Garcia Balarezo v. Canada (Citizenship and Immigration), 2020 FC 841 : H&C Relief, IRCC Errors, Hidden Notes, and Best Interests of the Child

Lucrecia Garcia Balarezo came to Canada from Peru in 2009 on a study permit and later worked as a live-in caregiver from 2012 to 2016. She believed she was participating in the Live-in Caregiver Program (LCP) and working toward permanent residence.

Although the LCP required the initial work permit application to be made from outside Canada, IRCC issued her work permits from inside Canada. Her 2015 work permit expressly stated:

“LCP, SAME EMPLOYER” and “Eligible to apply for permanent residence after completing employment requirements.”

After completing the employment requirements, she applied for permanent residence. IRCC refused the application because she had not entered Canada as a live-in caregiver.

Following an earlier successful judicial review, the application was reconsidered with humanitarian and compassionate considerations under section 25(1) of IRPA, but was refused again.

Key Principle

An H&C assessment must genuinely consider the circumstances that led to non-compliance. An applicant should not be blamed for reasonably relying on express information provided by IRCC, particularly where IRCC itself made repeated errors.

Federal Court Findings

Justice McHaffie found several serious problems with the Officer’s reasoning.

First, the Officer relied on IRCC’s internal “hidden notes” stating that Ms. Garcia was not part of the LCP. Those notes were never visible to her. The Court found it unreasonable to expect her to proactively contact IRCC to discover internal information that contradicted the work permits actually issued to her.

The Court stated that it was unreasonable to characterize Ms. Garcia as “presumptuous” for relying on IRCC’s express statement that she was in the LCP and eligible to apply for permanent residence.

Second, the Officer relied inconsistently on a future caregiver program. The Officer suggested Ms. Garcia might qualify under a new program to minimize hardship, but dismissed her concern that she might not qualify because the program criteria had not yet been announced. This reasoning was internally inconsistent.

Third, the Officer’s best interests of the child analysis was unreasonable. The Officer acknowledged that Ms. Garcia’s departure would be stressful for the children she had cared for, but discounted the hardship because “change is inevitable” and coping with change would help their growth.

The Court held that this approach was not “alert, alive and sensitive” to the children’s best interests as required by Baker and Kanthasamy.

Fourth, the Officer failed to meaningfully consider the earlier Jacob decision, despite the previous Federal Court judgment specifically directing attention to its factual similarity.

Practical Significance

This case is particularly useful where:

• IRCC made administrative or processing errors;
• an applicant reasonably relied on information appearing on an immigration document;
• internal GCMS information was never disclosed to the applicant;
• H&C relief is sought to overcome technical non-compliance; or
• BIOC reasoning minimizes hardship through generalized assumptions.

Outcome

The judicial review was granted, and the matter was returned to a different immigration officer for another redetermination.

Case Citation:

Garcia Balarezo v. Canada (Citizenship and Immigration), 2020 FC 841 (CanLII)