Sunday, 27 December 2009

Of Calamities, Compassion and Caregivers

Filipiniana News  -  December 2009
Rhyme and Reason

Being the last month of the year and a traditional time of holiday cheer, I wanted this column to be about something positive that could provide an encouraging note as we enter another year.   As we know, our beloved Philippines has just gone through some difficult times brought on by natural calamities and human cruelty.   These include the tremendous destruction caused by the successive typhoons which hit the Philippines just a few months ago, killing hundreds, and destroying  thousands of homes.  Most recently,  a horrible massacre of journalists and civilians in what is believed to be a politically motivated act sadly reminds us how violent Philippine elections can become. 

Negative news notwithstanding, the universal response to these events have been quite uplifting.  As we know, donations for those affected by the typhoons poured freely, and cries of condemnation against the perpetrators of the massacre reverberated worldwide.  These responses only prove that people are replacing indifference with generosity of spirit, and with a keen sense compassion.

This gives us enough reason for hope.

For those who may have followed and read this monthly column, thank you.  You may have also noticed that one of my favorite topics is the Live-in Caregiver Program (LCP).  This is mainly due to the fact that, as an immigration lawyer trying to assist many caregiver clients, I am greatly disturbed by the repetitive issues that are faced by the participants in this program and have therefore long been looking forward to the day when genuine LCP reforms can be realized. 

I was thus pleasantly surprised to learn that on the day that I was supposed to submit this month’s article to the Filipiniana publisher, Citizenship and Immigration Minister Jason Kenney made a special public announcement on significant changes to the LCP.  Recognizing that the vast majority of participants to this program are from the Philippines, the Minister and his staff chose to make this announcement at the Kababayan Community Centre in Toronto, a CIC-funded settlement agency.  Many in the audience became emotional upon hearing Minister Kenney’s announcement which includes the following proposed changes to the LCP: 
·         LCP participants will now be given four years (instead of three) within which to satisfy the live-in caregiving requirement
·         In lieu of the 24 months, live-in caregivers will become eligible for permanent residence under the LCP class if they have worked for 3900 hours (equivalent to the hours for a standard work week of approx. 40 hours per week for two years) with proportional credit given for overtime hours worked.
·         The second medical examination requirement will be eliminated (Juana Tejada law)
·         Employers will be required to pay for the caregiver’s travel costs, medical insurance until they qualify for provincial health coverage, workplace safety insurance and any recruiting fees owed to third parties
·         LCP employment contracts will have to clearly spell out the terms of employment, job duties, hour of work, overtime, vacation and sick leaves, termination and resignation terms.  Violations of the contract will be strictly enforced and punishable under the Immigration and Refugee Protection Act (IRPA) by imprisonment and a fine of upto $50,000. 
·         CIC will coordinate with Service Canada in ensuring that LMO and work permit renewal processing will only take three weeks to process.

"These important changes help fulfill Canada's duty to those who care for our young, our disabled and our elderly," Kenney said, adding the changes will "help strengthen protection for live-in caregivers and reduce the potential for their exploitation and abuse."
Minister Kenney said that his decision to eliminate the requirement that live-in caregivers undergo a second medical exam when applying to become permanent residents was made in honor of the late Juana Tejada, Celia Mansibang and other live-in caregivers who have similarly died  of a terminal illness after fulfilling the requirements of the LCP.

I was initially disappointed to hear that the changes announced did not include the three major proposed changes I would have wanted to see which are: 
·         The granting of conditional landed status to the caregivers upon arrival in Canada
·         The issuance of open work permits instead of employer-specific work permits and
·         The elimination of the mandatory live-in requirement

I was disappointed because these reforms would have addressed the precarious immigration status of the caregivers as well as the serious power imbalance between the caregivers and their employers, which in turn prevent the caregivers from effectively seeking redress for the various forms of abuse and exploitation committed against them.

During the open forum, Minister Kenney rationalized his failure to include these changes by stating that having been made aware of the flaws of the program, his objective is to mend the program and not to abolish it.  In so doing, he needed to balance the interests of the employers along with the caregivers. 

Once implemented, these major changes to the LCP will indeed benefit many caregivers.

The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca.

Friday, 27 November 2009

Dealing with an Imperfect System

Filipiniana News  -  November 2009
Rhyme and Reason

Canada’s immigration system is far from being perfect.

Aside from stating the obvious, this reality was further confirmed by a couple of news items that were published in recent weeks.

The first news item is the Auditor General’s report raising serious problems with Canada’s immigration programs.  In particular, the Auditor General raised concerns “about the integrity of the program and the protection of temporary foreign workers”.  Below are some excerpts from the report: 
“Various studies and reports over the years have recognized that lower-skilled temporary foreign workers entering Canada may be vulnerable to exploitation or poor working conditions, usually because of their economic conditions, linguistic isolation, and limited understanding of their rights.”
“There is a risk that live-in caregivers may tolerate abuse, poor working conditions, and poor accommodations so as not to lose the opportunity to become permanent residents. The program’s requirement that the caregiver reside in the employer’s home can put them particularly at risk. A number of CIC internal reports, some dating back as far as 1994, raised serious concerns about abuse of this program by employers and immigration consultants, as well as risks to individuals.”
“(T)here has been no systematic follow-up by either CIC or HRSDC to verify that employers are complying with the terms and conditions under which the LMO application was approved, such as wages to be paid and accommodations to be provided.”
“Furthermore, we noted that the pilot project for occupations requiring lower levels of formal training was launched with limited analysis of risks and without any formal goal, objectives, or basis on which to evaluate its success, nor has it been formally evaluated since then.  It has been a pilot for seven years.  Combined with live-in caregivers, temporary foreign workers under this pilot project now account for more than half of all temporary foreign workers in Canada.”
The Auditor General’s findings are nothing really new to foreign worker advocates, and to those who have gone through the temporary foreign worker program, including the Live-in Caregiver Program.  It is well known that widespread abuse and exploitation occur within these programs, which is further aggravated by the fact that there is no effective monitoring of the employers’ treatment of these foreign workers.  What would likely be more alarming and less known is the fact that foreign workers in occupations requiring lower levels of formal training (commonly know as “low-skilled” occupations) and live-in caregivers comprise a majority of temporary foreign workers in Canada.

