Federal Court Decisions

Date: 20020425

Docket: IMM-1517-01

Neutral citation: 2002 FCT 469

Ottawa, Ontario, this 25th day of April 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                              MARGARITA ANDAL

                                                                                                                                                       Applicant

                                                                              - and-

                                  MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review pursuant to subsection 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, in respect of the decision of the immigration adjudicator of the Immigration and Refugee Board, Adjudication Division dated March 15, 2001, wherein the adjudicator made a deportation order against the applicant pursuant to subsection 32(6) of the Immigration Act, R.S.C. 1985, c. I-2, as amended.

[2]                 The applicant seeks an order setting aside the decision of the adjudicator, referring the matter back to a different adjudicator for redetermination in accordance with such directions as this Honourable Court considers to be appropriate.

Background

[3]                 The applicant, Margarita Patolot Andal, is a citizen of the Philippines who obtained a visitor visa through the Canadian Embassy in Rome. The applicant arrived at Pearson International Airport on July 5, 1999, where she was admitted to Canada as a visitor on a visa valid until August 31, 1999. The applicant subsequently obtained extensions of her visitor status in Canada, the last extension expiring on October 15, 2000.

[4]                 The applicant was originally destined to her maternal aunt in St. Catharines, Ontario. In support of her original visitor's visa, the applicant provided a letter of support from her employer in Greece where the applicant worked as a full-time house assistant.

[5]                 In August, 1999, the applicant applied for permission to work as a nanny in Canada through the Canadian Consulate in Buffalo, New York. The applicant's employment authorization was delayed due to complications receiving medical approval. To date, the applicant has not received authorization to work in Canada.

[6]                 The applicant describes herself as a professional nanny, having worked as a home care assistant in Greece since 1991.

[7]                 Prior to the hearing that gave rise to the decision that is the subject matter of this judicial review, immigration officials were informed by Ms. S. Anderson that the applicant had been working as a nanny in Canada without authorization, which is contrary to the Immigration Act, supra and the Immigration Regulations, 1978, SOR/78-172, as amended. The hearing was convened on March 8, 2001 before an immigration adjudicator of the Immigration and Refugee Board, Adjudication Division, to determine whether the applicant did engage in employment in Canada without valid and subsisting employment authorization as is required by subsection 18(1) of the Immigration Regulations, 1978, supra.

[8]                 Ms. Anderson claims to have been employing the applicant as a nanny since March or April, 2000, having been told by the applicant that she was a legal immigrant. The relationship between Ms. Anderson and the applicant went sour following an incident where a neighbour found one of Ms. Anderson's children unattended on the road at a time when the child was under the applicant's care. Ms. Anderson informed immigration services that the applicant was working in Canada without authorization.

[9]                 The applicant admits that she was introduced to Ms. Anderson through Select Nanny Services. The applicant admits looking after Ms. Anderson's two children and cleaning her house, though the applicant claims that she was not working as a nanny for Ms. Anderson but was instead gratuitously volunteering to help out a friend.

[10]            Among the documents provided by the applicant to support her application for employment authorization was an original diploma for a course in Science of Secretarial Medicine. The name on the diploma is different than what the applicant currently uses. The applicant provided an additional document dated 1997 which states that the applicant is also known as Margarita U. Patolot, Margarita Patolot, and Editha Patolot, and that the applicant has been known to use an alternate spelling for the name Patolot, which is Patulot. The applicant's alleged employer, Ms. Anderson, knows the applicant by the name Edith.

[11]            An assessment of the applicant's credibility played a role in the decision of the adjudicator as the applicant and the main witness, Ms. Anderson, provided differing evidence on the key question of whether the applicant was indeed employed in Canada. The decision stated in part, "After reviewing all of the evidence, I am persuaded on the balance of probabilities that Mrs. Anderson's testimony is more credible than that of Ms. Andal."

[12]            The decision of the adjudicator further contained the following conclusions:

I am satisfied that an employer/employee relationship existed between Mrs. Anderson and Ms. Andal from March 2000 until September 2000. That the activity and duties performed by Ms. Andal constitute employment as defined in the Immigration Act and that she engaged in such employment without a valid and subsisting employment authorization as required by Regulation 18(1). For these reasons Ms. Andal has ceased to be a visitor in Canada.

[13]            The adjudicator proceeded to determine whether or not a deportation order or a departure order would be issued to the applicant.

