Ottawa, Ontario, November 8, 2006
PRESENT: The Honorouble Justice Johanne Gauthier
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The applicant Maninder Kaur Soor seeks judicial review of the decision of the visa officer who refused to grant her a work permit as a live-in caregiver primarily because the officer concluded that the job offer was made primarily for the purpose of facilitating her admission to Canada. The officer was thus not satisfied that she met the requirements of the live-in caregiver which requires a bona fide offer of employment.
[2] The applicant argues that the visa officer breached a duty of procedural fairness by denying her the right to respond to concerns related to her sister’s credibility and to challenge the officer’s views regarding the normal behaviour of grandparents and close family members in the Indian culture.
[3]
It is
agreed that if a breach of procedural fairness occurred, the Court should
intervene. There is no need to proceed in this case to a functional and
pragmatic analysis to determine a standard of review. (Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J.
No. 2056 (QL))
[4] For the reasons that follow, the Court has determined that the officer did not breach her duty of fairness and that this application must be dismissed.
[5]
The applicant,
through an immigration consultant, submitted an application for a visa stating
that the name of her employer was Avtar Khormi. However, upon closer
examination of the file, the officer noted that Mr. Khormi was the applicant’s
brother-in-law and that the employer was in reality her older sister.
[6]
As the applicant
did not file any affidavit to support her application in this file, the parties
indicated at the hearing that the Court could rely on the CAIPS notes as
evidence of what went on during the interview conducted on September 22, 2005.
[7]
It is clear
from the said notes that the applicant was advised that the genuineness of her
employment contract was at issue. She was also told that the officer had to
determine “whether the employment contract is bona fide.”
[8] The officer also questioned her about the fact that her sister had entered Canada through the sponsorship of her first husband that she then divorced before sponsoring the application of a second husband and her in-laws. The applicant confirmed that indeed her sister had sponsored her current husband, his parents, as well as his sister who is now married.
[9] A review of the CAIPS notes indicates that the finding in respect of the employment offer was not made solely on the basis of the sister’s lack of credibility. It is worth noting that in that respect, the officer simply concluded that the credibility of the prospective employer “is not strong”.
[10] There is no evidence that the applicant was not fully aware of the content of her sister’s immigration file and that the information used by the officer should be considered extrinsic evidence.
[11] The officer also clearly states that there is nothing in the Immigration and Refugee Protection Act, S.C. 2001, c. 27, that prohibits a family member from working for another family member and that one has to look at the “big picture” to determine the credibility or genuineness of an offer of employment. Here, she found that it was the totality of the circumstances which pointed to the conclusion that the job offer was created solely to facilitate the applicant’s admission to Canada.
[12] The Court cannot agree that the officer had a duty to inform the applicant of her belief that, in Indian culture, grandparents typically assist in caring for grandchildren and that it was rare for very close family members to be paid to take care of children.
[13] Like Justice Judith Snider in Ayatollahi v. Canada (Minister of Citizenship and Immigration), 2003 FCT 248, [2003] F.C.J. No. 340 (QL), the Court finds that in this case, it was the job of the visa officer to have knowledge of such matters and to bring that knowledge to her position. She was thus entitled to rely on this information without being required to offer the applicant the opportunity to comment.
[14] In any event, here the officer clearly put her concern to the applicant. In effect, having been told by the applicant that the grandparents were not living with her sister, she put to the applicant that she nonetheless did not find it credible that “the grandparents would not be helping to take care of the children since they are so close”. Again the applicant offered no explanation other than the fact that “they don’t live together”.
[15] The Court is satisfied that the officer gave the applicant a fair opportunity to address her concern. There is no evidence that the applicant had any additional information to offer in that respect.
[16] There was no evidence that the sister whose children were 7 and 3 years old had used the services of caregivers or kindergartens in the past. There was no indication that the grandparents were not in good health or that they really lived too far to be of any help.
[17] The applicant has provided no evidence challenging the fact that generally Indian parents do provide assistance to their children with respect to raising grandchildren.
[18] The present case can be clearly distinguished from the situation in Mirzaii v. Canada (Minister of Citizenship and Immigration), 2003 FCT 164, [2003] F.C.J. No. 213 (QL), where the officer had stereotyped the applicant by concluding that he would be unlikely to return to his country after completion of his studies because it was the tendency of young students from his country to do so.
[19]
Finally,
in respect of the “big picture”, the Court notes that the applicant’s sister
was paid $14.25 an hour before tax and that according to the contract appended
to her application, the applicant was to be paid $10.00 an hour for the first
40 hours and $15.00 an hour for overtime.
[20] In view of the foregoing, the Court is satisfied that this decision contains no reviewable error.
[21] The parties did not submit any question for certification and the Court is satisfied that this case turns on its own facts.
ORDER
THIS COURT ORDERS that:
1. The application is dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6229-05
STYLE OF CAUSE: MANINDER KAUR SOOR v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: OCTOBER 18, 2006
REASONS FOR ORDER: GAUTHIER J.
APPEARANCES:
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Mr. Wennie Lee
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Mr. Anshumala Juyal
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SOLICITORS OF RECORD:
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Lee & Company Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada
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