Bernardez v. Canada ( Minister of Citizenship and Immigration )
IMM-357-94
Jerome A.C.J.
28/9/95
6 pp.
Application for judicial review setting aside decision of and departure order of Immigration Adjudicator-Latter found applicant, live-in caregiver, had engaged in employment contrary to employment authorization-Applicant directed by employer to assist with cleaning at family business store-Issues whether Adjudicator erred in law in finding applicant had engaged in employment in Canada contrary to employment authorization, and whether in so doing, failed to observe principle of natural justice-Applying Georgas v. Minister of Employment and Immigration, [1979] 1 F.C. 349 (C.A.), test for "employment" under Immigration Act, s. 2 not narrow, technical or restrictive but rather depends on nature of work and circumstances in which performed, regardless of relationship between parties-Here, applicant felt compelled to submit to employer's reasonable demands to clean family store, received no surplus money or benefits, ignorant of right to refuse unauthorized work-More serious issue: whether domestic coerced or compelled to perform duties for employer can truly be considered employed in that capacity-Furthermore, if Adjudicator intending narrow and technical view of employment, then principles of fairness enunciated by F.C.A. in Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 applicable and Immigration Department under duty to advise applicant upon discovery of unauthorized conduct and afford opportunity to correct impugned behaviour-Purpose of Live-in Caregiver Program to facilitate attainment of permanent resident status for foreign domestice workers and incumbent on Immigration Department to adopt flexible and constructive approach in dealings with Program's participants-Application allowed-Immigration Act, R.S.C., 1985, c. I-2, s. 2.