October 9, 2018

Judicial Review of a Residency Obligation Appeal Before the Immigration Appeal Division Returned for Re-determination

In the recent decision of Osagie v. Canada (M.C.I.), 2018 FC 978, the Honourable Justice Ahmed presided over the Judicial Review of a residency obligation appeal before the Immigration Appeal Division.

Mr. Osagie, a citizen of Nigeria and a medical doctor, had become a permanent resident of Canada in August 2009, as did his wife and children. Unlike the rest of his family, Mr. Osagie did not become a citizen as he had returned to Nigeria to work as a doctor due to family obligation, specifically.

In May 2015, Mr. Osagie applied to renew Permanent Resident (“PR”) Card from within Canada. In August 2015, he received a letter from Citizenship and Immigration Canada (“CIC”, now called Immigration, Refugees and Citizenship Canada or “IRCC”) stating that, although he did not meet his residency obligation, he had sufficient humanitarian and compassionate (“H&C”) factors to allow him to retain his permanent resident status. However, Mr. Osagie’s previous PR Card had already expired and so, the following day, he called IRCC to make an urgent request to have his renewed PR Card issued to him as he had to travel to Nigeria. His urgent request was refused, but he was advised he could apply for a PR Travel Document while in Nigeria in order to return to Canada. Mr. Osagie travelled as planned and applied for the Travel Document from within Lagos, Nigeria as he was instructed, but his application for a Travel Document was refused as he did not meet his residency obligation.

Mr. Osagie appealed this residency obligation determination to the IAD and two issues were identified for resolution on appeal: first, whether the decision of the Visa Office in Lagos was legally valid; and, second, whether Mr. Osagie qualified for special relief under H&C grounds.

The IAD determined that Mr. Osagie failed on both grounds and dismissed the Appeal. In assessing the reasons for departure, among other findings, the IAD determined he could have secured a job in Canada but chose not to and that other members of Mr. Osagie’s family could have provided care to his aging parents in his place. The IAD also determined that it was likely Mr. Osagie would continue to work in Nigeria as a medical doctor even if the appeal was granted.

In a strongly worded decision, Justice Ahmed found the IAD’s H&C analysis to be unreasonably based on irrelevant factors, notably finding that the IAD is tasked with reviewing H&C factors and not with the likelihood of an appellant’s future compliance with the residency obligation. Considering the cultural realities of Mr. Osagie’s role as the eldest son and his occupation as a doctor, Justice Ahmed stated that the IAD “has no business” determining that Mr. Osagie had many siblings who could have provided care to his aging parents in his place. Justice Ahmed took issue with the IAD’s comment that “[i]mmigrating to a new country includes making difficult choices”, highlighting that:

” Immigration does involve difficult choices. This is why Parliament provided flexibility and relief from what would otherwise result in harsh consequences under a rigid application of the residency requirement. The decision-maker is owed deference in weighing the relevant factors. But the IAD’s casual statement that immigration entails difficult choices, along with the bald assertion of a plausible alternative course of action, is insufficient. ”

The decision was returned to the IAD for re-determination, indicating that the Court may not be willing to accept reliance upon the inherent “difficult choices” involved in immigrating to Canada, or the likelihood of future compliance in residency appeals, as a basis upon which to avoid affording an appellant the relief allowed under the IRPA.