We know that a huge number of Filipino migrants obtain entry to Canada via these “low-skilled” and live-in caregiver work permits.  Therefore, it is only reasonable to conclude that temporary foreign workers from the Philippines end up being disproportionately affected by the problems raised in the Auditor General’s report and will continue to be so as these programs continue to grow in popularity among aspiring Filipino migrant workers.

The second news item dealt with the recent decision of the Ontario Court of Appeal which ruled that sponsors who signed sponsorship undertakings should not be automatically held responsible for repaying the social assistance debts of relatives whom they sponsored as immigrants.  Instead, the court has ordered the creation of a process through which sponsors can explain their personal and financial circumstances and potentially avoid payment of social assistance debts.

Incidentally, this involves another popular route of entry for Filipino migrants to Canada.  That is, many Filipinos are admitted to Canada as sponsored family members and the sponsors undertake to provide for their sponsored family members’ needs.  Therefore, the sponsor will be financially obligated to return any payments received by the sponsored family member in the form of welfare benefits from the government.  What the Ontario Court of Justice ruling did was to prevent the government from automatically enforcing these “sponsorship debts” without allowing the sponsor to explain their specific circumstances.  It does not necessarily render void the sponsorship undertaking but only allows the government to exercise discretion in “deserving” and “exceptional” cases. 

Nonetheless, this is an important legal victory in that it tempers the government’s ability to enforce these “sponsorship debts” automatically and unreasonably, even many years after the family relationship may have broken down or when the sponsor truly has no means to pay.

The immigration system in Canada has been described as “one of the least controllable aspects of government activity” not only because it is “fraught with bureaucratic discretion, but also because its subjects are assumed to be politically powerless.”

But as these recent developments show, it may just be a matter of time before the government authorities will finally realize that their exercise of discretion need not be inconsistent with reasonableness and compassion, in the same way that migrant workers will not necessarily remain politically powerless in the face of recurring injustice and exploitation. 

The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca.

Tuesday, 27 October 2009

Flooding and its Aftermath

Filipiniana News  -  October 2009
Rhyme and Reason
  
Growing up in the Philippines, I have quite a few memories of having waded on flooded streets and even witnessed our home being invaded by floodwater up to a few inches deep.  Since the rainy season in the Philippines expectedly brings huge amounts of rainfall every year, one would think that the Filipinos have become accustomed to and have learned to adapt to this recurring weather episode.

Aside from the brief terror from the occasional loud thunderstorms and flashes of lightning during these seasonal rain showers, my personal memories of Philippine floods consist more of watching children happily wading in pools of water and shrieking in delight while splashing water against each other.  In a country where clean water is a scarce commodity and swimming pools and bathtubs are luxuries reserved for the lucky few, I witnessed how innocent street children found great delight in reveling amidst this temporary natural abundance.  Adults on the other hand, thanked the rains for the cool respite they provide after a long hot and dry summer.  Rain water was even stored and used by those who do not have steady water flow to augment their supply.  

The recent havoc wreaked by typhoons Ondoy and Pepeng (internationally known as Ketsana and Parma) therefore came as a big shock to many.  However, there are those, including environmental activists, who have long forewarned that this type of disaster is inevitable if we are not going to take serious efforts at preserving our mother nature and actively participate in reversing its quick deterioration.  

The sight of entire buildings and houses submerged in water and vehicles and other movables floating aimlessly and dangerously amidst human beings struggling to get to dry land, was totally heartbreaking.  It was reported that the first typhoon, Ondoy, dumped one month’s worth of rain in a few hours, causing the worst flooding in four decades, leaving hundreds dead and thousands trapped in miserable conditions.  The next typhoon, Pepeng, caused even greater damage in the countryside, destroying crops, causing landslides and killing even more people and leaving scores homeless and traumatized.

Thanks to advances in information technology, these vivid images and extensive reports of the resulting devastation were quickly broadcast worldwide and tugged at the heartstrings not only of foreign governments and international aid agencies, but also of our Filipino kababayans who are scattered in all corners of the globe.  Donations of money and relief goods poured in and people quickly did whatever needed to be done to alleviate the sufferings of those who were seriously affected by these calamities.  It was truly a heartwarming sight to behold this generous bayanihan spirit and the Filipinos’ willingness to help others in times of need.   

However, more needs to be done as thousands if not millions are still reeling from the aftermath of the typhoons, on top of the endemic issues of poverty, unemployment, poor healthcare system, environmental degradation, corruption, etc. that have long plagued the nation.

As a result of this latest tragedy, it won’t be surprising that an even greater exodus of Filipinos to other countries will occur in the coming months and years.  The Canadian government, in response to the typhoons, has issued a special directive aimed at providing special immigration measures for direct victims of the typhoons and their families.  When I first read this announcement, the first thought that came to mind was the possibility of unscrupulous individuals and agencies taking advantage of the situation in that they could pretend to be directly affected when they are not, which may eventually prejudice those who are genuinely affected and in need of reuniting with their families in Canada. 

May I appeal therefore to those concerned to please act responsibly and conscientiously so that this rare opportunity of fast-tracking Canadian immigration applications will truly benefit its intended recipients. The last thing we want is to blow the opportunity for those who are truly deserving simply because of a few bad eggs who tainted the process for everyone else. 

