The following article is by Rayyan Asif, a summer student at Stewart Sharma Harsanyi.
INTRODUCTION
How should Canada treat foreign nationals who worked as front-line healthcare professionals during the COVID-19 pandemic when it comes to immigration? Although statistics on foreign nurses in Canada during the pandemic are scarce, knowing that immigrants account for one in four of every healthcare sector worker and cautiously using data collected from the US which placed the number of foreign-educated healthcare professionals practicing during the early months of the pandemic at nearly 74,000, the impact of these foreign workers during the pandemic cannot be understated. Appreciating the sacrifices they made, Canada has not shied away from recognizing these individuals, such as through permanent residency (PR) pathways for asylum claimants who were on the front lines of the pandemic. The treatment of these workers in terms of their immigration matters has continued to be a concern for the government and policy-makers. Now, in his recent decision on July 31, 2023, allowing the application for judicial review for Bhaona Mohammed v The Minister of Citizenship and Immigration,[1] the Honourable Justice O’Reilly, after a questionable back-and-forth with the Immigration Appeal Division (IAD), re-affirmed that individuals who served Canadian society during the pandemic as healthcare workers are owed a ‘moral debt.’
This article discusses the impact of this decision and whether this ‘moral debt’ factor is a case-specific consideration or a new factor to be considered amongst those already established in Humanitarian and Compassionate(H&C) grounds considerations as well as the troubling treatment of Federal Court decisions by IAD decision-makers throughout this matter.
FACTS
Ms. Bhaona Mohammed (hereinafter “Ms. Mohammed”) arrived in Canada as an international student in 2007 and gained Permanent Resident status in Canada in 2014 through a Family Class sponsorship. This marriage dissolved six months later.
In 2016, Ms. Mohammed remarried a US Green Card holder. Her second husband’s attempts at sponsoring her for US PR were denied by 2020, and in 2020 Ms. Mohammed had to return to her family in Canada. By then, however, her Canadian PR had expired. At the Port of Entry, a Canadian Border Services Agent (“CBSA”) officer found reasonable grounds to render her inadmissible due to not complying with residency obligations.
The Officer’s decision was appealed to the IAD. However, Member Stephanie Pinto dismissed the appeal (the "Pinto Decision"). Ms. Mohammed sought judicial review and succeeded. Justice Shirzad Ahmed found the Pinto Decision to be unreasonable as it failed to take into account numerous factors favouring Ms. Mohammed, in particular her service as a Healthcare worker during the COVID-19 pandemic.
Upon redetermination, Member Mark Ferrari dismissed Ms. Mohammed’s appeal (the "Ferrari Decision"), finding that she prioritized her US residency application at the expense of her Canadian status. Other factors such as establishment in Canada, hardship upon return, and family ties were found to be insufficient to merit special relief. These factors are established in caselaw through the well-known cases of Ribic[2] and Chieu[3] as foundational, though non-exhaustive, considerations to be made in all H&C grounds. They count among what are widely referred to as the ‘Ribic and Chieu factors.’
Ms. Mohammed again sought judicial review of this second decision, which was granted on July 31, 2023, and the matter has been returned for a second time to the IAD for redetermination. This will be the third time Ms. Mohamed will appear before the IAD.
THE FERRARI DECISION
The Ferrari Decision centered on two main arguments. Firstly, despite Ms. Mohammed explaining that the reason she had not left the US was because she was poorly advised by her former lawyer that leaving would jeopardize her US application for status, Member Ferrari characterized her actions as “willful blindness” incompatible with a genuine desire to return to Canada. Member Ferrari stated Ms. Mohammed made a choice to prioritize her US residency over her Canadian residency and that the factors in her favour were not strong enough to merit special relief under s.25(1) of the Immigration and Refugee Protection Act.
Secondly, although Member Ferrari claimed to give Ms. Mohammed’s service as a Healthcare worker during the COVID-19 pandemic “considerable weight,” alluding to the ‘weight’ Justice Ahmed found the Pinto Decision to have been lacking, her service during the pandemic was stated to be no more than what many Canadians were doing to aid society, and that all Canadians owed a “moral debt” for their work in various fields, such as teachers, oil-and-gas workers, and janitors. Of significant note for later is that these arguments are eerily similar to the analysis of the Pinto Decision, which, when he made his decision, Member Ferrari was well aware had firmly been characterized by Justice Ahmed as unreasonable.
