Discussing the Bhaona Mohamed case, the IAD flouting Justice Ahmed’s Decision, and the Role of the Federal Court, on the Borderlines Podcast
I went on Borderlines, the excellent immigration law podcast, to discuss the recent decision of Justice O’Reilly that will result in a third IAD hearing for Bhaona Mohamed, a frontline LTC healthcare worker that sought humanitarian relief to overcome a breach of the residency obligation. The transcript is below.
Steven Meurrens: Hello and welcome to Borderlines. A podcast for the discussion of Canadian immigration law. I’m Steven Meurrens. In Episode 69 of this podcast, recorded about a year ago, Raj Sharma was our guest to discuss his case, Mohammed v. Canada Citizenship and Immigration 2022 FC1.
There in setting aside the refusal of an immigration appeal division decision Justice Ahmed stated, “As a healthcare aide, the applicant risked her own health and safety to support health comprised and aging individuals. She is applying the very skills she acquired in Canada over a decade ago at a time when they’re desperately needed while not knowing if she herself will be able to stay in Canada. To frame this commitment and these contributions as only a “moderately positive” factor in the applicant’s appeal is unintelligible. The moral debt owed to immigrants who worked on the front lines to help protect vulnerable people in Canada during the first waves of the COVID-19 pandemic cannot be overstated. I do not find that the Immigration Appeal Division gave this contribution, the weight it deserved.”
Now, when the matter went back for a rehearing at the Immigration Appeal Division, the IAD Member stated on this issue
“I also agree that society owes a moral debt to all frontline workers who put themselves at risk and persevered under very difficult work conditions during the pandemic. However, I do not fully agree that this moral debt and the insinuation that certain work deserves more consideration in the context of a residency obligation appeal is an appropriate consideration.
Many, if not most Canadians, work hard to contribute to the betterment of society. Through their hard work and efforts we enjoy a high standard of living and a degree of freedom and security that is the envy of many throughout the world. It is only through all these individual contributions that we are able to achieve this. I find that it is difficult and subjective to state that some forms of work deserve more regard than others. In the context of the Coronavirus pandemic, this may be easier to do.
This was a once in a lifetime scenario that led to unprecedented changes to society and the risk profile of many jobs. However, I found that this difficulty becomes more apparent if one were to use this logic outside of the context of the pandemic. As an example, it could easily be argued that we owe a moral debt to teachers who work directly with students. However, how does this compare to the moral debt owed to janitorial staff in schools who are paid less and often work late shifts in physically demanding roles? Through their efforts our students have clean, safe, and functional spaces in which to learn.
How would we assess the moral debt owed to oil and gas field workers who often work in remote areas away from family and in dangerous work environments? Without their efforts, the mechanical and transport systems that are necessary for our schools to operate would cease to function.
If we were to determine that the moral debt or consideration given to different types of work should differ, there would need to be a framework to do so. Without this, this exercise quickly becomes subjective with inconsistent results.
Therefore, while I agree with appellant’s counsel that we owe a moral debt to frontline workers who put themselves at risk during the pandemic, I do not necessarily find this different than the moral debt we owe to all Canadians who directly and indirectly contribute to the benefit of our society. The work of all of these individuals is a positive consideration when considering establishment.”
The Immigration Appeal Division then dismissed the appeal. Raj sought judicial review of the decision, arguing that the Immigration Appeal Division did not respect the Federal Court’s binding judgment. And that brings us to today’s episode, which is a discussion of Mohamed v Canada Citizenship and Immigration 2023 FC 1044 is the neutral citation or Mohamed Number Two.
The episode provides and the case provides an interesting and unique opportunity to discuss how does redetermination work and how do Federal Court of Canada decisions bind or not bind future Visa officers or immigration tribunal members? Once again, if you enjoy today’s episode, I hope you leave a review on iTunes and enjoy.
Raj Sharma: I think that generally speaking, in litigation or as litigators, we always have, and given enough time in this field, you’re going to have certain cases that sort of stick with you or stick or [become] associated with you. And obviously we all know Lorne Waldman’s cases, Barb Jackman’s cases of course, the seminal Singh decision, the Kanthasamy decision innumerable other cases as well. So I suppose Bhaona Mohamed will be one of those cases for me and I’m quite happy that that’s one of my cases because a lot of my other cases of note involve serious criminals or organized criminality or individuals that are facing exclusion from the convention refugee definition. Bhaona Mohammed is a case that I’ll put next to Aboubacar [2014 FC 714], another case of mine that dealt with Section 25 that was cited with approval in [the Supreme Court of Canada’s decision] Kanthasamy.