Meanwhile, there are news reports that the floods may not subside until December 2009 or even in early 2010.  Even in areas where the flooding may have dried up, problems of how to rebuild their lives and livelihood, prevent illnesses, recover from the trauma, still exist.  For those directly affected, the road to recovery will be long and difficult.  Let us not only help them through actual donations of material goods, but also by resisting the temptation of taking advantage of the situation, for any personal or political gain.

Let us heed the lessons learned from this calamity, foremost of which is the extreme importance of environmental awareness and protection.  I once had a conversation with someone who insisted that a politician with a green platform will never succeed because the voters care more about economic policies that would put more money in their pockets.  Clearly, it’s about time that this line of thinking change.  After all, of what use would “a good economy” be, once we have all been wiped out by preventable natural disasters?   

The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca.

Sunday, 27 September 2009

Live-in Caregiver Program Deja Vu

Filipiniana News  - September 2009
Rhyme and Reason

A few recent positive decisions on rather complex live-in caregiver applications somehow raised hopes for caregiver advocates that this government is finally becoming sensitive to the extremely difficult circumstances that many live-in caregivers have to endure.  Upon the individual caregivers’ request, the immigration officers concerned chose to exercise their positive discretion in granting certain exemptions to immigration requirements on humanitarian and compassionate grounds. 

Therefore, the Conservative government’s recent negative response to the Standing Committee’s proposals to amend the laws relating to live-in caregivers and other temporary foreign workers came as a huge disappointment.  The response by Citizenship, Immigration and Multiculturalism Minister Jason Kenney’s office, practically turned down all recommendations by the Standing Committee including the issuance of occupation specific instead of employer specific work permits, making the live-in requirement voluntary and exempting live-in caregivers from the second medical requirement.  The responses of the government not only echoed the previous government pronouncements, excuses and justifications, but also failed to really listen to and understand the sentiments of those directly affected by the gross deficiencies and unfairness of the LCP as it currently stands.

This recent government response, coupled with the tabling of Bill C-45 by Minister Kenney a few months earlier, and his subsequent controversial positions on various immigration and refugee issues, makes one seriously wonder whether any significant reform that will truly benefit the long disadvantaged migrants can ever be realized under the present government.   However, this is not to absolve the previous Liberal governments either, as they were equally guilty of failing to enact proper measures to protect the vulnerable caregivers when they had the chance to do so.

Bill C-45 is a glaring example of how those in power just do not seem to get it.  Among others, this bill proposes to allow a visa officer to “refuse to authorize the foreign national to work in Canada if, in the officer’s opinion, public policy considerations that are specified in the instructions given by the Minister justify such a refusal”.  The instructions, according to the bill, “shall prescribe public policy considerations that aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation”.

The logic used to justify this and other related proposals is simply baffling. Why penalize the offended party for a wrong committed against them?  Is immigration law now the polar opposite of criminal law and basic human rights principles?   Why does the government act like a bully when dealing with vulnerable people while continuing to drag its feet when dealing with the rich and powerful but abusive and exploitative employers, recruiters and/or government agents?

It has been suggested that the only way to convince the government to implement substantive legal reforms is to view things from the bureaucrats’ perspective:  that live-in caregivers are simply economic beings, who are taking part in an economic program such as the LCP which is meant to serve the economic needs of our high and mighty Canadian employers.

Granting this is the case, is this at all humane?  Why should we accept a worldview that we know is simply, utterly wrong?   Live-in caregivers and other foreign workers are first and foremost, human beings.  They are entitled to being treated with respect and dignity.  They are entitled to equal treatment under the law.  They are living, feeling, breathing persons who also have families to support, just like the very employers who are benefiting from their services. 

As I write this, the newspapers are reporting the likelihood of another federal election in the near future.  Although we must be weary by now of going through elections almost every year, we should not get tired of actively engaging in the political process. Instead, we should use this as an opportunity to educate and influence our government officials, legislators and policy-makers on this and other issues that we care about.
 
The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca.

Thursday, 27 August 2009

Thank you, President Cory

Filipiniana News - Rhyme and Reason
14 August 2009

By now, most, if not all of us are aware that our beloved former President Cory Aquino passed away on August 1st, 2009 after several months of battling colon cancer.  In death, even more than when she was alive, President Aquino has been hailed as a hero, a saint, a symbol of democracy, and a mother of the Filipino nation. 

President Cory no doubt deserves these accolades and more. 

So much has been written about how she brought back democracy to the Philippines after several years of Marcos dictatorship through the internationally-celebrated bloodless people power revolution.  So much has been written not only about how she survived seven coup attempts during her administration, but also how she missed huge opportunities for implementing genuine and long-lasting societal reforms.

She was not perfect, but no human being is.

I had a brief personal encounter with President Cory during the 1985 snap election campaign when she came to our school and I was able to shake her hand.  Wearing her trademark bright yellow dress and a disarming smile, I found her to be remarkably simple.  However, President Cory was a simple woman who lived an extraordinary life.  Although born with the proverbial silver spoon being the scion of a wealthy clan, she faced and survived a series of trials, each of which could have caused a major physical, emotional and spiritual breakdown for anyone.  However, during and after each trial, she plodded on, her faith and dignity remaining very much intact throughout.

Her life was filled with paradoxes.

She was belittled by a dictator and his ilk, but emerged to help make great things possible.   She wielded power with great humility.  She exercised wisdom in admitting to her inexperience.  She exhibited strength by recognizing her weaknesses. 

In death, she inspired an entire nation to rethink its values.

President Cory was a shining example of the Benedictine motto, Ora et Labora, or “Prayer and Work”.  No doubt the Benedictine sisters of her grade school alma mater, St. Scholastica’s College, are very proud of the fact that President Cory reflected the very same values that they wished to inculcate in all their students and beyond.  President Cory’s piety is not only legendary, it was truly lived and practiced.  This was clearly her greatest source of strength. 
  
Cliché as it may sound, President Cory’s legacy will, and should live on.

