Date: 20250304
Docket: IMM-14298-23
Citation: 2025 FC 401
Toronto, Ontario, March 4, 2025
PRESENT: The Honourable Mr. Justice A. Grant
BETWEEN: |
NICHOLAS NNADOZIE, NKWANYANA NELLY NNADOZIE NELLY CHIOMA NNADOZIE CHIKA NICOLE NNADOZIE DOMINICK IKECHUKWU NNADOZIE |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] The Applicants seek judicial review of a decision of a Senior Immigration Officer, who denied their application for permanent residence on humanitarian and compassionate grounds [H&C].
[2] For the reasons that follow, I will grant this application for judicial review.
II. BACKGROUND
A. Facts
[3] The Applicants are citizens of South Africa. The Principal Applicant – Nicholas Nnadozie – is also a citizen of Nigeria. The Associate Applicant is his spouse, Nkwanyana Nnadozie. The couple have four children; three who were born in South Africa, and one who was born in Canada. The South African-born children are Minor Applicants in this matter.
[4] In 2018, the Applicants left South Africa. Mr. Nnadozie travelled to Israel, where he was granted temporary protection. Meanwhile, Ms. Nnadozie and the children travelled to the United States, and entered Canada via a land border. Mr. Nnadozie then returned briefly to South Africa, before also arriving in Canada via the US. The Applicants reunited and made a claim for refugee protection. Their claims were based on various grounds: 1) Mr. Nnadozie’s refusal to become the next chief priest of his village shrine in Nigeria; 2) the disapproval of Ms. Nnadozie’s family to their marriage; and 3) adverse country conditions.
[5] The Refugee Protection Division [RPD] and the Refugee Appeal Division [RAD] refused the Applicants’ claims for protection. The Applicants then sought leave and judicial review of the RAD decision, which was refused. As a result, the Applicants were notified of, and submitted, applications for a Pre-Removal Risk Assessment [PRRA]. The PRRAs were rejected in December 2022.
[6] As mentioned above, the Applicants then submitted an H&C application. Their application was based on their establishment in Canada; the best interests of their children; and the hardship they would experience if required to leave Canada. Related to their establishment in Canada, the Applicants provided extensive submissions on their work as Personal Support Workers [PSWs] during the COVID-19 pandemic.
B. Decision under Review
[7] In refusing their application, the Officer concluded that “sufficient humanitarian and compassionate considerations do not exist to justify an exemption under Section 25(1) of the
Immigration and Refugee Protection Act [IRPA].”
[8] On the question of the Applicants’ establishment in Canada, the Officer assigned some weight to the adult Applicants’ financial establishment and self-sufficiency, including their employment as PSWs during the COVID-19 pandemic. The Officer also assigned some weight to the adult Applicants’ personal establishment in their communities, and to the hardship they would face if they were returned to South Africa.
[9] The Officer also acknowledged that the adult Applicants may face some difficulties re-establishing themselves in South Africa, but found that such difficulties did not rise to the level of hardship warranting humanitarian and compassionate relief. This was particularly the case because the Applicants are already familiar with the context in South Africa, and have relocated and re-established themselves in unfamiliar countries in the past.
[10] The Officer found that the risk factors identified by the Applicants were the same as those considered and rejected by the RPD and RAD (and this Court), and further observed that the alleged hardships were general, speculative, and unsupported by the evidence.
[11] The Officer gave considerable weight to the RPD and the RAD’s assessment of the Applicants’ risk from their families and found that they had not demonstrated any new risk developments on any of the alleged grounds. As there was insufficient corroborative evidence to overcome the RPD and the RAD’s findings, the Officer assigned little weight to the Applicants’ hardship allegations.
[12] Finally, the Officer indicated that they had assigned significant weight to the best interests of the children [BIOC]. Ultimately, however, the Officer found that there was insufficient evidence demonstrating a negative impact on the children should they be returned to South Africa with their parents. In coming to this conclusion, the Officer found that the alleged hardships to the children (inadequate education, the risk of female genital mutilation, and discrimination against the Canadian-born child) were also general, speculative, and unsupported by evidence.
[13] While acknowledging that the children would likely endure some emotional difficulties in adjusting to life in South Africa, the Officer found that they would continue to be able to access adequate education; and would be loved, cared for and supported by both parents. The Officer noted that the adult Applicants had received adequate education in both Nigeria and South Africa, and there was no reason to expect that the children would not be able to access similar opportunities. The Officer also noted, as with the adult Applicants, that the children in question had already relocated to unfamiliar contexts previously, and would therefore have the same “tenacity, resourcefulness, and adaptability”
to re-establish themselves in a new location.
III. ISSUES
[14] The only issue raised in this matter is whether the Officer’s decision was reasonable.