THE JUSTICE’S DECISION
Canada’s ‘Moral Debt’
Justice O’Reilly’s treatment of the Minister’s arguments, or perhaps more accurately the distinct lack thereof, characterizes his decision. Justice O’Reilly addressed only Ms. Mohammed’s efforts during the pandemic. The importance of this factor is encapsulated when Justice O’Reilly stated that “The IAD’s treatment of this issue alone is enough to render it unreasonable.”[4]
Repeatedly referring to Justice Ahmed’s reasoning, Justice O’Reilly describes how Ms. Mohammed put her life at risk at the service of Canadians, “not knowing if she would be allowed to stay in Canada.”[5] Justice O’Reilly repeated that “persons in Ms. Mohammed’s circumstances are owed a moral debt by Canadians.”[6] He stated the contributions of such people ought not be treated as ordinary and “the IAD’s decision was unreasonable as it failed to include a transparent, justifiable, and intelligible assessment of an important factor, one which this Court had already identified as critical to a proper consideration of Ms. Mohammed’s appeal.”[7]
Justice O’Reilly could have addressed the other relevant ‘Ribic and Chieu’ factors in his decision. However, he did not repeat Justice Ahmed’s sound arguments against the reasoning of the Pinto Decision which Ferrari parroted. Since Member Ferrari and the Minister concerned themselves more with the circumstances of the factors rather than the factors themselves, scrutinizing their argument would not have been challenging. However, the Learned Justice only addressed this new ‘moral debt’ factor, and solely on that basis concluded that the decision was unreasonable.
The impact of this decision is that the ‘moral debt’ factor in cases relating to those who served as pandemic Healthcare workers is strong enough to alone render an IAD decision unreasonable. Although it is only a case-specific consideration for now, it is vital for lawyers and immigration officers to recognize this ‘moral debt’ factor moving forward and grant it according weight in future [H&C and IAD matters concerning s.67(1)(c)] cases.
The evident question resulting from this conclusion is ‘what defines the scope of the ‘moral debt’ factor?’ It is inarguable that Justice Ahmed and Justice O’Reilly strongly intended for this consideration to apply to pandemic Healthcare workers, an extremely special and unique circumstance. It is also clear that the courts were not willing to let the ‘moral debt’ factor be broadly applicable as neither Justice accepted Member Ferrari’s argument that Healthcare workers deserved no more special recognition than teachers, janitors, and oil-and-gas workers. After all, if everyone is special, then no one is. But does Canada then also owe a moral debt to, for example, a foreign national doctor who saves the lives of multiple Canadians?
Admittedly, this article does not propose that Justice O’Reilly has created a new Ribic and Chieu factor. It is, as of now, a case-specific consideration. This article does submit, however, that the ‘moral debt’ factor has the potential to become a wider factor for consideration. It is well recognized that the Ribic and Chieu factors are non-exhaustive[8] and Ms. Mohammed’s case could be argued as the courts signalling such grounds are acceptable. On the other hand, this could also be a stretch as a nurse who practices today does not undergo the same danger as one who practiced during the pandemic. Then again, what makes a life saved in the pandemic worth more than a life saved today? Although his [approach] failed, Member Ferrari was certainly on the right track [with his concern that it could lead to subjective and inconsistent results].
Treatment of Justice Ahmed’s Decision
Those familiar with the previous judgment of Justice Ahmed on this matter will [be familiar] with the arguments made by Member Ferrari, as they are reminiscent of the exact arguments that Justice Ahmed previously ruled unreasonable. This repetition was certainly something that Raj Sharma KC (Applicant’s counsel) addressed, warning of a back-and-forth between the IAD and Federal Court similar to that of Vavilov.[9] This argument was validated by Justice O’Reilly in his decision.
Still, Member Ferrari’s treatment of Justice Ahmed’s decision was cause for concern. Member Ferrari did not ignore Justice Ahmed’s decision but stated he did not have to follow what he called at the beginning of the hearing, on line 75 of a 939-line audio transcript, “the advice of Justice Ahmed.”[10] Not only does this indicate Ferrari had, to an extent, already made up his mind, but such a blatant disregard for a hallmark principle of administrative law that one would expect even a layperson to understand, much less a trained and experienced Immigration Member such as Ferrari, is as confusing as it is worrisome. Aside from repeating previous arguments and dismissing Justice Ahmed’s analysis, Member Ferrari also ignores Bhimji v Canada (Citizenship and Immigration)[11], a case that Justice Ahmed found persuasive in his judgement. This fundamental misunderstanding of the relationship between the IAD and the Federal Court calls into question whether the current hierarchy of authority is truly being respected and begs a discussion about how IAD Members perceive and treat Federal Court decisions.
CONCLUSION
The new ‘moral debt’ factor is an important consideration moving forward that the court has made clear government officials must consider with due importance. Although Justice Ahmed and O’Reilly do not provide guidance on the treatment of the ‘moral debt’ factor as equal to the other ‘Ribic and Chieu’ factors, this is certainly an area for future academic and legal discourse as the courts have flagged the acceptance of such claims, which are now more likely to be made. Member Ferrari’s rather clear disregard for Justice Ahmed’s decision is also worth considerable reflection as the hierarchy of authority was, albeit unsuccessfully, challenged. Although the current concern expressed in this article may be overreaching, the coming IAD redetermination risks realizing these worries.
[1] 2023 FC 1044
[2] Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.D.D. No. 636
[3] Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84
[4] Bhaona Mohammed (2023), [17]
[5] Ibid, [18]
[6] Ibid
[7] Ibid, [20]
[8] Chieu v. Canada (Minister of Citizenship and Immigration), [40]
[9] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653
[10] IAD Hearing dated April 7, 2022, at line 74-75 of the Hearing Transcripts
[11] 2019 CanLII 54638 (CA IRB)
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