The outpouring of love and expressions of sympathy over her death were truly impressive and astounding.  One can only hope and pray that this overwhelming show of collective mourning will eventually translate into a full manifestation of national unity and pride, much like the historic people power revolution of 1986.  

Meanwhile, we can continue to honor President Cory’s memory by emulating her life of prayer and work, humility and courage.  Let her shining example serve as a reminder that each of us is capable of greatness, as long as we recognize that greatness comes from something that is bigger than ourselves.  I have always believed that the Philippines is very much blessed due to, and by the strong faith of its people.  In life, as well as in death, President Cory exemplified this fact to the entire world. 

Thank you, President Cory, for making us proud to be Filipinos.  May you rest in peace with our Creator.

The author is a lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca

Monday, 27 July 2009

Celia’s Legacy, Terry’s Crusade

Filipiniana News - Rhyme and Reason
14 July 2009
  
Just a few months after Juana Tejada’s death, another caregiver stricken with cancer while working under the Live-in Caregiver Program (LCP) passed away.   Ms. Celia Mansibang succumbed to cancer on 29 June 2009, leaving behind her husband, William Mallillin, and their two children, Vincent and La Sandra Mallillin, her three sisters Chona, Eloisa and Marichelle Mansibang and their families, as well as their elderly mother.

Like Juana, Celia was diagnosed with cancer when she went through the required medical examination as part of her LCP permanent residence application. She then applied for an exemption from medical inadmissibility arising from her terminal illness, and was fortunately granted an exemption on humanitarian and compassionate grounds.  Her husband and two children were also granted temporary resident permits to enable them to travel to Canada and be reunited as a family during this critical time.  Despite the grim prognosis of only a few months to live, Celia seemed to have regained strength upon her family’s arrival in Canada that they were able to celebrate some joyful occasions including their renewal of marital vows, her daughter’s 17th birthday, their wedding anniversary, and Celia’s 48th birthday.  

Most importantly, Celia and her family were eventually granted permanent resident status in Canada.  A process that would normally have taken several months to a few years was completed in a few weeks for Celia and a couple more months for the rest of her family members. The officers who processed her file were extremely kind, sympathetic and facilitative of her and her family’s immigration applications.   It is one of those times that I have seen immigration decision-makers expeditiously acting and taking to heart the definition of “compassionate considerations” as set out by the Immigration Appeal Division in the case of Chirwa v. Canada (1969) as “those facts, established by the evidence, which would excite in a reasonable man in a civilized community a desire to relieve the misfortunes of another”. 

Although it is indeed very sad that the “prize” of permanent residence in this case was obtained at the expense of a precious life, it is these types of administrative decisions that somehow restore my faith in Canada’s proud humanitarian tradition.  I have been disappointed and frustrated many times upon learning of truly deserving cases being unjustly refused by officers who may have either misunderstood or have been unduly harsh in applying the relevant legislation, who did not know the applicable law, or who simply did not care.  Unfortunately, immigration law is an area of law that is fraught with discretionary powers on the part of the decision-makers which contributes to the often unpredictable outcomes of immigration applications. Fortunately in Celia’s case, such discretionary powers were exercised in a manner that took into serious consideration the relevant humanitarian and compassionate factors and led to a positive decision.   

During Celia’s funeral service, I was also very impressed by the outpouring of love and affection by the people who paid their last respects, many of whom are caregivers themselves.  I learned that to help ease the burden on Celia’s family, these caregivers took care of all the preparations for the funeral, the actual physical arrangements, the food preparation, scraped their meager resources to not only help assuage the family’s grief, but also to show solidarity with all other caregivers who continue to suffer in various ways.  

Although there are undoubtedly many people who have helped Celia during her lifetime, there is one who I thought stood out for her fierce dedication and advocacy when everyone else seemed to have lost hope.  At the funeral service, Ms. Terry Olayta tearfully expressed how assisting Celia and other caregivers gave her life “new meaning.”   Having been a caregiver herself, Terry founded the Caregiver Resource Centre which is a product of her sincere desire to help other caregivers and uphold their rights and welfare.  “Assisting” is a huge understatement when describing what Ms. Olayta has done for Celia and continues to do for all other caregivers contacting her for help.  I can personally attest to the various selfless ways that she has helped these people as she practically lives and breathes the caregiver’s endless woes, in my view.  

Celia’s legacy and Terry’s crusade intersect in that they both embody the hope that the difficulties, obstacles and various forms of injustice suffered by the numerous Filipina caregivers in Canada will someday be finally be vindicated. 

However, I would also like to emphasize that I do not mean to ignore, much less dismiss the work being done by other caregiver groups and advocates who are similarly doing a great job in advancing the welfare of caregivers and temporary foreign workers in Canada.  I truly appreciate, admire and commend their selfless efforts towards similar ends.  It just saddens me to note that the mushrooming of various groups and initiatives going their separate ways only serve to divide and weaken the overall impact of these campaigns.  

Therefore, let this also serve as my sincere appeal to everyone who care for the issues that Juana, Celia and others have died for: let us please try to set aside personal differences, selfish motives and even cultural stereotypes (e.g. crab mentality, rumour mongering, backstabbing) to finally unite and be seen as a formidable block.  It is only then that we can possibly achieve not only genuine legal reforms for caregivers, but also economic, political and social reforms within the mainstream Canadian society that will surely benefit us all.

The author is a lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca

Saturday, 27 June 2009

Some Reflections on the Elections

Filipiniana News - Rhyme and Reason
14 June 2009

In the past month or so, the Canadian media have been speculating on the possibility of a summer election if the opposition party decides to defeat the present minority government.  Long before these recent reports however, many Canadians have felt like elections are always looming in the horizon, as the political bickering and mudslinging seem to be occurring non-stop in the context of the present minority government. Therefore, one cannot help but be suspicious that the political leaders’ every move is calculated towards the main objective of defeating their political opponents and winning the next election. 

On the other hand, Filipino-Canadians in Toronto had a recent breakfast gathering (Kapihan) to hear visiting Philippine Senator Francis Pangilinan speak.  Senator Pangilinan not only spoke about the current state of Philippine affairs but also candidly admitted his aspirations for the highest seat in the land.  For now, he is running for the vice-presidency as he believes that while he feels that he is ready for the job, the Filipino people may not yet be as ready to accept him as President of the country.  He then went on to encourage Filipinos in Toronto to register and vote in the 2010 Philippine national elections.  Although I have no reason to doubt his competence and sincere aspirations for the Filipino nation, I also cannot help but be skeptical about whether the upcoming elections will bring any significant change to the current Philippine socio-political and economic conditions.

Why do we need to participate in elections and believe in what politicians have to say or promise?  The theme of my article last month was that media and politics play an important role in our democratic systems.  This time, I would like to go further and state that public participation and response to the interplay of media and politics play an even more important role in our society.  I would like to believe that it is still the people (or the electorate) who hold the key to the success or downfall of those who wield political power.  

At the breakfast forum, someone in the audience asked, what can we do to help our motherland, the Philippines?  The response given was to the effect that while there are several things we can do, directly or indirectly, to help our motherland, this is a personal choice that only we can make.  I can only agree.   I strongly believe that every time we choose to do something that helps uplift lives other than our own, then we are contributing our just share in not only making our democratic systems work, but also in creating a much better world.

The same is true for those of us who hold dual citizenships.  We can be useful members of both the Philippine and Canadian societies not only through our votes or economic contributions, but also by dealing with everyone else in an honest, humane and respectful manner, regardless of our differences. 

If we elect political candidates based on these fundamental standards that we ought to apply in our own lives, then there may be some hope that elections will become a truly beneficial aspect of our democratic systems and not just a futile exercise that it often turns out to be.

*****

Fact and Rumour about the Live-in Caregiver Program (LCP)

In the past few months, I have repeatedly been asked whether live-in caregivers can still apply for permanent resident status after working for two years as full time live-in caregivers in Canadian households or whether they will just be granted temporary work permits indefinitely.  After having been asked this question at least a dozen times, I started to wonder where this rumour came from and why anyone would spread this inaccurate news that has caused panic and extreme anxiety to many.

As far as I am aware, the LCP has not been changed and that it is still a hybrid program which allows caregivers to apply for permanent resident status after satisfying the condition of working as full time live-in caregivers for two years within three years of arrival in Canada.

While the House of Commons Standing Committee on Citizenship and Immigration has recently issued a report with recommended reforms to the LCP (including that of granting conditional permanent resident status to caregivers upon their arrival in Canada), none of these recommendations have been enacted or implemented as of this writing.  Until these recommendations are acted upon, the current LCP provisions remain.  CIC Minister Jason Kenney has also hinted at introducing substantive changes to the LCP before the end of this
year.  However, there is yet no concrete policy pronouncement, legal or regulatory reform in this regard.  Hence, the LCP is still what it is, and the struggle to achieve genuine reforms continues.
  
The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca

Wednesday, 27 May 2009

Media and Politics

Filipiniana News - Rhyme and Reason
15 May 2009 

In the past few months, I was happy to note that the government seemed to be taking a keen interest on the many problems faced by temporary foreign workers in Canada, including participants of the Live-in Caregiver Program.  This was undoubtedly triggered by the extensive media coverage of the unscrupulous practices of recruiters which highlighted the vulnerability of this sector and gave impetus to the various initiatives and proposals meant to protect the long exploited migrant workers.  These initiatives included proposals to regulate recruitment agencies and employers, the creation of a live-in caregiver hotline meant to clarify existing employment standards legislation as applied to the situation of live-in caregivers, nationwide consultations on LCP reforms,  and a rather comprehensive House of Commons standing committee report on proposed reforms to the foreign worker programs. 

Then an allegation of abuse against a prominent politician exploded. Both the politicians and the media went berserk and lost no time in taking advantage of the opportunity to politicize the matter.   Unfortunately, the bigger issues seem to have been forgotten and simply became a convenient backdrop to the political bickering that ensued. 

Ironically, it is again the extensive media coverage of the alleged abuse and illegal acts of this Liberal MP against her caregivers which has veered the focus away from the very same issues that it helped gain some momentum a while back.

While I appreciate the work of persistent investigative reporters who have brought these important issues to the public attention, and even the well-meaning initiatives of politicians,  recent developments to my mind, only served to highlight the following:
·         Media can be a very powerful tool for constructive change.  However if misused and abused, it can also turn into a potent weapon for destruction.  
·         Most (if not all) politicians rely on positive image to survive and to ensure votes for the  next election. Therefore, they will do almost anything to ensure that their public image is always protected.
·         The politicians can be easily sidetracked from the substantial issues once their personal and partisan interests are affected as they will tend to fight tooth and nail to preserve or restore their good reputation. 
·         Public perception as shaped by the media, can easily obfuscate the truth and run roughshod the very basic principles of fairness and due process.

Media and politics clearly play an important part in our democratic system.  But after seeing much sensationalism and petty mudslinging, one cannot help but be cynical about the motives behind almost every media story and every political move.  While it is understandable that there are always differing perspectives to every issue and every circumstance, it is another story when the very basic tenets of truth and justice are already being jeopardized.  Worse, the energy that could have been spent on promoting the public good is being wasted on pursuing selfish ends. 

Call me naïve, but I still long for the day when media, politics and the common good will finally converge to bring about true and lasting solutions to the many problems faced by the long suffering and disadvantaged sectors of society. 

We can dream, can’t we?