[14]            The adjudicator decided that a deportation order should issue. The decision of the adjudicator, on this point, stated in part:

. . . I believe you knowingly attempted to mislead me and it made it very difficult to render the decision. It required Mrs. Anderson to come forward to have to testify n this matter. I don't think that you're a person who can be trusted to simply leave on her own. You seem to be in a very desperate situation and you seem to want to stay here quite badly. I think it's reasonable, given all these circumstances, that the Minister be able to control your future admissions to Canada.

Applicant's Submissions

[15]            The applicant submits that the appropriate standard of review requires a probing examination of the decision and reasons.

[16]            The applicant submits that key evidence that strongly favoured the credibility of the applicant over Ms. Anderson was ignored by the adjudicator.

[17]            The applicant concedes that the issues rest on the credibility of the two main witnesses (the applicant and Ms. Anderson) in determining whether or not the applicant engaged in employment contrary to the Immigration Act, supra.

Respondent's Submissions

[18]            The respondent submits that the uncontradicted evidence before the adjudicator established that the applicant was put into contact with Ms. Anderson through an employment agency known as Select Nanny Services and this company recruits and finds placement for persons in the nanny profession.

[19]            The respondent submits that the adjudicator's finding is well supported that the applicant's version of the facts were untrustworthy and lacking in credibility.

[20]            The respondent submits that the applicant has not disclosed the existence of a reviewable error. The respondent submits that the applicant has not demonstrated that the adjudicator's assessment is perverse, capricious or without regard to the evidence.

[21]            Issues

1.          What is the standard of review for this Court to review the decision of the adjudicator?

2.          Did the adjudicator fail to consider seriously and fairly all of the information before him when he found that the applicant had engaged in employment as defined in the Immigration Act, supra?

Relevant Statutory Provisions, Regulations and Rules

[22]            Subsection 18(1) of the Immigration Regulations, 1978, supra states:

18. (1) Subject to subsections 19(1) to (2.2), no person, other than a Canadian citizen or permanent resident, shall engage or continue in employment in Canada without a valid and subsisting employment authorization.

18. (1) Sous réserve des paragraphes 19(1) à (2.2), il est interdit à quiconque, à l'exception d'un citoyen canadien ou d'un résident permanent, de prendre ou de conserver un emploi au Canada sans une autorisation d'emploi en cours de validité.

[23]            Subsection 2(1) of the Immigration Act, supra contains the following definition:

"employment" means any activity for which a person receives or might reasonably be expected to receive valuable consideration;

« emploi » Activité rétribuée, ou normalement susceptible de l'être.

[24]            Paragraph 26(1)(b) of the Immigration Act, supra states:

26. (1) A person ceases to be a visitor in Canada when . . . (b) without authorization, that person attends any university or college, takes any academic, professional or vocational training course or engages in employment in Canada;

26. (1) Emporte déchéance de la qualité de visiteur le fait_: . . . b) de suivre des cours de formation générale, théorique ou professionnelle notamment à l'université ou au collège, ou d'occuper un emploi au Canada, sans y être autorisé;

[25]            Paragraph 27(2)(e) of the Immigration Act, supra states:

[26]            Subsection 32(6) of the Immigration Act, supra states:

32. (6) Where an adjudicator decides that a person who is the subject of an inquiry is a person described in subsection 27(2), the adjudicator shall, subject to subsections (7) and 32.1(5), make a deportation order against that person.

32. (6) S'il conclut que l'intéressé relève d'un des cas visés par le paragraphe 27(2), l'arbitre, sous réserve des paragraphes (7) et 32.1(5), prend une mesure d'expulsion à son endroit.

Analysis and Decision

[27]            Issue 1

What is the standard of review for this Court to review the decision of the adjudicator?

The adjudicator had the benefit of hearing the testimony of the two main witnesses and was clearly in a better position than this Court to determine which of the witnesses was more credible. Accordingly, this Court should give considerable deference to the credibility finding of the adjudicator, and should only interfere with the adjudicator's finding if it is patently unreasonable.

[28]            Issue 2

Did the adjudicator fail to consider seriously and fairly all of the information before him when he found that the applicant had engaged in employment as defined in the Immigration Act, supra?