So this is a good case, it’s a “feel good” case, it’s concerns a very deserving individual. Ms. Mohammed came to Canada many, many years ago as an international student. I think back in 2009 or so. She graduated. She even worked here [in the health care field]. There was no ready pathway for permanent residence for her at that time. So she went back to her country of nationality. That is Fiji. She returned a couple of years later. She had been sponsored by her first husband. Marriage didn’t work out and she proceeds to build her life in Canada. And indeed at one point she was spitting distance of applying or being eligible for Canadian citizenship. Life, of course, is not always so straightforward. She falls in love with a friend or a former boyfriend who’s in the US is a green card holder.
She goes down there, he’s Muslim, his parents discovered this relationship, they sort of insist that they get married. They do get married. She ends up unexpectedly and unforeseen, she ends up getting married and applies for residency in the US. And there was some issue as to the legal advice she got. Essentially, she should have done consular processing and shouldn’t have done it from within the US. And again, she stayed in the US. She stayed technically beyond her period of her status.
We could look at that in Canada and say that that’s probably analogous to some sort of implied status. Lo and behold, some years pass. Ultimately a decision is rendered, which is no. You’re ineligible for processing. You have to leave the US. And so she does. She had left Canada for Fiji years ago, and then we have her leaving the US back to Canada. Now by the time she came back to Canada, she was far short of the residency obligation, [which is] 730 days out of five years. That is the first stage of this story. Which is we have a negative residency determination at the port of entry, that is appealed to the IAD [the immigration appeal division]. That was before Member Stephanie Pinto.
By that point, COVID had happened. By that point she’s working in a long-term care facility. Again, it was the early days of COVID and there was a lot of unfortunate deaths in [this and other] llong-term care facility. The vaccines were being rolled out. In any event, that was a significant element that we advanced in terms of the Ribic and Chieu assessment. We have someone who’s contributed during a very difficult time and ultimately [Member] Stephanie Pinto refused relief [and dismissed the appeal]. That [resulted in the] the first Federal Court [decision before Justice Shirzad Ahmed]. So that was, we had filed an application for leave in judicial review. We got leave. The matter was heard before Justice Ahmed. [During the hearing] there was some talk of this moral debt, this moral obligation.
And Justice Ahmed essentially took it, ran with it. And so we can see from his perspective that are we adding something to the Ribic and Chieu factors? Did the IAD not give due regard to a very significant issue before it? That is the moral obligation. The evidence before the IAD of course was that there was significant [impact] or racialized immigrant frontline healthcare workers were disproportionately affected by the pandemic. That was the evidence before the IAD. And in passing, I think Justice Ahmed also talked about another case. Bhimani [a PR who had also sought humanitarian relief at the IAD], who was someone with medical training who wanted to practice or intended to practice medicine and help marginalized groups. I think [Bhimani] had 50 days in Canada and that person had gotten relief at the IAD.
It goes back [to the IAD] and yeah, I was expecting obviously a different sort of… I think in our last podcast or interview, I had commented that perhaps, perhaps I’d taken things too lightly. I thought I had a good draw with Member Pinto. I thought we had Bhimani of course. And so did I do everything. And you always question yourself after loss in any event. So this time around for sure, I was ready, covered everything. And I had, I thought, another good draw. I had Member Mark Ferrari [I had] appeared before many, many times before. So again, I was good. And this time I had an even more reasonable CBSA hearings officer, Tony Osterling, who I’ve known for two decades, very reasonable individual. And if you ever look at the transcript, didn’t put up much of a fight really on this case.
And I made that comment later to Member Ferrari, which is like, look, you can tell the strength or lack thereof of my friend’s argument. He’s a very, very experienced CBSA officer, and he’s recognizing that we have a very strong application. So in any event, I should have known, I was probably in trouble again at the very start of this proceeding. Because I am saying to Member Ferrari that Justice Ahmed’s decision is binding upon him. And I’m looking at this transcript right now.
“This is an issue in terms of analysis. Let’s say the ingredients are the same, but the calculation or analysis is fundamentally changed because of Justice Ahmed’s decision, which will be binding upon you in terms of her frontline work as a healthcare worker during the COVID pandemic.”
And the next couple of minutes later, I should have realized here we’ve got a problem because Member Ferrari then says, “I agree that questions are weighing and Mr. Sharma respectfully, I’m going to disagree that I have to follow the advice of Justice Ahmed on this one.”
Steven Meurrens: That was the Member or the CBSA?
Deanna Okun-Nac…: No, that was Ferrari. The Member.
Raj Sharma: That’s the Member. So at that point, at that moment, I knew that whatever I thought, obviously Member Ferrari was on a totally different page.
Steven Meurrens: So, that doesn’t appear in the actual Federal Court decision, the verbatim of what the Member said. Can you read the passage again?
