Balarezo v. Canada (Citizenship and Immigration), 2017 FC 1060 : Caregiver’s Permanent Residence Refusal Overturned Because Officer Ignored Humanitarian Circumstances

The Federal Court reviewed the refusal of a permanent residence application submitted under Canada’s former Live-In Caregiver Program (LCP).

The Court overturned the refusal because the immigration officer failed to consider the applicant’s humanitarian and compassionate (H&C) circumstances, despite evidence and submissions indicating that an exemption from the program’s requirements was being requested.

Key Principle

Under sections 112 and 113 of the Immigration and Refugee Protection Regulations (IRPR), the former LCP required applicants to obtain authorization before entering Canada and enter as live-in caregivers.

However, subsection 25(1) of the Immigration and Refugee Protection Act (IRPA) permits exemptions from certain immigration requirements on H&C grounds.

An immigration officer may be required to consider H&C circumstances even without an explicit exemption request when the applicant’s submissions clearly indicate that such consideration is being sought.

The Court emphasized that officers must assess the substance of the submissions rather than focusing exclusively on whether a formal H&C request was made.

Background

Lucrecia Garcia Balarezo, a Peruvian citizen, entered Canada in 2009 as an international student to improve her English before pursuing caregiver employment.

In 2012, she obtained a work permit to work as a caregiver for a Canadian family.

She subsequently received additional work permits, including one issued in 2015 that specifically referenced the LCP and indicated her eligibility to apply for permanent residence after completing employment requirements.

However, IRCC refused her permanent residence application because she had originally entered Canada as a student rather than a live-in caregiver.

During reconsideration, Ms. Balarezo submitted explanations concerning her immigration history, hardship and close relationship with the children she cared for.

The officer maintained the refusal.

Court Findings

The Federal Court found that the officer unreasonably failed to consider the H&C circumstances raised in the application.

Ms. Balarezo explained that returning to Peru at age 60, after years in Canada, would cause significant hardship because of her limited employment prospects and potential difficulty qualifying under another immigration program.

Her employers also explained that their daughters considered her part of the family and would experience emotional hardship if she left.

The Court found that these submissions sufficiently indicated a request for humanitarian consideration, even though subsection 25(1) was not expressly invoked.

The officer also failed to adequately consider relevant case law involving caregivers who had entered Canada under different immigration categories.

Outcome

The Federal Court allowed judicial review, set aside the refusal and returned the application to a different immigration officer for reconsideration.

The Court did not automatically grant permanent residence or an H&C exemption.

No question of general importance was certified.

Case Citation:

Balarezo v. Canada (Citizenship and Immigration), 2017 FC 1060 CanLII