Date: 20021126
Docket: IMM-1566-01
Neutral Citation: 2002 FCT 2005
Entre:
CARMELITA GARABILEZ
Demanderesse
et
MINISTRE DE LA CITOYENNETÉ
ET DE L'IMMIGRATION
Défendeur
REASONS FOR ORDER
PINARD J.:
This is an application for judicial review with respect to the decision of Visa Officer Carol Cackovic (the "officer") of the Canadian Consulate General in Buffalo, United States of America, dated March 7, 2001, in which she refused the applicant's application for permanent residence in Canada because she did not meet the requirements of subsection 20(1.1) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations"). The officer found that the applicant comes within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
The applicant, Carmelita Garabilez, filed an application for permanent residence in Canada under the live-in caregiver programme, governed by subsection 20(1.1) of the Regulations. The applicant was interviewed by the officer on March 7, 2001.
The applicant has completed four years of high school and a one year secretarial programme, both in the Philippines.
In her letter conveying the decision under review, the officer wrote:
After careful and thorough consideration of all aspects of your application including the supporting information provided and the information we discussed at your interview on Wednesday March 7, 2001, I am not satisfied that you meet the requirements of R20(1.1) as defined by the Immigration Regulations.
You also did not satisfy me that you have successfully completed a course of study equivalent to successful completion of Canadian secondary school.
You therefore come within the inadmissible class of persons described in paragraph 19(1)(d) of the Act . . .
The relevant section of the Act reads as follows:
19. (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
[. . .]
(d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.
19. (2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui :
[. . .]
d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire.
The relevant section of the Regulations reads as follows:
20. (1.1) An immigration officer shall not issue an employment authorization to any person who seeks admission to Canada as a live-in caregiver unless the person
(a) has successfully completed a course of study that is equivalent to successful completion of Canadian secondary school;
20. (1.1) L'agent d'immigration ne peut délivrer une autorisation d'emploi à une personne qui veut être admise au Canada en qualité d'aide familial résidant, à moins qu'elle ne réponde aux conditions suivantes :
a) avoir terminé avec succès des études d'un niveau équivalent à des études secondaires terminées avec succès au Canada;
The respondent submits that the documents attached to the applicant's affidavit as Exhibit "K" were not before the officer when she made her decision. Rouleau J. has stated that it "is well-established that it is not open to the Applicant to rely on evidence that was not before the visa officer in support of an application for judicial review" (Zheng v. Canada (M.C.I.) (2001), 13 Imm.L.R. (3d) 226 (F.C.T.D.)). Therefore, the applicant cannot rely on the documents included as Exhibit "K" to her affidavit in the present application.
In Chiu Chee To v. Minister of Employment and Immigration (May 22, 1996), A-172-93, the Federal Court of Appeal set out the standard of review for discretionary decisions by visa officers with respect to applications for immigration. This standard is the same as the one adopted by the Supreme Court of Canada in Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, where Mr. Justice McIntyre stated at pages 7 to 8:
. . . It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. . . .
The applicant submits that the officer fettered her discretion by relying on others to make a decision regarding high school equivalency which was incumbent on her alone to make. However, in reaching her decision, the officer considered the documents before her as well as the information from the Canadian Embassy in Manila. Because she was unfamiliar with the school system in the Philippines, she was obliged to seek such information from the local visa office, as indicated by Tremblay-Lamer J. in Ismael v. Canada (M.C.I.) (1999), 164 F.T.R. 309, at paragraph 16:
If the application had been properly assessed under the CCDO, the educational assessment may have been the key factor in the determination of the application. In a case such as this, where there is no evidence as to the visa officer's familiarity with the education system in the Applicant's country of origin, the visa officer should seek guidance from the local visa office or embassy, in this case Mozambique, as indicated in the OPM.
(See also Merchant v. Canada (M.C.I.), 2002 FCT 591, [2002] F.C.J. No. 781 (T.D.) (QL).)
Although the officer sought advice from the office in Manila, she reached her own decision based on the facts of the application before her. There is no evidence to suggest that the officer fettered her discretion in this case.
The applicant submits that the officer was ill prepared to conduct a proper analysis and to reach a judicious decision, as evidenced by her lack of knowledge of both the Canadian secondary school system and that of the Philippines. However, as I clearly stated in Cai v. Minister of Citizenship and Immigration (January 17, 1997), IMM-883-96, at paragraph 7:
It is well established that the onus is on the applicant to fully satisfy the visa officer of the existence of all of the positive ingredients in his or her application. Accordingly, provided that the visa officer does not act unfairly, and/or makes an error of law apparent on the face of the record in arriving at his or her decision (such as considering extraneous criteria not contained in the CCDO definition), that decision is entitled to a significant amount of curial deference (see Hajariwala v. Canada, [1989] 2 F.C. 79 (F.C.T.D.)). . . .
In this case, the applicant did not meet the onus placed on her, as she simply stated that a Quebec secondary school diploma required eleven years of education, and that she had completed eleven years of schooling in the Philippines. She did not provide any serious evidence to support her contention that her education was equivalent to a Canadian secondary education.
The applicant contends that the officer erred in law in interpreting "equivalent to Canadian secondary education" as meaning "equal" to Canadian high school education. However, there is no evidence that the officer made such an interpretation, as throughout her notes and in the refusal letter, she employs the word "equivalent". The applicant's argument on this point is unfounded. Even if the officer had used the word "equal", it is clear from the evidence that she determined what was considered to be an equivalent amount of schooling in the Philippines and applied that information to the evidence presented to her by the applicant. She did more than the "mere counting of years as a test of equivalency"(Mascarenas v. Minister of Citizenship and Immigration (May 10, 2001), IMM-3156-00, 2001 FCT 461, at paragraph 8) which would have constituted a reviewable error. The officer applied the correct analytical approach to the determination of equivalency.
For the reasons given above, I am of the opinion that the officer did not commit a reviewable error in her processing of the application. The application for judicial review is, therefore, dismissed.
JUDGE
OTTAWA, ONTARIO
November 26, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1566-01
STYLE OF CAUSE: CARMELITA GARABILEZ c. MINISTRE DE LA CITOYENNETÉ ET DE L'IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 24, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: November 26, 2002
APPEARANCES:
Me Sylvie Tardif FOR THE APPLICANT
Me Michèle Joubert FOR THE RESPONDENT
SOLICITORS OF RECORD:
Brownstein, Brownstein & Associés FOR THE APPLICANT
Westmount, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario