CITIZENSHIP AND IMMIGRATION
Immigration Practice
Judicial review of decision by visa officer at Canadian embassy in Morocco that applicant’s application for work permit as live-in caregiver failed to meet requirements of Immigration and Refugee Protection Regulations, s. 112—-Applicant received offer of employment as caregiver for brother, living in Gatineau (Quebec)—Employment offer confirmed by Quebec’s Ministère des Relations avec les citoyens et de l’Immigration and validated by Human Resources Development Canada—Applicant received Certificat d’acceptation du Québec and entered into employ-ment contract with employer—Visa officer determined that applicant did not meet all requirements for live-in caregiver work permit—Regulations, s. 112 provides person must establish training or experience in field or occupation related to employment sought with work permit—Officer stated working as teacher for two years not enough to establish recent experience as housekeeper and determined brother as future employer suggested that permit application made solely for purpose of facilitating entry into Canada and not convinced of return to Morocco—Application allowed—Appropriate standard of review for decision by visa officer varies according to whether discretionary decision or decision by visa officer involving application of general principles under Act or Regulations to specific circumstances: Yin v. Canada (Minister of Citizenship and Immigration), 2001 FCT 661—Determining whether applicant’s teaching experience relevant experience “in a field or occupation related to the employment for which the work permit is sought” question of mixed law and fact calling for reasonableness simpliciter standard— Manual OP 14, Regulations, s. 112 define live-in caregiver as “a person who provides child care, senior home support care or care of the disabled without supervision in a private household in Canada in which the person resides”—Second, 112(c) of Regulations clearly interpreted disjunctively: applicant must show relevant training or experience—Finally, main duties to consider in determining relevance of experience or training are duties described under code 6474 of National Occupational Classification—In light of job description that code 6474, and description provided by employer in application, visa officer erroneously determined that applicant did not qualify—Visa officer’s decision to disregard primary-school education experience (7 years and not 2 years) unreasonable and inconsistent with provisions of manual— Applicant meets all criteria—As for officer’s determination that applicant’s brother employer, suggesting would not return to Morocco, finding unfounded—Pure speculation—Nothing in Act or Regulations prohibiting family ties between future employer and employee—Furthermore, caregiver program specifically provides that individuals can apply for permanent residence afterward—Immigration and Refugee Protection Regulations, SOR/2002-227, s. 112—Immigration and Refugee Protection Act, S.C. 2001, c. 27.
Ouafae v. Canada (Minister of Citizenship and Immigration) (IMM-8197-04, 2005 FC 459, de Montigny J., order dated 7/4/05, 14 pp.)