Federal Court Decisions

     IMM-4666-96

BETWEEN:

     ELSA P. PEJE

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER AND ORDER

JEROME A.C.J.:

     This motion for reconsideration of an Order dated December 16, 1996, which

dismissed the applicant's request for a stay of a deportation order, and for judicial review came on for hearing before me at Toronto, Ontario on December 19, 1996, January 20, 1997 and January 27, 1997. On December 19, 1996, I ordered that the deportation order issued against the appellant be stayed. On January 20, 1997, I found that the decision that the applicant had overstayed her visitor's visa and that she had been unable to support herself required reconsideration. These reasons address whether the applicant should be granted a work permit and whether it should be granted on an expedited basis.

FACTUAL BACKGROUND

     The applicant is a citizen of the Philippines who came to Canada on December 27, 1990 under the Federal Domestic Program. The applicant was employed by various employers for a period of approximately seventeen months during her first three years in Canada. The Federal Domestic Program requires the completion of twenty-four months of work during the first three years of being in Canada. In February of 1994, the applicant developed health problems in the nature of an ulcerated stomach, sinus problems, and migraine headaches. After the applicant fell ill and became unable to work, she first relied on friends for aid and, after September, 1994, the applicant started to receive assistance from welfare.

     In the affidavit of the applicant sworn January 6, 1997 the following facts are stated regarding refusals by the respondent to issue work permits:

15.      I began to look for work again in December 1994 but I did not find anything until March 1995 when I found work with Ms. Kalyras. At that time, I applied for the renewal of my work permit and I began to work for her. My work permit request was turned down. I worked there for one week and after the permit was turned down, my job was terminated.

16.      I found work soon after that with Ms. Dori Espella and again applied for a work permit under her name. However, I later found out that the permit application was turned down because Ms. Espella did not get the job validated by the Employment Centre. I also found out that my permit request with Ms. Kalyras, as the employer, was also turned down because she too did not get the job validated by the Employment Centre.

17.      Other prospective employers who were willing to hire me provided that I was able to get approval from Immigration were Ms. Gucia Krueger and Mr. Nick Marrelli. However, Immigration turned down each request.

18.      I found another employer in July 1995 by the name of Donald Slessor. He applied for validation and in a letter from Immigration dated August 17, 1995, his job offer to me was validated. However, my application for a work permit was turned down. ...

19.      ... No one really cared to discuss with me the problems I experienced in securing work. ...

20.      I must state that I had never been counselled by anyone from Immigration Canada. I got advise from other Philippinoes [sic] who had completed the program. I was on my own.

SUBMISSIONS OF THE PARTIES

     The applicant submits that it is not open to the Minister to assert that the applicant should be required to leave Canada because she does not meet the standards of the domestic program when it was the Minister's failure to provide the applicant with information pertaining to the program requirements and its refusals to issue work permits which caused her to fall into difficulties.

     The respondent submits that the applicant is required to satisfy the program criteria and that her work permit applications should be dealt with in the ordinary manner without any special treatment.

ANALYSIS

     In Bernardez v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 203 at 207, I remarked:

As I previously stated in Turingan v. Minister of Employment and Immigration (1993), 72 F.T.R. 316 (T.D.), the purpose of the Live-in Caregiver Program [which on April 27, 1992 replaced the Foreign Domestic Program] is to facilitate the attainment of permanent resident status for foreign domestic workers and therefore, it is incumbent on the Immigration Department to adopt a flexible and constructive approach in its dealings with the Program's participants. Failure to do so undermines the purpose of the Program.

Similarly, this applicant appears to have been trapped in a situation where she was afraid to work without the required authorization and yet unable to obtain the necessary permit from the Minister. The Respondent surely must bear some portion of the responsibility for her failing to meet the conditions of the program.

     This application is, therefore, granted. The decision to disqualify the applicant under the domestic program is to be set aside and the matter of issuance of a work permit shall be given urgent consideration in conformity with the law and these reasons.                 

O T T A W A

March 7, 1997                      "James A. Jerome"

                             A.C.J.