The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca

Monday, 27 April 2009

LCP Reforms NOW (part II)

Filipiniana News - Rhyme or Reason
15 April 2009

Please pardon me for devoting yet another column on this matter but it is an issue which increasingly resonates within our community, which is known to be the biggest source of live-in caregivers in Canada.  Those who have been following the series of Toronto Star investigative articles in the past few weeks involving abuse and exploitation of live-in caregivers would have also heard about the government’s quick response through a number of actual and proposed legislative reforms which led one article to conclude, “Victory for Nannies”.

These are of course welcome developments and enough reason to be hopeful that long overdue changes are finally happening.  However, I also cannot help but be cautiously optimistic as recent developments have emphasized the continuing need for vigilant advocacy.

A relevant change that has been recently implemented is the granting of provincial medical (OHIP) coverage to most open work permit holders.  This is certainly good news to many live-in caregivers who are issued open work permits while awaiting the processing of their permanent resident applications.  However, this change still does not cover those who are on implied status. Those on implied status include caregivers (or other work permit holders) who have submitted their open work permit (or renewal) applications prior to the expiry of their existing permits.  They are able to retain their legal temporary status under the same terms and conditions of their expired work permits, until they receive the decision on their applications.  While it is not exactly known why the OHIP administrators failed to consider this situation (implied status), one can reasonably attribute it to the fact that immigration law (where the implied status concept originated) is a matter of federal jurisdiction while healthcare coverage is a matter falling with the provincial jurisdiction.  One would think that government bureaucrats would be prudent enough to coordinate across jurisdictional boundaries to ensure cohesive and sensible governance.  But as this simple example illustrates, even that may be a bit too much to ask, it seems.

A second welcome development again arose within the provincial level when MPP Mike Colle introduced a private member’s bill meant to protect caregivers from the unscrupulous practices of recruitment agencies and employers. This was followed by a commitment from the provincial government itself to introduce a government bill that will go along similar lines.  While this extraordinary move is indeed a cause for rejoicing, we have yet to see the actual government-sponsored bill that is supposed to replace MPP Colle’s initial proposal.  MPP Peter Fonseca, who is also the current provincial labour minister, backtracked on his earlier position that the protection of caregivers is a matter that is within the federal government’s jurisdiction.  He later agreed, following MPP Colle’s proposal, to enact measures that will mirror the protections already in place for foreign workers in other provinces such as Manitoba.  But since the wheels of government legislative process grind exceedingly slow, we may have to wait a few more months (not years, hopefully) before concrete legal reforms are enacted, much less implemented. 

Meanwhile, it has also been reported that Citizenship and Immigration Canada Minister Jason Kenney is conducting consultations across the country on possible areas of immigration law reform, particularly within the Live-in Caregiver Program (LCP). No doubt, this is a golden opportunity to try to influence the current federal immigration minister’s views on effecting long-overdue changes to the LCP.  The Minister’s decision to conduct wide-ranging consultations is commendable.  However, we hope that these are genuine consultations with the intention of truly listening to the actual experiences and situation of the very people who are affected by the law, the caregivers themselves. While there are those who claim to articulate the caregivers’ views and/or to speak on their behalf, it is not the same as when the voices of the caregivers themselves are heard. For it is only upon hearing their stories that the Minister (and others able to influence change) will be convinced that at least the following aspects of the LCP need an urgent overhaul:
1.  the mandatory live-in requirement – the caregivers’ stories will prove how rampant the employers’ abuses are and how easy it is to take advantage of the caregivers within this context
2.  extremely poignant stories of, and often irreparable harm arising from, family separation
3.  pervasive insecurity arising from lack of permanent resident status
4.  loss of dignity and freedom caused by the employer-specific nature of the LCP work permit
5.  vulnerability to trafficking and exploitation due to lack of enforcement mechanisms against abusers as well as the lengthy processing times of LCP immigration applications (whether for the initial work permit, renewals and permanent resident application processing).

Only time will tell if the recent legislative changes introduced and ongoing consultations being conducted in respect of the situation of foreign workers and caregivers, will actually produce effective and long-lasting results.  Only time will tell if the Canadian government and its people will truly live up to its proud tradition of respecting human rights for all.

We should therefore keep up the pressure and unceasingly remind the lawmakers and other powers-that-be that that time is now. 

The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca

Friday, 27 March 2009

A Call to Reform the LCP NOW!

Filipiniana  News - Rhyme or Reason
15 March 2009

It is with deep sadness that we learned about the recent passing away of Juana Tejada, the Filipina caregiver diagnosed with cancer who was initially refused permanent residence in Canada because her illness will cause an excessive demand on the Canadian system.  A few days after Ms. Tejada’s death, the Toronto Star published a series of investigative articles on the unscrupulous practices of immigration consultants who prey on the desperation of mostly Filipina caregivers to enter and eventually obtain permanent residence in Canada.  What struck me most about the article was the fact that government agents, particularly those from the Canada Border Services Agency,  admitted knowing about these illegal activities and the fact that they have a list of known agencies who perpetrate various types of fraud against the caregivers.  Despite this knowledge, the government does not appear to be taking any aggressive steps towards stopping these illegal activities.  Instead, the CBSA officers simply punish the victimized caregivers by refusing to issue work permits and immediately removing them from Canada.  The guilty agents (recruiters and/or purported employers) on the other hand, are not held liable for their illegal acts.  As a result, the exploitation continues as more prospective caregivers end up getting prejudiced not only by the exploiters’ heartless misdeeds, but also by the government’s indifference towards upholding justice and fairness in these situations.

Caregiver advocates therefore conclude that it is time to aggressively push for reforms to the Live-in Caregiver Program (LCP).  I totally agree.  However, we also have to ensure that these reform initiatives will not end up as being token gestures because they fail to dig deeper into the systemic issues that have long plagued this controversial program. 

