS OF RECORD:
VONNIE ROCHESTER
Montreal, Quebec for the Applicant
Morris Rosenberg
Deputy Attorney General for Canada
Ottawa, Ontario for the Respondent