Federal court rules in favor of LCP applicant

Federal court rules in favor of LCP applicant

As in the past, the Federal Court of Canada has shown once again that it is very concerned about the women who apply to or remain in Canada under the Live-in Caregiver Program (the “LCP”).

On February 13, 2006, the court found that a Visa Officer should determine an LCP applicant’s “future intent” by asking the question “Will she stay in Canada illegally after completing the LCP?” rather than “Will she leave at the end of her visa?” In answering the proper question, the court asked: “what better evidence … than previous immigration encounters, if such are available?”

The LCP applicant failed to satisfy the Visa Officer that she would leave Canada after completing the LCP, given her previous attempts to stay in Canada, and therefore the Visa Officer refused her application.

The applicant had previously entered Canada as a visitor, had been refused a visitor’s visa extension, was a failed refugee claimant, a failed humanitarian and compassionate applicant, a failed Pre-Removal Risk Assessment applicant, and failed judicial review applicant on all those decisions.

In other words, the Visa Officer took her history as an indication that the applicant would remain in Canada illegally after completing the LCP (i.e., by either not applying for permanent residence, or by remaining illegally if her application for permanent residence is refused). This, the court held, was unreasonable.

The Federal Court looked at the applicant’s history and, in contrast to the Visa Officer, gave it a more favourable interpretation in light of the LCP’s guiding principles, including flexibly administering the program. The court saw the applicant’s history of trying to remain in Canada as an attempt to exhaust every possible legal means of staying in Canada legally, and, having exhausted all these legal options, leaving Canada voluntarily as required by law. The LCP applicant had the necessary skills (this was not contested), and her past history only showed her willingness to comply with immigration laws. It was therefore unreasonable to conclude, as the Visa Officer did, that her immigration history would lead a reasonable person to believe that the applicant would not comply with immigration laws in the future.

It is clear from a number Federal Court rulings, including this one discussed here, that the decisions of immigration authorities with respect to LCP participants will be closely scrutinized for their compliance with LCP guiding principles. Upon receiving an unfavourable decision – be it to refuse an LCP applicant’s work permit application or renewal, or to refuse an LCP applicant’s application for permanent residence under the program – the option of applying for judicial review of the decision to the Federal Court should be considered.

Rafael Fabregas
Student at Law
Mamann & Associates