The credibility of the two main witnesses in the hearing, the applicant and Ms. Anderson, is the crucial issue in this application. The adjudicator found that Ms. Anderson's testimony was more credible than the applicant's testimony. The adjudicator gave reasons for his decision with respect to credibility. His reasons included the following:

After reviewing all of the evidence I am persuaded on the balance of probabilities that Mrs. Anderson's testimony is more credible than that of Ms. Andal. Mrs. Anderson provides detailed, specific information concerning Ms. Andal's employment with her. She testified in a candid, credible and trustworthy manner and her version of events make much more sense than that of Ms. Andal's. There was nothing to be gained by lying at this inquiry and I cannot see any reason why she would concoct the detailed evidence she provided.

Ms. Andal on the otherhand was less than candid and in my view deliberately attempted to mislead this inquiry. I do not believe she would look after the children of a total stranger over a six-month period of time simply out of the goodness of her heart. She is a professional nanny who shortly after arriving in Canada sought to remain here by submitting an application in Buffalo to get authorization to work as a nanny. She was a person without a source of income and had two children to support in the Philippines. Her application in Buffalo was stalled due to medical complications and this in all likelihood placed a great financial burden on her. I suspect, that being somewhat desperate she took the employment with Mrs. Anderson to generate a source of income until her application was approved. It would appear that Ms. Andal was not happy with Mrs. Anderson's lifestyle yet she continued to look after the children. If she was doing this a [sic] favor and she was unhappy wouldn't a reasonable person simply walk away. Ms. Andal didn't because I suspect she needed the money.

[29]            It is the function of the adjudicator to make findings on credibility. As long as the adjudicator assesses the material evidence and gives reasons for accepting one person's testimony over that of another, then it is not the role of this Court to interfere. I have reviewed the transcript of the hearing and I cannot find that the adjudicator made a reviewable error in finding Ms. Anderson's testimony to be more credible.

[30]            The applicant alleges that inconsistencies in witness testimony was ignored by the adjudicator. The applicant's memorandum at paragraph 20 states "Ms. Anderson stated that her common law spouse lived with her. He said under oath that he did not live with her."

[31]            The portion of the transcript, where Ms. Anderson was asked if her common law spouse lives with her, reads as follows:

Q.             What's your husband's name that you brought with you today?

A.             Helman Ledky (phonetic).

Q.             Does he reside with you?

A.             He does, common-law.

Q.             He lives in the same house?

A.             Correct. He stays a lot - - his parents are 80 years old and they live in Niagara-on-the-Lake and he stays quite a bit over there, helping them out.

[32]            Ms. Anderson's common law spouse, Helman Ledky, was also examined under oath at the inquiry. The portion of the transcript, where counsel for the applicant examined Mr. Ledky on this topic, reads as follows:

Q.             Do you reside with the lady seated behind me?

A.             I would say probably on a 50 percent basis.

Q.             Where is your main address?

A.             My main address, R.R. 6, Niagara Street, Niagara-on-the-Lake.

Q.             Okay. She said that you resided with her.

A.             I do.

[33]            In my view, there is no merit to the argument that the testimonies of Ms. Anderson and Mr. Ledky are inconsistent on this point.

[34]            Paragraph 21 of the applicant's memorandum states, "Ms. Anderson stated that her common-law spouse witnessed Ms. Anderson pay cash to the Applicant, he stated under oath that he did not." This assertion is clearly contradicted by the transcript, which includes the following question and answers (asked by the applicant's counsel and answered by Mr. Ledky):

Q.             Did you ever see your common-law wife pay this lady any money?

A.             Yes, I did.

And further in the transcript:

Q.             Did you ever see her get paid on a Sunday or Monday?

A.             Yes. Honestly for sure, I couldn't tell you exactly what days but I believe there was probably once I think I did see her give her some money on a Sunday.

Again, the transcript contradicts the applicant's written submissions. Ms. Anderson's common-law spouse stated under oath that he did witness Ms. Anderson paying the applicant.

[35]            The applicant submits that since the decision rested solely on the issue of credibility, it is unreasonable for the adjudicator not to deal with inconsistencies in his reasons for decision. I am not persuaded that the applicant has identified inconsistencies that were ignored by the adjudicator.

[36]            The application for judicial review is dismissed as the immigration adjudicator did not make a reviewable error.

[37]            Neither party wished to propose a serious question of general importance for certification.

ORDER

[38]            IT IS ORDERED that the application for judicial review is dismissed.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

April 25, 2002