Abalos v. Canada (Minister of Citizenship and Immigration)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Tremblay-Lamer, J.
• Citation: 2011 FC 608,(2011), 390 F.T.R. 150 (FC)
• Date: 18 May 2011

Abalos v. Can. (M.C.I.) (2011), 390 F.T.R. 150 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. JN.011

Delilah Abalos (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-6156-10; 2011 FC 608)

Indexed As: Abalos v. Canada (Minister of Citizenship and Immigration)

Federal Court

Tremblay-Lamer, J.

May 25, 2011.

Summary:

An immigration officer refused Abalos' application for permanent residence as a member of the live-in caregiver class. Abalos applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - An immigration officer refused Abalos' application for permanent residence as a member of the live-in caregiver class because she failed to meet the requirements set out in s. 113(1)(e) of the Immigration and Protection Regulations (i.e., her husband was the subject of a removal order) - She applied for judicial review, arguing that the officer failed to reasonably consider the humanitarian and compassionate (H&C) factors (Immigration and Refugee Protection Act, s. 25(1)) - She claimed that the officer was not cognizant of the fact that at the time of her initial application she had qualified as a member of the live-in caregiver class - The Federal Court held that although the timing and extent of non-compliance might have been relevant considerations for the purposes of the officer's H&C analysis, it was clear that both aspects were considered - See paragraphs 24 to 26.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - An immigration officer refused Abalos' live-in caregiver class (permanent resident) application because she failed to meet the requirements of s. 113(1)(e) of the Immigration and Protection Regulations (i.e., her husband was the subject of a removal order) - She applied for judicial review, arguing that the officer failed to recognize a number of factors relating directly to whether an exemption should have been granted on humanitarian and compassionate (H&C) grounds (Immigration and Refugee Protection Act , s. 25(1)) - The Federal Court agreed that the factors raised on judicial review were relevant, but noted that they had not been brought to the officer's attention - The applicant had the burden of demonstrating that s. 25(1) relief was warranted - The officer could not be faulted where those issues were not raised - The factors that Abalos did raise before the officer did not establish unusual and undeserved or disproportionate hardship - Therefore the officer's decision that Abalos had not demonstrated sufficient H&C grounds was not unreasonable - See paragraphs 29 to 34.

Aliens - Topic 1215

Admission - Immigrants - General - Foreign domestics (incl. live-in caregivers) - An immigration officer refused Abalos' application for permanent residence as a member of the live-in caregiver class because she failed to meet the requirements set out in s. 113(1)(e) of the Immigration and Protection Regulations (i.e., her husband was the subject of a removal order) - She applied for judicial review, arguing that the officer erred by failing to properly adopt a flexible and constructive approach in processing her application - The Federal Court agreed that a flexible and constructive approach was required; however, Abalos failed to show how such an approach was not adopted in her case - That approach could not be applied to justify complete avoidance of one of the key requirements of s. 113(1) - A strict approach was not adopted here - The applicant did not satisfy the requirement - Her husband was subject to an enforceable removal order, rendering her in direct noncompliance - The officer's decision was not only reasonable, but correct - See paragraphs 16 to 23.

Aliens - Topic 1215

Admission - Immigrants - General - Foreign domestics (incl. live-in caregivers) - In August 2010, an immigration officer refused Abalos' application for permanent residence as a member of the live-in caregiver class because she failed to meet the requirements set out in s. 113(1)(e) of the Immigration and Protection Regulations (i.e., her husband was the subject of a removal order) - She applied for judicial review, arguing that the officer erred by failing to consider the effect of the delay in processing her application for permanent residence, which was filed in March 2009 - She argued that if the officer had rendered his decision prior to December 10, 2009, the date of the removal order, she would have been compliant with s. 113(1)(e) - The Federal Court held that there was nothing in this case to indicate that authorities failed to act with reasonable diligence - It could not be said that the officer acted unreasonably by conducting his assessment according to the facts prevailing at the time of his decision, as opposed to the facts as they were at the time of application - See paragraphs 35 to 38.

Aliens - Topic 1215

Admission - Immigrants - General - Foreign domestics (incl. live-in caregivers) - [See both Aliens - Topic 1206 ].

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - The Federal Court stated that an immigration officer's determination as to an applicant's eligibility for permanent residence as a member of the live-in caregiver class raised questions of mixed fact and law (Immigration and Refugee Protection Regulations, s. 113) - A decision as to whether an exception under s. 25(1) of the Immigration and Refugee Protection Act was warranted was discretionary in nature - The appropriate standard of review to apply in both instances was the reasonableness standard - The court stated that it would consider "the existence of justification, transparency and intelligibility within the decision-making process" and "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir v. N.B. SCC 2008) - See paragraph 15.

Aliens - Topic 4062

Practice - Judicial review and appeals - Powers of review of appellate court (incl. standard of review) - [See Aliens - Topic 1304 ].

Cases Noticed:

Aoanan v. Canada (Minister of Citizenship and Immigration) (2009), 353 F.T.R. 283; 2009 FC 734, refd to. [para. 15].

Santos v. Canada (Minister of Citizenship and Immigration) (2009), 343 F.T.R. 284; 2009 FC 360, refd to. [para. 15].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 291 D.L.R.(4th) 577; 64 C.C.E.L.(3d) 1; 2008 SCC 9, refd to. [para. 15].

Turingan v. Minister of Employment and Immigration (1993), 72 F.T.R. 316 (T.D.), refd to. [para. 16].

Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C. 635; 318 N.R. 300; 2004 FCA 38, refd to. [para. 31].

Singh (Bhupender) et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 350; 2005 FC 544, refd to. [para. 36].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al. (2004), 317 N.R. 258; 2004 FCA 66, refd to. [para. 40].

Barlagne v. Canada (Minister of Citizenship and Immigration (2010), 367 F.T.R. 281; 2010 FC 547, refd to. [para. 43].

Bekker v. Minister of National Revenue (2004), 323 N.R. 195; 2004 FCA 186, refd to. [para. 43].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 25(1) [para. 14].

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 113(1)(e) [para. 7].

Immigration and Refugee Protection Regulations - see Immigration and Refugee Protection Act Regulations (Can.).

Counsel:

Robert H. Gertler, for the applicant;

Martin Anderson, for the respondent.

Solicitors of Record:

Gertler, Etienne LLP, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on May 18, 2011, before Tremblay-Lamer, J., of the Federal Court, who delivered the following judgment on May 25, 2011, in Ottawa, Ontario.