The Moral Debt Owed to Front Line Health Care Workers -Part Deux
What do you do when your immigration appeal is refused?
The IAD is probably your best shot at retaining status. The IAD remains an important safeguard and safety net for Permanent Residents that are facing a removal order. The IAD can consider both validity and humanitarian and compassionate considerations (the “Ribic and Chieu” factors that all immigration lawyers should be familiar with).
If the IAD refuses relief, then the decision can be challenged at the Federal Court. If successful, the matter is sent back for re-determination by a different IAD Member.
This may lead to a different, positive result. It may lead to another refusal usually on different grounds than the first decision.
The Federal Court cannot dictate the outcome of the redetermination. But many times it’s clear what the Court is thinking.
In one recent case, I challenged a decision of the IAD refusing H&C relief to a front line health care worker. The Federal Court was quite clear as to the significance of that work in the context of the pandemic:
[40] At a time when most people in Canada were staying at home to avoid the spread of COVID-19, frontline workers were risking their own health to provide essential services. This includes those who worked tirelessly in long-term care homes that saw frequent COVID-19 outbreaks and many deaths. The evidence before the IAD in this appeal included evidence demonstrating the heavy toll COVID-19 has taken on female immigrants working in health care.
[41] An employment letter on the record states that the Applicant has been employed at the Bethany Care Society since December 7, 2020 and is currently working as a Health Care Aide at Bethany Airdrie, a long-term care facility in Airdrie, Alberta. The letter states that the Applicant “[…] maintains casual employment at Bethany with the ability to pick up additional shifts.” As counsel for the Applicant aptly pointed out during the hearing, there was nothing casual about working at a long-term care facility during those times. This same facility was hit with a COVID-19 outbreak in early January 2021. Evidence before the IAD shows that on January 4, 2021, Bethany Airdrie reported 40 cases at the facility, including 19 employees and 21 residents, and the deaths of two residents from COVID-19. The entire facility remained under lockdown during this time.
[42] As a health care aide, the Applicant risked her own health and safety to support health-compromised and aging individuals. She is applying the very skills she acquired in Canada over a decade ago at a time when they are 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.
[43] The moral debt owed to immigrants who worked on the frontlines to help protect vulnerable people in Canada during the first waves of the COVID-19 pandemic cannot be understated. I do not find that the IAD gave this contribution the weight it deserved.
I discussed this case with my friends Steven Meurrens and Deana Okun-Nachoff on their podcast:
Raj Sharma: Fast forward, get the decision, sent it into the IAD post hearing. It was accepted, obviously was referenced in submission. So I believe Bhaona Muhammad is going to assist other cases. It’s not going to be a lot, but it will come in handy.
Deana Okun-Nach…: No, I wouldn’t underestimate it, Raj. I think that this is a really epic decision in so many ways. And first of all, just the way that you just articulated what you did in that, was so brilliant. I think it even elevated the decision itself, which was pretty spectacular. But for me, and you’re going to need to cut me off after a few minutes, but I just wanted to say that my takeaways from both the decision and from also what you said right now is that we are working in truly Shakespearean times.
The matter was sent back for redetermination but somehow, that crystal clear articulation didn’t make sense to the IAD member who refused the appeal for the second time:
[33] Appellant’s Counsel made persuasive arguments about the nature of the Appellant’s work in the long-term care facility. He provided evidence of immigration programs which seek to provide status to refugees who worked at the front-line during the pandemic.[12] He submitted that the Appellant’s work is evidence of her establishment in Canada. Further, referencing the Federal Court decision relating to the original IAD hearing on this matter, he submitted that the Appellant is owed a moral debt due to her front-line work during the pandemic.
[34] I agree with many aspects of Appellant’s Counsel’s submissions. The Appellant’s efforts and professionalism in the context of the pandemic are outstanding. She has positively contributed to the well-being of Canadian society, and was instrumental in helping many vulnerable Canadians. In this regard, I find that the Appellant’s work shows favourable establishment and I have given it considerable weight in finding that the Appellant’s overall establishment is a positive factor when considering special relief.
[35] I also agree that society owes a moral debt to all front-line 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.
[36] 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.
[37] 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.
[38] However, I find 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 be easily 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.
It was disappointing to lose (again). That being said, it’s not over yet. We are now back at the Federal Court; the DoJ is contesting the JR and I guess we will see what the Court decides.