Ottawa, Ontario, September 7, 2022
PRESENT: The Associate Chief Justice Gagné
I.
Background
[1] The applicants are members of a Nigerian family whose refugee protection claim in Canada was rejected. The principal applicant, the father of this family, subsequently made an unsuccessful attempt to qualify under the Temporary public policy to facilitate the granting of permanent residence for certain refugee claimants working in the health care sector during the COVID-19 pandemic.
[3] The applicants admit that the principal applicant did not meet this first criterion but argue that he did not have to because the eligibility criteria are non-cumulative and non-binding; he only needed to show that he had worked in the health sector for at least six months full-time prior to August 31, 2021. Therefore, they are of the view that the immigration officer’s decision is unreasonable, as it is based on an erroneous interpretation of the policy.
[4] For the following reasons, I dismiss their application.
II.
Analysis
[5] The policy in this case was implemented during the COVID-19 pandemic that broke out in Canada in March 2020. It was announced by the government on August 14, 2020, came into force in December 2020 and remained in effect until August 31, 2021. It describes the extraordinary contribution of refugee protection claimants who have worked in the health sector since the beginning of the pandemic, often at the risk of their health or even their life. It applies to refugee protection claimants whose claims have been rejected or are awaiting a decision and who meet the eligibility conditions set out in the policy. It exceptionally offers them permanent resident status.
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[8] I disagree. While the French version of this text may leave the reader perplexed, there is no ambiguity in the English version; the use of the coordinating conjunction and clearly indicates that the conditions listed therein are cumulative and not disjunctive. In my view, the immigration officer’s interpretation was both reasonable and correct.
[9] The context and timing of the policy also explain this interpretation. The policy was announced at the end of the first wave of the pandemic, when no one could have predicted what was going to happen next. It was adopted in December 2020, in the middle of the second wave, when hardly anyone could have predicted when the pandemic would end.
[10] It is logical that the policy is primarily intended to reward those who readily helped others and worked during the first wave without even knowing that they were likely to benefit from doing so. That is why the first condition is important.
[12] According to the applicants, the immigration officer’s rejection letter confirms their interpretation that the conditions are disjunctive. This letter is in English because the applicant submitted his application in English. The officer wrote as follows:
You are not eligible under the new temporary public policy, because:
[15] I disagree. The use of “or”
is required because this portion of the rejection letter is in the negative form. This means that the rejection is due to the applicant not meeting either of the conditions (not both). It is well known that immigration officers use standard letters in these types of cases and that the notes in the file are part of their decisions. The officer could have checked which condition or conditions were not met but instead chose to highlight it in yellow. In doing so, the officer clarified that the rejection was based on the failure to meet the first condition and that he did not consider the conditions to be disjunctive.
[16] As promised, I now return to the emphasis placed on the first condition by the immigration officer. In the Applicants’ Record, the applicants submitted a different version of the rejection letter. In this version, the excerpt quoted above reads as follows:
You are not eligible under the new temporary public policy, because:
(The portion in bold type above is, once again, highlighted in yellow in the applicants’ version.)
[18] The Court has the electronic version of the Applicants’ Record on which the identity of the person who altered the document after it was issued can be seen. It seems that that this person is the applicants’ counsel.
[19] Altering a document that is on the Certified Tribunal Record is serious and must be condemned.
[20] However, the applicants also reproduce this portion of the decision letter in their memorandum, this time without any emphasis. The part where the immigration officer stipulates that the claim has been rejected because of a failure to meet the first of the two conditions is missing.
III.
Conclusion
[22] Since I am of the view that the immigration officer correctly interpreted and applied the public policy in this case, and that his interpretation is consistent with its intent and the objectives of the government, intervention by the Court is not required. The parties did not propose any question of general importance for certification, and I am of the view that this matter does not give rise to any.
Certified true translation
Michael Palles