IV. LEGAL FRAMEWORK
[15] Subsection 25(1) of the IRPA governs applications based on humanitarian and compassionate grounds. The relevant aspects of the provision are as follows:
25 (1) […] the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is […] or who does not meet the requirements of this Act[…] examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
[16] In Kanthasamy v Canada (Minister of Citizenship and Immigration), 2015 SCC 61 [Kanthasamy], the Supreme Court of Canada described s.25 of the IRPA as “a flexible and responsive exception to the ordinary operation of the
Act…a discretion to mitigate the rigidity of the law in an appropriate case.”
The Court further stated that the H&C exception was not intended to be an alternative immigration scheme, but was rather meant to “offer equitable relief in circumstances that ‘would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another’”
: Kanthasamy at para 21, citing Chirwa v Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338, at p. 350.
[17] In Mitchell v Canada (Citizenship and Immigration), 2019 FC 190 (at para 24) the Honourable Madam Justice Walker (then of this Court) distilled the assessment of H&C relief into a simple question: “Were the applicant’s circumstances, when considered with humanity and compassion, sufficient to warrant extraordinary relief?”
[18] As can be seen from the above, a consideration of the interests of children affected by H&C decisions is central to the analysis under s.25. As the Supreme Court noted in Kanthasamy, where “the legislation specifically directs that the best interests of a child who is ‘directly affected’ be considered, those interests are a singularly significant focus and perspective”
: para 40, citing A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at paras 80-81 [A.C.].
V. STANDARD OF REVIEW
[19] The parties do not dispute that the appropriate standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 16, 23, 25 [Vavilov]; Kanthasamy at paras 44-45.
VI. ANALYSIS
A. Establishment and Pandemic Contributions
[20] In support of their application, the Applicants highlighted various details, all of which were corroborated by support letters and other evidence. These details included the following:
Mr. Nnadozie is employed with Bayshore Home Care Solutions as a PSW and worked in that position through a significant period of the COVID-19 pandemic.
Ms. Nnadozie is employed with Good Shepherd Centres Seniors Programs and has served in multiple roles with the organization, including as a PSW during the pandemic. According to the organization, losing Ms. Nnadozie’s employment “would be a great loss to our community, organization, programs and the vulnerable population we serve.”
Beginning in 2018, Mr. Nnadozie volunteered for Dixon Hall Neighbourhood Services, delivering lunches to “housebound seniors”
in the community.
Ms. Nnadozie has obtained various diplomas and certificates related to healthcare and education.
The family have regularly attended a church congregation in Hamilton, Ontario.
[21] The Officer did not ignore these facts, but addressed them as follows:
Nonetheless, I accept that the Applicants are both employed and are most likely financially self-sufficient while in Canada as there is little evidence to indicate that they have used in the past or are currently in use of social assistance. I acknowledge that they have made some meaningful friendships in the country and attend a congregation. I commend the PA for the volunteer work he has done in his community and his spouse for taking numerous courses in order to enhance her education and employability skills. I also commend them both on their employment as personal support workers in the health care sector; particularly during the COVID-19 global pandemic. I find these all to be positive factors in this decision to which I give some weight to for consideration.
[22] This Court has now been confronted with several applications for judicial review of H&C decisions involving individuals who provided services during the COVID-19 pandemic: Henry-Okoisama v Canada (Citizenship and Immigration), 2024 FC 1160 [Henry-Okoisama]; Mohammed v Canada (Citizenship and Immigration), 2022 FC 1 [Mohammed]; Azike v Canada (Citizenship and Immigration), 2024 FC 1291 [Azike]; Cadougan v Canada (Citizenship and Immigration), 2023 FC 501 [Cadougan]; Chinwuba v Canada (Citizenship and Immigration), 2023 FC 679 [Chinwuba]; Uwaifo v Canada (Citizenship and Immigration), 2022 FC 679; Yusuf v Canada (Citizenship and Immigration), 2024 FC 1180 [Yusuf]; Taqi v Canada (Citizenship and Immigration), 2023 FC 1607 [Taqi]; Singh v Canada (Citizenship and Immigration), 2024 FC 1947 [Singh]; Olvera Quijano v Canada (Citizenship and Immigration), 2024 FC 551 [Olvera Quijano].
[23] In addition to the above, I also note two decisions in which the Immigration Appeal Division of the Immigration and Refugee Board has also considered pandemic-related work in assessing H&C factors: Nagarajah v Canada (Public Safety and Emergency Preparedness), 2024 CanLII 138083 and Cabigas v Canada (Citizenship and Immigration), 2024 CanLII 33147.
[24] On the one hand are cases such as Henry-Okoisama, Mohammed, Azike, Cadougan, Uwaifo, and Chinwuba, in which this Court found that Officers failed to meaningfully grapple with the applicants’ contributions, sacrifices, and risks over the course of this singularly challenging moment in Canadian history.
[25] On the other hand, are cases such as: Yusuf, Taqi, Singh, and Olvera Quijano, in which the Court upheld negative H&C decisions, notwithstanding the contributions of the applicants during the pandemic.
[26] While H&C decisions are highly fact-specific, and while the reasons in support of each H&C decision is reviewed on its own merits, I find the situation in this case is more like the first set of cases than the second. I arrive at this conclusion for the following reasons. First, several cases in the second group involved individuals who did not work, or remain working, in the healthcare sector, but in other areas that were more removed from the core risks associated with the pandemic. Singh, for example, involved an applicant who was a long-haul truck driver during the pandemic. Olvera Quijano involved an individual who worked in food preparation. Yusuf involved an individual who, unlike the Applicants in this case, appeared to have “transitioned into different work altogether.”
[27] As in Mohammed, I find that in this case, the Officer simply failed to justify – beyond a “passing note”
– the determination that the Applicants’ contributions during the pandemic warranted only some mildly positive weight.
[28] Second, unlike Yusuf and Taqi, and contrary to the submissions of Respondent’s counsel, the Applicants in this case had squarely emphasized the importance of their PSW-related contributions in support of their H&C application. Indeed, counsel for the Applicants devoted an entire section of his submissions to the particular contributions that the Applicants had made during the pandemic.
[29] An important part of these submissions related to the fact that, during the pandemic, the Immigration Minister established a Public Policy under s.25.2 of the IRPA, which created a pathway to permanent residency for individuals who were, in all important respects, just like the Applicants; that is, for individuals who had made asylum claims, who were authorized to work in Canada, and who had provided healthcare services during the pandemic. While not made explicit in the Record, it would appear that the reason the Applicants did not qualify under the policy related solely to the timing of their asylum claims. In any event, the clear implication of counsel’s submissions was that, because the Applicants’ circumstances were substantially identical to those who could obtain status under the policy, their H&C applications should be considered similarly.
[30] Despite these submissions, the Officer made no mention of the Public Policy and provided no explanation as to why that broad expression of Canadian policy bore no relevance to the Applicants’ situation. To be clear, I am not suggesting that the Officer was obliged to grant the Applicants’ H&C application because of the Policy. What I am suggesting, however, is that, because of their contributions during the pandemic, and given the submissions that had been provided, the Officer was obliged to provide some explanation as to why the logic underlying the Policy should not have also applied to the Applicants. Absent this explanation, I find the Officer’s decision lacks adequate justification, and that judicial intervention is warranted. I would finally note on this point that immigration officers’ failures to reference the Public Policy were key factors in this Court’s granting of the applications in both Uwaifo (see para 32) and Chinwuba (see para 36).
B. Best Interests of the Child
[31] While the above findings are determinative of this application for judicial review, I will also briefly comment on two aspects of the Officer’s BIOC analysis, which I found problematic.
[32] My first comment relates to the Officer’s suggestion that, because the adult Applicants managed to attend school in Nigeria and South Africa, the Minor Applicants would also have their educational needs met. In assessing the children’s best interests through the prism of their parents’ experience, the Officer failed to assess the children’s prospects on their own terms. Indeed, as children of parents from two different countries, who face removal to one or the other of those countries, the reality of these bi-national children is, at least in this sense, appreciably different from that of their parents. As Justice Fuhrer recently stated in Yusuf (at para 19):
[T]hat the adult Applicants received their education in Nigeria without any identified obstacles, in no way is indicative, in my view, of the obstacles the children may face with their education, upon returning to Nigeria many years after the adult Applicants were educated there. In other words, the H&C officer’s focus strays from the children to the parents and seeks to draw conclusions about what the children would face in moving to Nigeria based on the absence of evidence about whether the parents encountered any obstacles with their education. This too is unreasonable speculation...
[33] My second comment relates to the Officer’s statement that the Minor Applicants will essentially be fine because they exhibit the same “tenacity, resourcefulness and adaptability”
as their parents. This Court has previously criticized the “life can be hard but children are resilient”
approach to assessing a child’s best interests. As Justice Norris noted in Reducto v Canada (Citizenship and Immigration), 2020 FC 511 at para 53, this approach is “the antithesis of the compassion that is meant to be shown under section 25(1) of the
IRPA.”
The focus of a BIOC analysis is, at root, straightforward – officers are to assess the best interests of children affected by the decision at hand. Where officers go beyond this task and speculate, within the body of the BIOC assessment, as to the ability of children to cope with a situation that is not in their best interests, the analysis is distorted and the result will frequently be an unreasonable decision. Such is the case here.
CONCLUSION
[34] For the above reasons, this application for judicial review is granted. The parties did not propose a question for certification, and I agree that none arises.
JUDGMENT in IMM-14298-23
THIS COURT’S JUDGMENT is that:
The application for judicial review is granted.
The matter is remitted to a different decision-maker for reconsideration.
No question is certified for appeal.
"Angus G. Grant"
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