PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] In this proceeding the Applicant, Balbir Singh, challenges a decision of a Visa Officer made on December 22, 2004 by which his application for a work permit as a live-in caregiver was refused.
Background
[2] In 2004, the Applicant was offered a position as a live-in caregiver at the home of his sister and brother-in-law in Brampton, Ontario. The position involved looking after the needs of two young children for forty hours per week at an hourly wage of ten (10) dollars. This proposed employment was reviewed and approved by Human Resources and Skills Development Canada (HRSDC) but was also conditional upon the issuance of a work permit from Citizenship and Immigration Canada (CIC).
[3] The Applicant's request for a work permit pursuant to section 112 of the Immigration and Refugee Protection Regulations (Regulations) SOR-2002-227 was refused on the basis that he did not have the requisite training or work experience in the field of child care. It is common ground that the Applicant did not have sufficient formal training for a work permit, but he contests the determination that he lacked the necessary work experience.
[4] Since 1990, the Applicant's employment experience has been in the field of health care. In 1994, he successfully passed his examination in nursing and since that time he has been employed as a Ward Nurse at the Institute House of Charity, which is a well-known geriatric hospital in Vienna. Although the Applicant has a wealth of experience as a geriatric caregiver - a point the Respondent readily concedes - he presented no evidence of experience in the area of child care. It was because of that absence of child care experience that his application for a work permit was refused.
Issues
1. To what extent, if any, does section 112 of the Regulations require that an applicant for a work permit as a live-in caregiver have prior experience related to the individual characteristics of the proposed Canadian beneficiary?
2. In the application of section 112 of the Regulations, is there a requirement for a Visa Officer to qualitatively assess the transferable skills available to an applicant from prior work experience in meeting the needs of the proposed Canadian beneficiary?
Analysis
[5] For ease of reference section 112 of the Regulations is set out below:
| 112. A work permit shall not be issued to a foreign national who seeks to enter Canada as a live-in caregiver unless they (a) applied for a work permit as a live-in caregiver before entering Canada; (b) have successfully completed a course of study that is equivalent to the successful completion of secondary school in Canada; (c) have the following training or experience, in a field or occupation related to the employment for which the work permit is sought, namely, (i) successful completion of six months of full-time training in a classroom setting, or (ii) completion of one year of full-time paid employment, including at least six months of continuous employment with one employer, in such a field or occupation within the three years immediately before the day on which they submit an application for a work permit; (d) have the ability to speak, read and listen to English or French at a level sufficient to communicate effectively in an unsupervised setting; and (e) have an employment contract with their future employer.
|
112. Le permis de travail ne peut être délivré à l'étranger qui cherche à entrer au Canada au titre de la catégorie des aides familiaux que si l'étranger se conforme aux exigences suivantes: a) il a fait une demande de permis de travail à titre d'aide familial avant d'entrer au Canada; b) il a terminé avec succès des études d'un niveau équivalent à des études secondaires terminées avec succès au Canada; c) il a la formation ou l'expérience ci-après dans un domaine ou une catégorie d'emploi lié au travail pour lequel le permis de travail est demandé : (i) une formation à temps plein de six mois en salle de classe, terminée avec succès, (ii) une année d'emploi rémunéré à temps plein - dont au moins six mois d'emploi continu auprès d'un même employeur - dans ce domaine ou cette catégorie d'emploi au cours des trois années précédant la date de présentation de la demande de permis de travail; d) il peut parler, lire et écouter l'anglais ou le français suffisamment pour communiquer de façon efficace dans une situation non supervisée; e) il a conclu un contrat d'emploi avec son futur employeur.
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The definition of "live-in caregiver" is set out in section 2 of the Regulations and provides:
| "live-in caregiver" means a person who resides in and provides child care, senior home support care or care of the disabled without supervision in the private household in Canada where the person being cared for resides. |
« aide familial » Personne qui fournit sans supervision des soins à domicile à un enfant, à une personne âgée ou à une personne handicapée, dans une résidence privée située au Canada où résident à la fois la personne bénéficiant des soins et celle qui les prodigue. |
[6] It is clear from the Visa Officer's decision in this case that she interpreted section 112 of the Regulations as requiring that the Applicant have specific employment experience in the field of child care. In the result, the Applicant's acknowledged qualifications and experience as a caregiver in the field of geriatric nursing did not qualify him for a work permit. It is equally clear that because of the Visa Officer's interpretive decision she did not find it necessary to embark upon a pragmatic assessment of the Applicant's transferable skills as a nurse.
[7] The decision-making approach adopted here by the Visa Officer involves an issue of law related to the interpretation of section 112 of the Regulations. The Applicant argues that the work experience requirement in that provision should be interpreted broadly to include general experience as a caregiver without regard to the individual characteristics of the intended Canadian beneficiary. The Respondent contends that the words "experience, in a field or occupation related to the employment for which the work permit is sought" means that the prior work experience must be specific to the individual characteristics of the beneficiary or, in this case, to the care of children.
[8] This is not a situation where the Visa Officer was applying a legal principle to the factual circumstances at hand. Here the Visa Officer did not get to that stage because she refused the work permit solely on the basis of a legal interpretation of section 112. This issue is one of statutory interpretation; therefore, the standard of review is, in this case, correctness: see Hamid v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 2013, 2005 FC 1632 at paragraph 4.
