Last Updated on July 18, 2021 by Steven Meurrens
Garcia Balarezo v. Canada (Citizenship and Immigration) is an interesting case which stands for the principle that it is unreasonable for IRCC to expect applicants to submit ATIP requests to learn the internal status of their file and what submissions they might need to make. The Court noted:
The officer recognized that both the May 2012 and June 2015 work permits were issued by IRCC in error. However, the officer asserted that Ms. Garcia’s May 2012 and October 2012 work permits “had clear notes on them that PA [principal applicant] was not part of the LC program.” This appears to have been very important in the officer’s thinking, as they repeated the point both in responding to one of Ms. Garcia’s submissions, and again in their conclusion, stating:
The errors made on CIC’s part (including issuing first work permit with med instructions to work in childcare field and adding the incorrect remarks to clients third work permit in 2015) have been taken into consideration and there is still insufficient evidence of H&C grounds to warrant exemptions. PA’s rep stated that PA and her employers were aware of Section 112 of the Immigration and Refugee Protection Regulations and were aware that the initial work permit had to be assessed and issued from outside of Canada and that an immigration medical needed to be completed in order to be eligible to apply for permanent residence. PA could have inquired through the Call Centre as PA’s first 2 work permits had very clear notes on them that PA was not part of the LC program.
The “very clear notes” in question were not, however, notes visible on the face of the work permits issued to Ms. Garcia or in any other document sent to Ms. Garcia. Rather, as is clear from the February 19 GCMS Notes, they were “hidden notes” that were available only to IRCC in their own system:
When she was issued the document and medical forms from within Canada, client should have questioned why. If client did question it and did not receive an answer, there was opportunity again to contact the Call Centre for clarification. […] The first two work permits that client was issued clearly indicates in hidden notes that client was not part of the LC program.
The officer’s conclusion was thus that when Ms. Garcia applied for and received her first work permit, despite there being no indication that she was not in the LCP, she should have been sufficiently curious about not receiving the expected instruction to leave the country that she should have made inquiries of IRCC. Upon making such inquiries, IRCC would then have advised her of the “hidden notes” saying that IRCC considered her not to be in the program. Certainly if Ms. Garcia had made such inquiries and been told this, this might have cleared matters up in 2012. However, in my view, despite the onus that is on applicants to ensure that they meet program requirements, it was unreasonable for the officer to have effectively required Ms. Garcia to proactively find out the source of errors made by IRCC, and to substantially discount this as an H&C factor in consequence.
In this regard, there was apparently sufficient uncertainty within IRCC regarding Ms. Garcia’s status that her 2015 work permit expressly stated that she was in the LCP and was eligible for permanent residence after completing employment requirements. Although this statement did not appear until 2015, it was reasonable for Ms. Garcia to rely on it as she worked for a further year in Canada on the continued understanding that she was a part of the LCP. This would appear to be a strong positive factor in Ms. Garcia’s H&C application.
However, rather than underscoring the impact of this statement, the officer appeared to take it as further grounds on which to blame Ms. Garcia for her conduct. In the January 15 GCMS Notes, the officer relied on the general reference in the remark to see the IRCC website “for details,” noting that despite IRCC expressly stating she was in the program, if Ms. Garcia had “referred to the website she would have realized that she did not meet all of the eligibility requirements.” In the February 19 GCMS Notes, the officer went further, concluding that even after receiving a direct statement from IRCC confirming she was in the LCP, it was “presumptuous of the client to assume she was part of the program and this was another opportunity for client to check the website regarding being eligible” [emphasis added].
In my view, it is unreasonable to find an immigration applicant “presumptuous” for relying on the accuracy of statements being made by IRCC with respect to their case. This Court has previously recognized the unreasonableness of imposing a duty on an applicant to check the website and regulations to ensure that statements on a work permit are accurate: Sanie v Canada (Citizenship and Immigration), 2019 FC 189 at para 15.