First of all, the Live-in Caregiver Program should be strictly enforced to be just that – a program to provide caregiving duties to children, the elderly or disabled.   It is technically not a domestic worker program or worse, a license to conduct modern-day slavery.  As we all know, despite the provisions of the Immigration and Refugee Protection Act and Regulations limiting the function of the caregivers to taking care of children, the elderly or the disabled, a vast majority of employers require their “caregivers” to perform substantial household chores such as cleaning, cooking, washing clothes and dishes, shoveling snow, washing vehicles, serving their guests during lavish house parties or even staffing their business and cleaning their relatives’ and friends’ houses, ON TOP of their caregiving duties.  The caregivers are often required to work long hours with no overtime pay.  They are often deprived of private living quarters, are forced to eat food they do not like, or refused proper breaks or vacation and sick leaves.  The tales of excessive hardship and abuse of LCP workers are endless.

Why, one may wonder, would these caregivers choose to endure these clear violations of their most basic human rights instead of reporting them to the authorities?  There are various complex reasons.  First, the LCP itself is deeply flawed.  These flaws are a reflection of the skewed mentality behind the creation of the LCP vis-a-vis the immigration system.  Among others, the program was created mainly as an economic strategy, without a full and proper review of its social implications.  It preys on the LCP participants’ vulnerability and desperation to obtain permanent residence in Canada.  Second, the government lacks the political will to effectively implement all relevant laws that will protect the rights of the caregivers.  Third, there is no proper coordination between the relevant federal and provincial government agencies with respect to enforcing all relevant laws and regulations.

A major overhaul of the LCP’s policy framework and specific provisions is long overdue.   The perennial argument that there is currently a great demand for live-in caregivers (hence the need for the LCP) is based on the fact that the employers, recruitment agencies and others concerned are taking advantage of the loopholes in the program.  There is a demand because they are able to freely exploit the caregivers with the legal sanction of the LCP.   If the government is more diligent in prosecuting the unscrupulous practices and more vigilant in protecting caregivers’ rights, there could arguably be a reduced demand because of the reduced opportunity to exploit other people’s desperation to enter in, work and become permanent residents of Canada.  Where the demand will likely increase is for the government to provide broader caregiving services such as a universal daycare system, as well as increased funding for elderly and disabled care.  Since these are much more costly programs, the government is obviously choosing the easier alternative without a proper consideration of its moral and human rights obligations.  

One of the main objectionable features of the LCP is the mandatory requirement for the caregiver to live-in with the employer.  This requirement gives rise to numerous problematic situations and makes the LCP extremely conducive to exploitation.   By its very nature, the live-in requirement makes it almost impossible to properly enforce the labour code provisions on hours of work, overtime pay, working conditions, vacation and sick leaves, etc..  Since the caregiver is also living in the workplace, there will often be a blurring of lines between what is considered “work” and what is not.  The extensive discussions and analyses on the valuation of household work in feminist, labour and human rights literature are clearly applicable in this context.  This is mainly why the LCP should be strictly treated as a “caregiving” program, in the same way that the jobs of nurses, personal support workers and other live-out caregivers are treated and valued.  If the employer will require additional services such as cleaning, cooking, etc. then they should either hire other workers to do the job or properly compensate the caregivers for these extra duties, in accordance with applicable laws and regulations.

Another major problem with the LCP is the discrimination arising from the fact that nearly 90% or a vast majority of the participants of the program are women from the Philippines who have left their own families behind to take care of other people’s families.  It is a truly sad commentary of the current state of Philippine affairs that its highly-educated citizens would choose to leave their families behind and endure exploitative working conditions just to earn more money and support their families.   However, the Canadian government which introduced the LCP is equally guilty in that it is taking advantage of this sad state of Philippine affairs by allowing a deeply-flawed program to exploit its participants and mask what is actually a form of modern-day slavery.  The stereotyping that results from this statistical reality is also greatly contributing to the vulnerability of these workers.  If the LCP’s objectionable features are removed and the government effectively monitors its proper implementation, then it is possible that prospective caregivers from other countries will also become interested in joining the program instead of simply attracting workers from a poverty-stricken country like the Philippines. 

There is a need to fully support the call for specific and concrete changes to the LCP which admittedly, will be more practical and perhaps quicker to implement for being more politically acceptable to those in power.  Hopefully, these changes will also encourage the caregivers to more actively report abuses instead of simply enduring the exploitative practices in exchange for the promise of permanent residence for themselves and their families. 

These proposed changes to the LCP include the Juana Tejada law which calls for the exclusion of LCP participants from medical inadmissibility based on excessive demand;  the removal of the second medical examination requirement;  the provincial medical health coverage for LCP open work permit holders;  the granting of province-wide or open work permits, instead of employer-specific work permits;   the expeditious processing of work permit extensions and permanent resident applications;  the removal of the mandatory live-in requirement;  the granting of open work permits and study permits to family members from the outset to avoid prolonged family separation;  to name a few of the existing proposals.   However, without a clear recognition of the value of the work that caregivers provide and a strong political will to protect and promote the basic human rights of these vulnerable workers, then any changes that will be introduced will not be truly effective in eradicating the exploitation that these caregivers have long endured.

If the Canadian government is truly intent on pursuing its proud tradition of upholding human rights for all, then a serious overhaul of the LCP is an absolute imperative.

The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca

Friday, 27 February 2009

Another Live-in Caregiver Dying of Cancer

Filipiniana News - Rhyme or Reason
13 February 2009

As of this writing, another Filipina live-in caregiver is quietly suffering from advanced stage cancer and has been told that she has less than six months to live.  She and her accompanying family members in the Live-in Caregiver Program (LCP) permanent resident application are likely to be declared medically inadmissible for potentially causing an excessive demand on Canadian health and social services.  She is therefore seeking an exemption from this requirement on humanitarian and compassionate grounds.  

This is happening only about half a year after the highly-publicized case of Juana Tejada who was similarly diagnosed with advanced stage cancer and who was initially refused permanent residence in Canada under the live-in caregiver class.  She and her husband were later granted permanent resident status on humanitarian and compassionate grounds after extensive media coverage and public pressure. 