Raj Sharma: And I think Justice O’Reilly at this point had put, I think his head into his hands, because that’s where I started from. I said, I should have known this is when I should have known. And I took Justice O’Reilly straight to the transcript and I said this out to him and I said, “Sir, advice, advice, that word advice.” I said, “Sir, advice is what you get from your father or your grandfather. And sometimes you can disregard advice, but an inferior administrative decision maker characterizing a Federal Court on point jurisprudence on the exact same case to characterize that as advice is undermining stare decisis, undermining fundamental concepts of common law like the rule of law.”
…That word advice. And so at that point, Justice O’Reilly said, “Well, sometimes Mr. Sharma advice from your father or grandfather is more like a directed verdict.” I said, “I agree completely, sir.” But in any event, this is how Member Ferrari starts. This is before testimony. “Mr. Sharma, respectfully, I’m going to disagree that I have to follow the advice of Justice Ahmed on this one.” That’s the quote. And that was the start of my oral argument in front of Justice O’Reilly. You can imagine that that found some ground there with a Court to see that an inferior decision maker or administrative decision maker like the IAD can be so cavalier with on point reasons from a Jurist of the Federal Court.
Steven Meurrens: Was the statement that the IAD was just going to disagree with the Federal Court, was that delivered orally or did you only get that in written reasons? Did you know it was coming, sort of, that the Member would just disagree with the Federal Court?
Raj Sharma: I didn’t think that that was possible. I mean, I believe that Member Ferrari is legally trained or is a lawyer. So I didn’t anticipate that we would have that issue. And what you can see in the decision is that… And it’s a very convoluted process that Member Ferrari does. And I said that to Justice O’Reilly. I said, “Look at this tortured analysis.” And I think Justice O’Reilly goes to the same paragraph. So if you look at paragraph 33, “Appellant’s counsel made persuasive arguments.” Paragraph 34, “I agree with many aspects of appellant’s counsel’s submissions.” And then here, paragraph 35, this is where things go off the rails here. “I do not fully agree that this moral debt and the insinuation that certain work deserves more consideration is an appropriate consideration.” This is where we get into this imaginary, this strange rabbit hole, which is “many, if not most Canadians work hard to contribute to the betterment of society. It is only through all these individual contributions that we are able to achieve this. I find that it is difficult and subjective to state that some forms of work deserve more regard than others.”
So then we talk about, I don’t know, we start talking about janitorial staff and schools. We start talking about the moral debt owed to oil and gas field workers who work in remote areas away from family. And so, what [Member Ferrari] he does is that, and again, no one asked him, there was no evidence as to the mortality or fatality or the issues faced by oil and gas workers working far from home in the field. No one talked about janitorial staff and the higher rate of covid that they had. And so he goes on this sort of frolic, like this sort of invented straw man, then proceeds to tear it down, and then presents some kind of decision that he thought that would be immune to judicial review. I’m not sure exactly what happened here. To say that I was surprised would be an understatement …
Steven Meurrens: And it sounds like Justice O’Reilly was surprised also. Federal court decision doesn’t completely reflect in my opinion that the IAD just… It doesn’t reflect actually what the IAD wrote. Because, the Federal Court decision just says that the IAD’s interpretation was not a reasonable application of Justice Ahmed’s decision.
Raj Sharma: And that’s fine. And look, different justices have different perspectives. So you may have someone at a certain stage of their judicial career taking the bull by the horn, shall we say. You might have a justice at a different stage of his or her career doing what’s necessary, what’s appropriate. He didn’t cover all of the areas that I would’ve loved for him to cover, but I put that to him. I’m like, whatever you’d like to do. Shall we talk about stare decisis? Shall we talk about the rule of law? Shall we talk about the IAD in essence disrespecting the Federal Court on an point issue? So we can talk about that. We can talk about the moral debt further. We can talk about other issues that were raised in my memorandum of argument, [in this case] he took the course of least resistance. I have no issues with that.
I am a big fan of Justice O’Reilly, and it’s the first time I’ve appear before him after many, many years. I think he’s an eminently, fair-minded jurist. I take no issue that he didn’t go down my various arguments. I mean, you put your best argument forward and it’s essentially that Justice Ahmed dealt with this in a conclusive fashion. And we have the IAD conclusively rejecting it and characterizing it as “advice”. The DOJ argument surprised me even further. The Department of Justice argument was that actually the judgment and the reasons and the decision are all separate things. And Justice Ahmed’s comments on the moral obligation is obiter. Now everyone sort of knows what Obiter is. Obiter is like, okay, I’m going to make this sort of comment and it’s not really binding and it’s just blah, blah, blah. But we know what Obiter is.
I think Justice [inaudible 00:20:32] does obiter and some Hungarian or Romanian state protection for Roma for example. And in obiter puts a line underneath it about the treatment of Roma in those countries. And his own personal, let’s say his personal comments there, but he felt it was important to put it in, but he wanted to make it clear that wasn’t part of the judgment and reasons. That’s obiter. So the Department of Justice started with this, which was really interesting, cited a case from the Federal Court of Appeal and said its binding. Luckily I read that case and the next paragraph it said quite clearly that the reasons and the judgment are together.
Deanna Okun-Nac…: I’d be interested as to what their perspective is on what the ratio of that case was. If that was all just [inaudible 00:21:17].
Raj Sharma: I don’t know, Department of Justice counsel [inaudible 00:21:21], and I have a good working relationship and I put in everything about this case because I know it, and I told Justice O’Reilly, “if you have any questions, let me know because this is my case from beginning to end”. Sometimes as a litigators, we come in, we’re second, third counsel, and you really can’t blame counsel. Oh, so-and-so lost that case. Well, did they have it from the beginning? Were they stuck with a particular factual matrix or profile?
This case was mine from the beginning. So I’m like, “It’s my responsibility. I own it, it’s mine”. So I’m running this case and I’m explaining the conditions at Bethany Care Center, where she’s providing care in very, very difficult circumstances, and I’m not sure what happened. Ms. Ahluwalia stands up and she says, “Well, that’s very melodramatic of my friend. My friend is being melodramatic here.” And she’s like, “It’s not as if there were dead bodies in the hallways.” And I sit back. So I’m waiting for my chance at reply. I start going through the transcript, … And when I stood up for my reply, I said, “Well, my friend talked about whether that I’m being melodramatic, that may in fact be accurate.” It’s not like the first time I’ve been accused of that.
Deanna Okun-Nac…: [inaudible 00:22:56] Shakespeare in the course.
Raj Sharma: I said, “You know what? That’s entirely possible. I blame the Bollywood movies that I grew up on in terms of my melodrama.” But if we want to talk about dead bodies, let me take you to page 273 of the applicant’s record, the transcript where my client is testifying about wrapping up dead bodies in three layers of plastic, because their families were observing this through some window or glass. Let’s go through that transcript: “I do all activities on daily living for the elderly. We dress them, bathe them, feed them, help them with lifts and transfers. We provide end of life care. I’ve cared for residents who have passed away preparing the body for viewing by family members.”
“These individuals passed away from COVID?” That’s me. Bhaona “Yes”. This information is in Exhibit A3. Me: “Has there ever been COVID outbreaks in Bethany Care?” Bhaona: “Multiple times”. So again, almost a perfect setup. I mean, you have your opponent say something, “my friend is being melodramatic. It’s not as if there’s dead bodies in the hallways that she’s dealing with.” [That allows you] you go right into that record. And again, I don’t know my friend’s perspective. If I was DOJ counsel, I would stay away from anything that takes the judge into the record. What you want to say [as DoJ] is there’s a reasonable decision. [The decision maker] considered everything and ultimately judicial review is not a substantive appeal and we can disagree with the result. But how was the process? Right? That’s what I would be doing. I would be doing this 20,000, 30,000 foot overview, but she said there’s no dead bodies.
What that reveals is that she didn’t read the transcript. Now again, luckily I was there. Obviously when I read the subsequent transcript, I’ll remember that this came up. But it was a very interesting and surprising process where I had the first CBSA officer –who I didn’t have a good working relationship. And again, who suggested that Ms. Mohamed worked in a LTC facility during a pandemic for a virus that we know very little about to bolster her appeal. My response? Well, that’s kind of insane that someone would risk their life [from an unknown virus] to bolster an IAD appeal like a year down the line. That was that. Again, I take no issue with Member Pinto’s decision itself. Again, I think her decision was intellectually honest, at least. Subsequent to the Pinto decision. I had another LTC Nepalese woman on a misrep, not a residency shortfall. Member Pinto applied Justice Ahmed’s decision and said, this is a binding upon me.
Member Pinto obviously took the decision to heart and moved forward. The second decision, the Ferrari decision, I have a very reasonable CBSA officer, Tony Osterling, a wonderful gentleman, but I got a very strange decision. And it’s kind of ironic that Ms. Mohammed, these decisions, these negative decisions, the names of these decision makers. One is Pinto, one is Ferrari. It’s like these car manufacturers or car company. I don’t know what’s in store there. But it was very interesting proceeding. It was obviously two Federal Court victories and a third IAD hearing coming up.
Steven Meurrens: Well, I think it also has lasting… So when you’re trying to find cases about how tribunals should interpret Federal Court decisions, it’s very hard to search that, right? What do you search on Canlii or Quicklaw, how tribunal should interpret decision? And this is one of the only pronouncements that I have seen where the judge addresses how a judicial… The paragraphs in a judge’s decision are binding on whether it’s visa officers or tribunal members. And I do think, and it’s part of why we wanted to talk about this case, it’s important that the decision be publicized and well-known. Because it is hard to find those cases, especially when something goes back for redetermination. People often ask, what does it mean if we win in court? Will the future officer or tribunal or IAD respect the judge’s decision? And you can say yes, because you know the principle of stare decisis. This is a case that actually explicitly addresses that issue.
Raj Sharma: There was a case that I was going to use and ultimately I decided not to use it, but it’s a case that’s fairly well known to the legal bar in Alberta. It concerns a master in chambers, a Master Fundak Funduk. He was sort of known for well-written pithy decisions. So this is a case Master Funduk from 1979. And I’ll read it out. It’s actually quite amusing. So essentially one of the parties asked him to depart from this sort of Supreme Court of Alberta trial division. Now the Court of Queens Bench decision.
“I am bound by decisions of judges of this court unless they have been overruled by our court of appeal or the Supreme Court of Canada. Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder. I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply masters and chambers of a superior trial court occupy the bottom rank of the superior court’s judicial matter.” Paragraph 53. “I do not overrule decisions of a judge of this court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.”
Deanna Okun-Nac…: That’s interesting.
Raj Sharma: I think Member Ferrari somehow, somehow thought that the IAD is on par or has some sort of inherent jurisdiction. Again, this would be a departure from everything that we know. We know that the IAD does not have plenary jurisdiction. We know that the IAD is an administrative tribunal, which is necessarily created by statute, and it is circumscribed by statute. Fair enough. The Federal Court is also created by statute. In any event, the pecking order is very well-defined.
Deanna Okun-Nac…: I mean, I have to say that I have seen some somewhat surprising decisions of a similar nature. We’ve discussed before on the podcast situations where there’s a joint recommendation by counsel. And I fairly recently was in front of the Federal Court where Member Ferrari decided not to take a joint recommendation by the parties. And again, that was something that came up for discussion at the Federal Court and it ended up on this random wild goose chase around… Steve and I’ve covered this decision where it ended up being about defining a new set of rules for how to distinguish between when a stay is a appropriate remedy.
Anyways, Mr. Justice Ahmed went off in completely a different direction in interpreting this decision. But ultimately, one of the things that this case and this conversation makes me think, Raj, is that the opportunity for even a very seasoned litigator to get caught flatfooted in the IAD hearing where you’re like… I remember talking to very senior practitioners afterwards and being like, okay, well when we put forward a joint recommendation, I didn’t think that there needed to be further argument really. I was like, okay. But again-
Raj Sharma: You can see jurisdictional creep by the IAD. I had a Member Annette Anselm suggest that as well. …
Steven Meurrens: Sorry, suggest what?
Deanna Okun-Nac…: I had a very similar situation with that exact same Member. And again, it got overturn at the Federal Court. But I think actually that was also a joint recommendation that was rejected. And so ultimately-
Raj Sharma: You have that decision concerning Annette Anselm before Justice Zina, I believe in terms of bias.
Deanna Okun-Nac…: Yeah, that’s right.
Raj Sharma: Remember one thing. It’s almost cliche to compare litigation to war, to boxing to other contact sports. But in boxing, you always get knocked out by what you don’t see coming. So as a lawyer, I simply did not anticipate a departure from a role or acknowledgement of subservience from the IAD with respect to the Federal Court return decision. Now, we’ve all done this. The Federal Court returned to the RPD prior to RAD, the Federal Court return to the IAD, the Federal Court return. You always see some acknowledgement by that decision maker and then going down a sort of different route. You’ve never quite seen an IAD board Member directly challenge the Federal Court on… And look Ferrari again, How did he get lost in the weeds? I don’t know. Was it because he truly felt that it was subjective? It’s not subjective. There was no evidence regarding oil and gas workers. There was no evidence regarding janitorial staff at schools. The only evidence before the IAD was the disproportionate impact of COVID and the pandemic on racialized immigrant on frontline healthcare. That’s it.
Deanna Okun-Nac…: But I actually do wonder-
Raj Sharma: He opened it unnecessarily, I think, and that’s where he may have gotten caught in his own sort of logical weeds of his own construction.
Deanna Okun-Nac…: Agreed. Well, but I think that the argument made by Justice that this was all obiter, that could have been, again, I don’t think that it’s a viable argument and clearly that didn’t roll the day, but perhaps that was the driving force behind this advice, this position of advice. I don’t know.
Raj Sharma: I don’t think so. I think that on a deep level, Member Ferrari truly disagreed with it. He said it, it came out right within the first 10 minutes of this proceeding. He didn’t like it and he wanted to depart from it and he tried to square that circle and I don’t think there was any strategy involved in that whatsoever. He simply found that difficult to swallow.
Deanna Okun-Nac…: You guys, I have to raise this other thing just because this has been one of those things that I’ve always returned to throughout my career, is the jurisprudence around the giving of care. And there is a long history of jurisprudence on this subject, and I find this is a very interesting addition to that goof, and we can call it that. But going back to decisions like where they’re talking… Most of them are directed around the living caregiver program, but talking about a purpose of approach to regarding people that have come into Canada to provide care at their own personal sacrifice. This is not something that you are just creating. There’s actual jurisprudential background, and even though it’s gone from some of these decisions were made under the foreign domestic movement program, some under the LPP, but it’s sort of this idea that it’s not just about this moral-
Raj Sharma: Well, I mean it starts from, you look at Kanthasamy, you look at the preceding, it’s about what is compassion. It’s this sort of fellow feeling. It’s like this desire to relieve the suffering or misfortune of another in the sort of civilized community, shall we say. You look at Justice Harrington quoting Titus Andronicus, can you hear a good man groan and not relent and not compassion him? Well, so where does that come from? All right, well, if you are contributing in a very, very unique circumstances, risking your own life for other members of this society, that pretty clear cut.
I mean, again, it’s a relatively narrow issue. Again, there’s no truck drivers that are risking their lives. There’s no oil and gas workers risking their lives necessarily. I mean, so anyway, a very interesting experience. I don’t know. On the third… We have these two decisions. Now, Justice O’Reilly didn’t bite on Bhimani. There’s the Bhimani case that Justice Ahmed sort of noted in passing and obviously he said it’s not binding on me or the IAD, which is correct, but you have Bhimani with far less indicia of the Ribic and Chieu factors that got relief with 50 days and Ms. Mohamed has struck out twice now. So let’s see, third time’s the charm.
Deanna Okun-Nac…: Yeah, and I forgot there’s no certified question in this decision. Is there?
Raj Sharma: There’s no certified question, something that’s so fact driven. What you have, I mean it’s obvious, right? It’s obvious that the IAD has to have due regard for a Federal Court direction on this matter. It’s obvious that… And again, this tortured analysis, which is like, again, if everyone is special, no one is. And again, Member Ferrari says he gave sort of a weight to this, but obviously there’s four paragraphs of his meandering, tortured analysis that shows how he undermined it. By going down, constructing these sort of various strawmen of other occupations of which no evidence was led before him.
Steven Meurrens: I went back and read Justice Ahmed’s paragraph, it’s pretty clear at 43, “The moral debt owed immigrants who worked on the front lines to help protect vulnerable people in Canada during the first waves of the COVID-19 pandemic cannot be overstated. I do not find that the IAD gave this contribution, the weight it deserved.” So yeah, I don’t see how it’s over there. I mean, it is a clear statement that the specific contributions of frontline workers needs to be given significant weight. It’s also like several other Federal Court decisions have cited it for the same proposition.
Raj Sharma: And to be clear-
Deanna Okun-Nac…: [inaudible 00:39:17]
Raj Sharma: Sorry, Deanna. To be clear, I’m not suggesting that you just say this and you’re good to go. There was specific evidence before the IAD as to the impact of similarly situated individuals as Bhaona Mohamed, combined with her own evidence and of course her own history. So it’s not a blanket statement, there was evidence there specific to her and giving rise to direct evidence and inferential evidence. Go ahead. Sorry.
Deanna Okun-Nac…: I was just going to say that it’s still… I fully appreciate everything you’re saying, but when you look at it from a strictly academic kind of a perspective, the idea that the Federal Court is commenting about the weight to be given certain types of evidence is a little unusual. No?
Raj Sharma: It’s not evidence. Shall we say that it is a factor, so let’s put it in a Ribic and Chieu type of factor. There’s evidence that goes to a factor for analysis and what you have is the IAD in the first instance, let’s say disregard… Not quite disregarding it, but not giving it the due that it was warranted. And then in the second decision, you literally have an IAD board Member thumbing his nose at the Federal Court and say, watch this. Watch me do this.
Deanna Okun-Nac…: A hundred percent, I agree with you. I mean one of the thoughts that has been going through my head a whole bunch lately is that dealing with the Federal Court over and over, I’m frustrated in a way that I’ve never been frustrated before by the limits of their jurisdiction. And when you’re getting into these types of conversations about what is the appropriate weight to be given and all of this sort of thing. To me, if they had or they were exercising some kind of power to actually direct verdicts, and I know that this is something that I keep raising in every podcast, but the idea that their only real remedy is to send it back for redetermination by the original tribunal does kind of mean that there is, in my view, strictly legally speaking, a kind of muddling of that. Because I feel that there… Anyways, I mean putting it really bluntly, I just wish the powers of the court were more expansive that they could actually redetermine the issue rather than going through this exercise of sending it back. I’m just tired of having to argue things three and four times.
Raj Sharma: Look, there’s a lot of things that are written down like our constitution or charter or things of that nature. Ultimately it comes down to respect, and that respect is this: that the court is going to respect the decisions of inferior administrative decision makers that have been tasked by the legislation to deal with issues or applications that the courts are not suited for. So that’s deference. We’re going to defer to them. Now, at the same time, those decision makers must show respect and deference to the Federal Court. And so the system will work fine as long, as everyone knows what their role is in this judicial pecking order or this ladder that we have.
If we had a properly constructed or deferential or respectful IAD decision of Ms. Mohamed, we would not have the O’Reilly decision. That is basically saying, what is this? It would help if decision makers don’t view themselves as some sort of… And I felt this from Member Ferrari, is that he felt that Justice Ahmed was encroaching on his jurisdiction. And that’s probably where it kind of got off the rails.
Steven Meurrens: Yeah, I mean, I’m going speak to what you just said, but then going to Deanna’s point after. Member Ferrari didn’t seem to take it as what he did wasn’t so much disagreeing with the re-weighting approach that Justice Ahmed articulated, but rather disagreeing with the principle itself about how the people who serve on the frontline that, there’s a certain debt owed to them that should be given particular weight. I do agree with Deanna that is it that common for judges to pronounce on the weight to be given a topic, maybe not outside of the best interest of the child? I mean in HNC decisions, there are cases where there may be one factor that a judge clings to as being so overwhelming that it wasn’t given enough consideration, which even though Justice Ahmed used the term contribution, the weight it deserved. That’s sort of how I read it. The contributions of frontline workers is something so unique that there has to be attention paid to it. Which is how it’s been read and all these other decisions that I just pulled up.
Raj Sharma: It’s clear that Member Ferrari had issues with the reasoning he had issues and he’s like, no, this is unworkable. This is subjective and unworkable and therefore I’m not going to apply it or I’m going to give paid lip service to it. That’s the issue here.
Deanna Okun-Nac…: Yeah, I mean I think that because of the way that our conversation is evolving, it sounds like this is a thing about the specifics of Member Ferrari exclusively, but I think I’m speaking to a more widespread issue in terms of going back to Visa office for another differently articulated refusal, maybe on totally novel ground, maybe on the same one, more craftily worded through AI. It’s all of that sort of thing. And I feel that that is the frustration that I’m feeling, because while I understand the pecking order and that it should all work the way that it should work, that right now this is an access to justice issue. And I know I’m railing on this in every podcast, but these are being funded now by people who are in the process, and so.
Raj Sharma: We have to distinguish judicial view of decisions made outside of Canada by TRV holders with judicial review of refugees and permanent residents inside of Canada with… And again, remember we give deference to the RPD, RAD, IAD, because presumably they have expertise, presumably.
Deanna Okun-Nac…: Well, we give deference to the visa office decision makers.
Raj Sharma: Well, that’s a whole different issue. And judicial review is really not suitable at… Mandamus on a study permit application or outstanding application, show the prejudice. Come on, come on. I mean that is counsel going down that pathway using the hammer of the Federal Court for a TRV, not understanding the limitations of judicial review in that context is one thing. If we’re talking about here, we’re giving deference to the IAD because they have expertise, well, that expertise should obviously mean legal expertise and understanding of their role in this common law, in this rule of legal ecosystem that we have or legal system that we have. So that is one, it was quite alarming by Member Ferrari for his disregard, and frankly let’s say disrespect to a Federal Court analysis or decision. And again, surprising that the Department of Justice backed it to the hilt.
Steven Meurrens: I think what you’re getting at Deanna is, and it’s an issue that you face in litigation, which part of the issue with judicial review is so many of them settle that you don’t get those judicial pronouncements like what Raj got here about the debt owed to frontline workers. When something settles, there isn’t really any pronouncement as to how the next officer should rule it.
Raj Sharma: I’ll agree with Deanna. The more years I spend doing it, the more it is frustrating and it’s very difficult to explain to your clients. And the variance in the process and then the unsatisfactory outcome, which is we’re just going to send it back for redetermination-
Deanna Okun-Nac…: See if we can burn down your funds or your patients or your sanity through repeated litigation. It’s not a thing.
Steven Meurrens: That again, is where, and I mean, I know Raj, you’re short on time. The importance of this case is that it is a bit of a line in the sand case as to what’s permissible on redetermination.
Deanna Okun-Nac…: Yeah.
Raj Sharma: I’m hopeful. I’m hopeful now. Third time’s the charm, and thank you for having me on. I’ve now discussed this.
Steven Meurrens: Well, I remember the first time we were like, you know what, this case could be huge in setting this precedent that there’s a duty owe to frontline workers. And I looked up, as you were speaking all the times, it’s been cited and except for one IAD case that we’ve discussed today. That is how it’s been interpreted. And now the second judicial review of that IAD case, now we’ll stand for the proposition. Again, it’s harder to search, but the tribunal makers do have to respect what the Federal Court says.
Deanna Okun-Nac…: I can’t believe that this won’t just settle at the IAD. Honestly, that you’re going to go through another hearing just seems to me like, whoa.
Raj Sharma: Well, we now have two sets of transcripts, so we have two-
Deanna Okun-Nac…: Honestly, what further evidence?
Raj Sharma: Yeah, I’m wondering whether I should just do a stat deck for my… But again now I’ve got PTSD.
Deanna Okun-Nac…: Yeah, I get it.
Raj Sharma: Once bitten, twice shy.
Deanna Okun-Nac…: Twice bitten.
Raj Sharma: Normally I would just be, normally I’d put in the two transcripts and put in the two judgments and put in my two memos, and I’d be like, you know what, here’s a stat dec as to her current circumstances, and I think we’re good to go. But I don’t think I can leave any stone unturned on this case. And so I guess I’m going to run another half day hearing and call testimony from my client.
Deanna Okun-Nac…: Was there any discussion about cost, by the way, in the second hearing?
Raj Sharma: Costs also. That’s another podcast, I think. So I’ve gotten costs where I didn’t expect to get costs and then I didn’t get costs or expected to get costs, so I really don’t go down that pathway. Certainly the IAD decision, I didn’t see any avenue for costs there, but costs is a whole different sort of thing. And it’s something that I might look into for, let’s say a citizenship mandamus, where there’s been undue delay and that’s impacted a family being together or a delay in granting citizenship, for example. I’ve done that. This one, I didn’t quite see it. I was very annoyed by the Ferrari decision, but I didn’t see a basis for cost.
Deanna Okun-Nac…: Interesting. Yeah, it’s definitely, it’s a very interesting subject and not one that had… When you think about conversation about costs at Federal Court three years ago versus conversations. There’s a fruitful conversation to be had now about costs where it was a dead issue three years ago to me, I mean virtually and so not dead, but I mean it had to be a very freaking unique set of facts, and now I feel like there’s much more receptivity. What I would really love to see is some receptivity to the concept of more active intervention, more active direction to the tribunal. And again, I’ve put this to various justices and they’re kind of like, “What do you mean exactly council?” But I am frustrated by putting upon the applicant or whether they’re the applicant or the appellant, if they’re going back to another tribunal hearing, something like that. But just that they are having to continue going through the gears of this clumsy legal determination system and getting this kind of decision.
Steven Meurrens: Well, I know Raj, you’re out of time. Hopefully when we have you on next, it will be about a different case. We will be on round three of-
Deanna Okun-Nac…: Or there’s a decision you can celebrate with us. That’s the big hope.
Raj Sharma: Yeah. From your lips to God’s ears. I too hope for that outcome for this very deserving client of mine. She’s been extraordinarily patient and resilient in her trying to navigate the labyrinth of immigration laws of the United States and of Canada. So I really, really hope the best for her because she really, really deserves a fair hearing, a fair shake.
Deanna Okun-Nac…: I hope she has a good sense of humor, because I think that that would be quite important in these circumstances.
Raj Sharma: Actually, she’s quite remarkable. I’m sure she takes things quite well, although I can imagine the difficulty of this. But some clients don’t understand the sort of, why are we doing this or how is this possible?
Deanna Okun-Nac…: For sure.
Raj Sharma: And she’s a very intelligent lady and so she understands that we’ve done our best on this one. And oddly enough, we are winning. It’s two steps forward, one step back.
Deanna Okun-Nac…: Oh my God.
Raj Sharma: All right, thank you so much Deanna. Wonderful to see you again, Steven. Great to see you again. Two days in a row. It’s my lucky week.
Steven Meurrens: Yeah.
Raj Sharma: Bye. Take care.
Steven Meurrens: Yeah. Take care.
Raj Sharma: Take care my friends.
Steven Meurrens: Okay. Bye.