Gacho v. Canada (Citizenship and Immigration), 2016 FC 794 : Live-in Caregiver PR Refusal Upheld Because Spouse Was Reasonably Found Inadmissible for Membership in a Subversive Organization

Ø  Introduction

The Federal Court reviewed the refusal of a permanent residence application under the Live-in Caregiver Class because the applicant’s husband was found inadmissible under paragraph 34(1)(f) of the IRPA for membership in an organization involved in the subversion of a government by force.

The Court upheld the refusal, finding that the officer was entitled to rely on the overseas visa officer’s inadmissibility finding under the specific processing structure applicable to Live-in Caregiver applications.

Ø  Key Principle

In Live-in Caregiver Class applications, the processing framework permits the Case Processing Centre to rely on an overseas visa officer’s assessment of an accompanying family member’s admissibility.

For paragraph 34(1)(f), “membership” does not necessarily require formal membership or active participation. It may be established through evidence of belonging to an organization, including an institutional link or knowing participation.

The applicable standard is “reasonable grounds to believe,” which requires more than suspicion but less than proof on a balance of probabilities.

Ø  Background

The applicant was a Filipino citizen who applied for permanent residence under the Live-in Caregiver Class. Her husband had served in the Armed Forces of the Philippines and had been a member of the First Scout Ranger Regiment.

The husband had been present during the 1987 coup attempt against the Philippine government and had been convicted and imprisoned for his involvement. An overseas visa officer found him inadmissible under paragraph 34(1)(f) because of his membership in an organization involved in the coup.

The applicant argued that the Canadian officer should have independently reassessed her husband’s inadmissibility and that the officer failed to properly consider the concepts of membership, duress, and superior orders.

Ø  Court Findings

The Federal Court found that the Canadian officer was entitled to rely on the overseas officer’s inadmissibility determination.

The Court examined the applicable Live-in Caregiver processing manuals and found that they establish a division of responsibilities between overseas visa offices and the Case Processing Centre. The overseas office assesses accompanying family members, while the Case Processing Centre processes the principal applicant’s permanent residence application.

The Court also found that the overseas officer had reasonably assessed the husband’s membership. Evidence included his presence during the coup, his assignment to the First Scout Ranger Regiment, his conviction and imprisonment, and records identifying him as a member of the RAM-SFP-YOU.

The Court rejected the arguments based on duress and superior orders. The evidence did not establish the requirements for duress, and the superior-orders defence was not relevant to the membership-based inadmissibility finding under paragraph 34(1)(f).

The Court noted that the overseas officer’s decision remained subject to judicial review as part of the final permanent residence decision.

Ø  Outcome

The Federal Court dismissed the application for judicial review and upheld the refusal of the permanent residence application.

Case Citation:

Gacho v. Canada (Citizenship and Immigration), 2016 FC 794 CanLII