How many more caregivers will have to suffer a similar fate?  Do these caregivers have to beg the government for humanitarian and compassionate consideration every time one is found to have a serious illness after having completed two years of full time live-in caregiving work in Canadian households?  

These heartbreaking stories only further prove that there is something terribly wrong with the LCP and its concomitant policies.   First of all, it is totally unjust to require caregivers to undergo a second immigration medical examination after their LCP permanent resident applications have been approved in principle.  When these caregivers came to Canada, they have already been required to pass an immigration medical examination before they can be granted a work permit to work under the LCP.  They are then required to perform full time live-in caregiving work for at least two years within three years of arrival in Canada.   Once they have done so and are eligible to apply for PR status for themselves and their families, they are once again required to undergo another immigration medical examination.  This often creates problems as most of the medical issues which render them inadmissible for PR status often only arose in Canada.  The frequency of illnesses found among caregivers at their immigration medical examination, such as various types of cancer, ulcers, anemia, etc., can only lead one to reasonably suspect that the long hours of work, uncertainty in their status, separation from family, and all the stress that go with these, greatly contribute to the deterioration of their health condition.   

The requirement of a second immigration medical examination should therefore be eliminated.  Or at the very least, live-in caregivers should be included in the categories which are exempt from being declared inadmissible if their health condition might reasonably be expected to cause excessive demand on health or social services.  At present, the categories which are exempt from the excessive demand requirement are spouses, common-law partners and children who are being sponsored by Canadians or permanent residents, those who are found to be refugees and protected persons.  There is no reason why live-in caregivers cannot also be included in this list, especially considering the often tremendous hardship they have to go through just to satisfy the stringent LCP requirements in obtaining permanent resident status.   

Another problematic health-related issue in these situations is the lack of public health coverage when the live-in caregivers have been approved in principle and are issued open work permits.   Live-in caregivers are provided OHIP coverage while they are on employer-specific work permits (with positive LMOs issued by Service Canada).  However, once they apply for permanent resident status and are issued open work permits, they become disqualified from OHIP coverage because their work permits are not employer-specific.  

This is an erroneous interpretation of Regulation 552 of the Ontario Health Insurance Act  which clearly indicates that LCP participants should be granted OHIP coverage, without distinguishing whether they are on LMO-based or open work permits.  Unfortunately, bureaucrats have interpreted the law differently and have refused OHIP coverage to live-in caregivers on open work permits.   This is simply wrong and must be immediately rectified, for the sake of the many caregivers who find their health condition to have deteriorated due to the highly undesirable working conditions perpetrated by the LCP.

I can go on listing the many problems arising from the LCP.  But I will end here for now as the critical health concerns of dying individuals call for immediate action.  It is about time that the Filipino community work together and unite in knocking on the government’s doors to finally do something about this terribly unjust situation that is affecting many of our kababayans.  Enough is enough.
  
The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca

Tuesday, 27 January 2009

New Year, New Possibilities

Filipiniana News - Rhyme or Reason
14 January 2009

While thinking of a topic to write about for this month’s column, I cannot help but consider that this is the first month of the year.  Thus, I find it quite appropriate to reflect on the exciting possibilities that the new year can bring.  Please pardon the rather trite theme, but what follows are just some of my personal thoughts for the new year.

This month, the United States will inaugurate its first ever black president, Barack Obama.  One cannot help but be electrified by the overwhelming international interest in American politics arising from this and the tremendous hope that this historic event brings to the entire world.  Since the most powerful nation in the world has elected as President someone who embodies “change” in every sense of the word, then there is indeed reason to hope that the rest of the world will follow suit.

This month, the Canadian Parliament will reopen with the Conservative government’s promised new and improved economic stimulus package.  If the opposition parties accept that this will be good for the economy, then they will proceed with parliamentary business and hopefully work together to deal not only with the economic issues but also with the myriad of other social and political issues that beset this nation.   However, if the opposition parties are still unconvinced, then we could be faced with: another federal election, a coalition government, more intense political bickering from all sides, who knows.  The possibilities can be quite promising, but they can also be rather scary, or frustrating, at the very least.

In the Middle East, there is a terrible war going on, a war that has had a long and bitter history, and which has only intensified post-911.  In other parts of the world, there are likewise smaller (or possibly even bigger) wars, people dying of hunger and poverty, scandalous corruption and extremely skewed distribution of wealth, illiteracy and  brainwashing, child abuse, environmental degradation, crime and impunity, racism, discrimination and various other forms of human rights violations.  

Even as we seem like passive observers of these terrible tragedies happening outside Canadian borders, we need to be reminded that these problems do affect us and likewise occur in our midst, albeit in varying degrees and in more subtle forms.  So we need to educate ourselves and be aware of the ways by which we might be perpetuating systemic injustices or worse, be equally guilty of human rights violations by our mere act of silence and inaction.

For instance, as Filipino-Canadians, we have the wonderful opportunity of reaching out to our kababayans, to immigrants from other ethnic groups, and find ways of working towards or advocating for issues that affect this sector, e.g. immigration law reforms, accreditation of foreign credentials, racism and discrimination, settlement program funding, healthcare reforms, etc..  There are so many possibilities of getting involved in ways that will suit our capacity, availability, temperament and personal preferences.  What is important is that we do get involved in one way or another. 

It is perfectly understandable that our priorities tend to be that of improving our personal and family situations.   However, even as we struggle and evolve within our narrow personal confines, hopefully, we will also remain open to the endless possibilities of helping in any little way we can.

We need not do an Obama or wait for a tragic war of Gaza proportions before we act.  Every little effort counts.  Small acts of kindness here and there.  Respect, honesty and good faith in dealing with everyone we meet.  Hopefully, our smallest individual contributions will eventually create a tidal wave of collective action that will truly change the world for the better.

A peaceful, happy and prosperous new year to all!

The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca