Date: 20221110
Docket: IMM-5867-21
Citation: 2022 FC 1537
Toronto, Ontario, November 10, 2022
PRESENT: Mr. Justice Diner
BETWEEN:
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KELVIN IFEANYI OTITEH
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YVONNE OTITEH
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KYLE OCHILIGWE OTITEH
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NICOLE IJEOMA OTIEH
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1] The Applicants seek judicial review, pursuant to s. 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act], of a decision by an immigration officer [Officer] dated August 25, 2021, refusing their application for permanent residence. For the reasons that follow, I will dismiss this Application for judicial review.
[2] I provided my decision upholding the Officer’s decision from the bench, and promised reasons to follow. These are my Reasons.
II.
Background
[3] The Applicants, a couple and their two minor children, are Nigerian citizens who arrived in Canada in 2018 and filed claims for refugee protection.
[4] While living in Canada, the Principal Applicant took courses in personal support work, hoping to work with his wife in the health care sector. His wife opened and currently manages a company that provides non-medical in-home services to seniors, people recovering from illnesses and injuries, and patients with dementia.
[5] In April 2021, the Applicants applied for permanent residence 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 [Policy]. Under the Policy, refugee claimants working in Canada’s health care sector and providing direct care to patients during the COVID-19 pandemic may be granted permanent residence on the basis of sufficient public policy considerations, pursuant to s. 25.2 of the Act. The Policy outlines specific eligibility conditions (see Annex B). The Policy also excludes most inadmissible refugee claimants.
[6] At the time of the application for permanent residence, the Principal Applicant was inadmissible on grounds of criminality under s. 36(2) of the Act, having been convicted in September 2020 of one count of operation while impaired under s. 320.14(1) of the Criminal Code, RSC 1985, c C-46. As a result, the Principal Applicant applied for an exemption from inadmissibility, based on humanitarian and compassionate [H&C] considerations.
III.
Decision under Review
[7] The Officer refused the Applicants’ permanent residence application on August 25, 2021 [Decision], finding that the Principal Applicant was inadmissible on grounds of criminality under s. 36(2) of the Act, and thus the Applicants were ineligible to receive permanent residence under the Policy.
[8] The Officer noted the Principal Applicant was ineligible to have his exemption request and application processed under H&C grounds as he had a pending refugee claim before the Immigration and Refugee Board [IRB].
IV.
Issues and Standard of Review
[9] The Applicants raise two issues before this Court: (i) the Officer failed to apply ss. 25(1) and s. 25.2 of the Act by finding that the Principal Applicant was ineligible to have his exemption request and application processed under H&C grounds; and (ii) the Officer’s erred by finding the Applicants were ineligible for permanent residence under the Policy because of the Principal Applicant’s inadmissibility under s. 36(2) of the Act.
[10] The Applicants submit that the applicable standard of review for both issues is correctness, because they are issues of law. I disagree. The issues raised in this Application engage the Officer’s discretion under the statutory scheme set out in the H&C and the public policy considerations sections of the Act. Thus, these issues require this Court to apply the deferential standard of reasonableness review (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 26 [Vavilov]).
[11] The first issue engages the Officer’s discretion to grant an exemption and consider the permanent residence application under H&C grounds. This issue attracts a standard of reasonableness, as established by the Federal Court of Appeal [FCA] in Tapambwa v Canada (Citizenship and Immigration), 2019 FCA 34 at para 31 [Tapambwa]. The second issue engages the Officer’s discretion in assessing the Applicants’ eligibility for permanent residence under the Policy.
[12] The Applicants have not identified any other basis to rebut the presumption of reasonableness review (Vavilov, at paras 16-17). A reasonable decision is one which is transparent, intelligible, and justified in relation to the relevant factual and legal constraints (Vavilov at para 99). The Court must be satisfied that any flaw or shortcoming in the decision is more than just superficial or peripheral to the merits of the decision, but that it is sufficiently central or significant to render the decision unreasonable (Vavilov at para 100).
V.
Analysis
A.
The Officer’s finding that the Principal Applicant was ineligible for an inadmissibility exemption under H&C grounds was reasonable.
[13] The Applicants argue that the Officer determined that the Principal Applicant was ineligible pursuant to subsection 25(1.2)(b) of the Act, which the Applicants submit is not applicable in this case. They contend that the Officer should have considered the H&C considerations put forth in the exemption request pursuant to ss. 25(1) and 25.2 of the Act (ss. 25(1), 25(1.2) and 25.2 have been reproduced at Annex A to these Reasons).
[14] The Applicants propose that since in this case the Minister has enacted a public policy specifically for refugee claimants under s. 25.2, therefore s. 25(1.2)(b), which prevents the Minister from considering the H&C circumstances of refugee claimants, is not applicable. This, according to the Applicants, means that the Minister is no longer barred from considering the H&C circumstances of refugee claimants under s. 25(1.2)(b): he must consider the H&C circumstances of the Applicant pursuant to s. 25(1).
[15] I disagree with the Applicants’ interpretation of the mechanics of ss. 25(1), 25(1.2)(b) and 25.2 of the Act, which would produce absurd consequences, contrary to the principle of legislative interpretation established by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, 36 OR (3d) 418 at para 27.
[16] According to the Applicants’ interpretation, s. 25.2 would allow the Minister to override the exceptions to s. 25(1) but not s. 25(1) itself. The Applicants submit no case law to support this proposition and I find that a plain reading of s. 25(1) does not impose such restrictions on the Minister’s discretion with respect to public policy considerations. The analyses of the applicability of ss. 25(1) and 25.2 are discrete. To conjoin them in the way the Applicants propose, means to confound them. Rather, they are uniquely distinct provisions, as was illustrated in the following analysis of the FCA at para 103 of Tapambwa:
The former [s. 25(1)] contains mandatory language. The Minister “must” consider requests for humanitarian and compassionate relief. Section 25.2 in contrast, is discretionary. The Minister “may” consider granting relief. This is not a situation where the permissive or discretionary word, “may,” can be read as mandatory.
[17] Here, the Officer reasonably carried out the analyses under ss. 25(1) and 25.2 to determine whether the Principal Applicant was eligible for an inadmissibility exemption for H&C grounds under either of these provisions of the Act. He found the Principle Applicant was ineligible for an inadmissibility exemption under both provisions.
[18] First, with respect to s. 25(1), the Officer reasonably declined to consider the H&C grounds put forth by the Principal Applicant, because of the exception under s. 25(1.2)(b), since the Principal Applicant had a pending refugee protection claim before the IRB at the time he submitted his permanent residency application under the s. 25.2-founded Policy .
[19] Second, with respect to s. 25.2, the Officer found no discretion to consider the H&C grounds put forth by the Principal Applicant, since s. 5 of the Policy states that the exemptions to inadmissibility under the Policy do not include s. 36(2) (serious criminality). As he had been convicted of an offence rendering him inadmissible under s. 36(2), the Officer reasonably determined the Principal Applicant’s was ineligible for an inadmissibility exemption under the Policy. This segues into the second issue raised, which for similar reasons, the Officer reasonably found that the Applicants were ineligible for permanent residence under the Policy.
B.
The Officer’s finding that the Applicants were ineligible for permanent residence under the Policy is reasonable.
[20] Section 5 of the Policy stipulates that the only kinds of inadmissibility that are permissible for foreign nationals applying for permanent residence under the Policy are (i) overstays, (ii) illegal work/study or (iii) entering the country illegally (see Conditions 5, 9 and the “Admissibility Requirements”
of the Policy in Annex B to these Reasons). None of the three Policy carve-outs to the exclusion of other inadmissible persons, apply to the Principal Applicant, or anyone else who is inadmissible under s. 36(2). Under the legal maxim of expressio unius est exclusio alterius (“to express one thing is to exclude another”
), if the Minister expressed only those three inadmissibilities as inclusions, he specifically intended the exclusion of others (see, for instance, Canada v Loblaw Financial Holdings Inc, 2021 SCC 51 at para 59).
[21] The Applicants submit that the legislative intent of the Policy is to recognize the significant contributions made by refugee claimants who put themselves at risk of contracting COVID-19, while working in designated occupations and providing direct care to vulnerable patients in need. Therefore, the Applicants argue that for equitable reasons, they should have been eligible for permanent residence under the Policy, having met every other eligibility requirement under the Policy, except for the Principal Applicant’s inadmissibility.
[22] This Court has determined that there is no objective content to public policy, it must be defined by the legislator who was elected to do so (Tapambwa at para 103, citing De Araujo v Canada (Citizenship and Immigration), 2007 FC 393 at paras 19-23). Thus, neither the Officer, nor this Court in review, can define what is equitable and sufficient under public policy considerations to grant permanent residence. That task falls squarely to the Minister, who has done so in the comprehensive requirements set out in the Policy’s eligibility criteria, as prescribed in its “conditions”
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[23] Section 25.2 stipulates that the “Minister may … grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the foreign national complies with any conditions imposed by the Minister”
(emphasis added). The Minister clearly crafted the policy consistent with the language of the Act, stating in the “Admissibility Requirements”
section, that “the foreign national (and their family members) must meet all admissibility requirements, other than those for which an exemption was granted to them under this public policy under condition 5 exempt the Principal Applicant from this requirement, on the basis of what he thinks is equitable.”
[24] One cannot read in another exception to the criteria of the Policy as the Applicant wishes to do. The policy-making function as outlined in the Policy is the unique ken of the Minister, and the Officer’s interpretation was entirely consistent with it.
VI.
Conclusion
[25] The Officer’s Decision to refuse the Applicants’ permanent residence application was reasonable. I will dismiss this Application for judicial review. The parties propose no question of general importance for certification, and I agree that none arises.
JUDGMENT in IMM-5867-21
THIS COURT’S JUDGMENT is that:
- The application is dismissed.
- No questions for certification were argued and I agree none arise.
- There is no award as to costs.
"Alan S. Diner"
Judge
Annex A
Relevant sections of ss. 25(1), 25(1.2) and 25.2 of the
Immigration and Refugee Protection Act, SC 2001, c 2
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Annex B – The Policy
Health Care Worker Policy Eligibility Requirements applicable to principal applicants
The following is an extract reproduced from the Policy, which can be found in full at https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/permanent-residence-healthcare-pandemic-canada.html:
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
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IMM-5867-21
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STYLE OF CAUSE:
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KELVIN IFEANYI OTITEH, YVONNE OTITEH, KYLE OCHILIGWE OTITEH, NICOLE IJEOMA OTIEH v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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PLACE OF HEARING:
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HELD BY VIDEOCONFERENCE
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DATE OF HEARING:
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November 9, 2022
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JUDGMENT AND REASONS:
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DINER J.
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DATED:
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November 10, 2022
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APPEARANCES:
Adetayo G. Akinyemi
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For The Applicants
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Stephen Jarvis
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
Adetayo G. Akinyemi LLP
Barristers and Solicitors
Toronto, Ontario
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For The Applicants
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Attorney General of Canada
Toronto, Ontario
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FOR THE RESPONDENT
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