[9] It seems to me that the language of section 112 is sufficiently ambiguous that it could support either of the interpretations advanced by the parties. Although they are not legally binding, CIC Operational Guidelines applicable to section 112 offer some limited assistance in understanding how the Department applies the eligibility criteria for issuing a live-in caregiver work permit. The applicable Guidelines, OP 14 (Processing Applicants for the Live-In Caregiver Program), deal both with the training and experience requirements and state at section 5.4:
5.4 Officers should assess the quality of the program taken and whether it is adequate in equipping the applicant to perform the duties required by the proposed job. Where there are training programs established primarily to provide caregiver training to meet our requirements, it will be necessary to determine their legitimacy as well as the adequacy of the training.
...
Training and experience must be in a field and occupation related to the employment sought. Potential live-in caregivers may have training or experience in early childhood education, geriatric care, pediatric [sic] or geriatric nursing or first aid, for example. Care giving experience in an institutional setting (daycare, crèche, hospital, senior citizens home, etc.) should be considered in assessing whether the applicant meets the experience requirement. [Emphasis added]
In addition, OP 14 section 5.5 offers the following advice to Visa Officers dealing with the assessment of caregiver training programs:
5.5 Live-in caregiver training should be similar to the training offered by Canadian community colleges providing training in childcare or other related fields.
...
There is no specific list of courses required by CIC, as CIC is not an education-regulating body. However, visa offices can assess the legitimacy, quality, adequacy and relevance of the training programs offered in their regions, including an assessment of whether the hours of classroom training are sufficient.
...
Note: Officers should request assistance from the visa office in the country where the training centre is situated in verifying the legitimacy of the centre and the substance of the training.
[Emphasis added]
[10] The above provisions suffer, to some degree, from the same lack of clarity which inflicts section 112. However, I am guided by the tenor of these provisions which suggests that it is not the labels that are attached to the training or experience factors that are instructive, but rather the relevant skills that one acquires against which work permit eligibility is to be measured. My view of this is strengthened by the reference in the Guidelines directing a Visa Officer to examine caregiving experience in an institutional setting, including hospitals.
[11] The adoption of a purposive approach to the interpretation of section 112 leads to the same result. Clearly what is intended by these provisions is that caregivers have the capacity to adequately perform the tasks expected of them. There is no question that a well-qualified nurse would have considerable general knowledge and experience in the field of caregiving. The fact that beneficiaries of that prior work experience may not have been children does not mean that such an applicant has no transferable skills which could be applied in a child care setting. The Record in this case suggests that the Applicant did enjoy a number of skills which could have been readily applied to the care of children including those of nutrition, hygiene, first aid, supervision, home care and social skills.
[12] What is required in the application of section 112 to any given fact situation is to assess the applicant's employment experience with a view to identifying the transferable skills that are available to the fulfillment of the proposed Canadian employment. It could very well be that in a single household there will be children needing typical care, along with elderly or disabled individuals whose needs may be different or unique. A too-rigid approach to the interpretation of the work experience or training requirements of section 112 could deprive a family of the support that this provision was intended to accommodate.
[13] Although there is little case authority dealing with section 112, I am assisted by the approach adopted by Justice Yves de Montigny in Ouafae v. Canada(Minister of Citizenship and Immigration) [2005] F.C.J. No. 592, 2005 FC 459. In that case, the applicant sought a live-in caregiver work permit under section 112 of the Regulations and claimed eligibility to look after children on the basis of prior work experience in Morocco as a teacher. There the respondent took a slightly different position in opposing the application for a work permit by asserting that the applicant lacked experience as a caregiver. Nevertheless, as in this case, the respondent did argue that section 112 should be narrowly construed. In rejecting the respondent's argument, Justice de Montigny examined the transferable skills that a teacher could bring to the work of a live-in caregiver and found them to be sufficient to fulfill the necessary criteria for a work permit. At paragraph 31, he listed those skills as follows:
As a result, in my view, the Applicant meets all of the criteria. The evidence shows she has been a teacher of primary-school-aged children for seven years. Thus, in all likelihood she has the required aptitudes for supervising and caring for children, instructing them in personal hygiene and social development, tending to their emotional well-being, disciplining them, organising activities to provide amusement, taking them to and from school, and maintaining a healthy environment in the home (some of the main duties of nannies and caregivers as described in the National Occupational Classification).
[14] To my thinking, this is the same approach that should have been taken to the Applicant's request for a work permit in this case. The Visa Officer should have considered the caregiving skills acquired by the Applicant during his more than ten (10) years of hospital nursing employment to determine if they would be adequate to meet the employment demands for the position he had been offered. It is not sufficient in assessing prior experience to focus solely upon the characteristics or age of the intended beneficiaries of care. What is required is a comparison of the Applicant's caregiving experience with the likely needs of the beneficiaries to determine whether a sufficient match exists to justify the issuance of a work permit. Indeed, it is difficult to believe that more than ten (10) years of experience as a hospital nurse would not result in the acquisition of many skills and aptitudes which would be readily applicable to the provision of child care in a home setting.
[15] This matter should be remitted to a different Visa Officer for reconsideration of the application on the merits because the Visa Officer erred in her interpretation of the requirements of section 112 of the Regulations.
[16] Counsel for the Respondent indicated that she would not require a question to be certified regardless of the disposition of this application. In light of the decision I have made, it is not necessary to certify a question on behalf of the Applicant.
JUDGMENT
THIS COURT ADJUDGES that this application is allowed with the matter to be remitted to a different Visa Officer for reconsideration on the merits.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1890-05
STYLE OF CAUSE: BALBIR SINGH
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, MAY 30, 2006
AND JUDGMENT: The Honourable Mr. Justice Barnes
APPEARANCES:
Wennie Lee FOR APPLICANT
Mr. John Pro
SOLICITORS OF RECORD:
Lee & Company
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT