Joanne gets a second chance

Immigration Matter

Sukhram Ramkissoon

 Joanne gets a second chance

 For many, the road to permanent residence in Canada can be rough with many bumps along the way.Sometimes the traveller may encounter an unexpected detour. But in many cases, perserverance pays off.

Such was the case of Joanne (not real name),  a 32 year old woman from the Philippines who arrived in Canada in October 2013 as  a Temporary Foreign Worker and  found employment at a restaurant in Alberta for  about eleven months.

In April 2014,   the Canadian government placed a moratorium (temporary prohibition) on the Worker program, which would have affected Joanne’s chance of applying for permanent residence as a Food Service Worker. So she decided to change her status and apply under the Live-In Caregiver program. She received a Labour Market Impact Assessment (LMIA) from a potential employer and was allowed to apply for a work permit..

Joanne was assisted by an Agency and had inquired specifically if she was required to leave Canada in order to apply for this program as she had heard other applicants had to do so.  She was assured by the Agency, this was no longer a requirement.

Joanne received her work permit and was later granted an extension of her work permit.  Both work permits erroneously  stated that she was “Eligible to apply for permanent residence after completing employment requirements.

Joanne then submitted her application for permanent residence, after completing the requirements, without the assistance of a “professional,” as she believed she was qualified to do so.  In October 2017,  she received a letter  informing her that, she was not a member of the Live-in Caregiver (LIC) class since she did not comply with the requirements.- specifically,that she did not apply from outside of Canada.  This was a “procedural fairness.” So she had an opportunity to reply.

In Joanne’s reply, she explained her circumstances, outlining her immigration history and also noting that her online validation of the form did not give any indication that this change of status was not a valid option.  Further, she stated that she was given a work permit under this class of persons and subsequent extension of this status.  She also provided proof of her educational requirements and other documents proving her eligibility in this program.  Joanne further addressed humanitarian and compassionate (H &C) factors, given her particular situation.

In May 2018, Joanne’s application was refused, as the officer was of the opinion that Joanne did not meet the requirements under the LIC Class since she did not enter Canada as a LIC with a valid work permit.  Because of this, the officer did not assess Joanne’s credentials and acknowledged the work permits previously issued contained erroneous information – i.e. allowance to apply for permanent residence.  The officer further noted that Joanne may appear to be eligible to apply under the new Caregiver Class but not under the LIC program.

It is also important to note, that although the work permits did contain errors, the officer was of the opinion that the onus was on Joanne to confirm that she was in fact eligible for the program.  LIC work permits can be issued from within Canada. However, that does not automatically imply the person is eligible for permanent residence under that program.  Since the regulations were definitive, the application was refused, as the officer did find there was sufficient H  & C factors to waive the requirement of Joanne meeting the regulations, as so described.

Joanne subsequently filed an Application for Leave and Judicial Review with the Federal Court.  In deciding to allow the appeal, the judge found the decision of the officer to be unreasonable based on the following:

  • The positive letters of reference supplied by the applicant which showed she had met the employment requirements, were not mentioned in the negative reasons given by the officer.
  • The Officer imposed a duty on the applicant to check the IRCC website and regulations to ensure the statements on the work permits were accurate.
  • The applicant’s credentials were not assessed to determine whether she would have qualified, had she been assessed overseas.

In granting this appeal, the judge stated  that “The Applicant came to Canada to become a permanent resident and spent six years working in good faith to achieve that objective.  The waste of time she experienced through no fault of her own is, in my view, a hardship.”

It was ordered that this application be reconsidered by another officer, in light of the Federal Court reasons, and the request for H&C relief should be considered.

Congratulations, Joanne!


SUKHRAM RAMKISSOON is a member of ICCRC and specializes in Immigration Matters at No. 3089 Bathurst Street, Toronto, Ontario. M6A 2A4 Phone 416 789 5756.