Date: 20120515
Docket: IMM-7883-11
Citation: 2012 FC 583
Ottawa, Ontario, May 15,
2012
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
KAM FAH NG
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) and paragraph 72(2)(b) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of
a decision of a senior immigration officer (the officer), dated October 6,
2011, wherein the applicant’s permanent residence application was refused (the decision).
This decision was based on the officer’s finding that there were insufficient
humanitarian and compassionate (H&C) grounds to warrant an exemption from
the requirement to apply for permanent residence from abroad.
[2]
The applicant requests that the officer’s decision
be set aside and the application be referred back to Citizenship and
Immigration Canada (CIC) for redetermination by a different officer.
Background
[3]
The
applicant, Kam Fah Ng, is a citizen of Malaysia who currently lives in Canada. As a homosexual and
HIV positive man, the applicant submits that he belongs to a social group
targeted for persecution in Malaysia.
[4]
The
applicant grew up in Malaysia. In 1993, he visited Thailand with a group of
friends. The morning after an evening of celebration, the applicant awoke next
to a woman prostitute. He later discovered that his friends had hired her as a
birthday gift for him. This was his first sexual experience. He was traumatized
by this experience and started spending more time drinking at gay bars to
overcome the emotional pain.
[5]
In
1996, the applicant travelled to Singapore in search of a better job. One job that he
applied for required a medical examination, which included HIV testing. Through
this testing, he discovered that he was HIV positive. He attributed his illness
to the night he spent with the prostitute in 1993. Fearing deportation from
Singapore, the applicant returned to Malaysia and to his job there. However, as HIV testing
was becoming increasingly common at workplaces in Malaysia and in light of the
discrimination faced by HIV positive people there, the applicant quit his job
in June 1998.
[6]
In
December 1998, the applicant travelled to Canada to escape his fears of being targeted in Malaysia as an HIV positive
person. After his visitor’s status expired, the applicant remained in Canada in
fear of being questioned on his return to Malaysia. He was unaware of the possibility of making a
refugee claim based on his HIV status.
[7]
In
2007, the applicant became ill and was hospitalized. He was not able to work
and became homeless. He was referred to the Hamilton AIDS Network for services
and support. The support worker there encouraged him to seek legal advice about
his immigration status. Due to language barriers, the applicant was referred to
the Asian Community AIDS Services (ACAS). There, he was connected with an immigration
lawyer, who agreed to represent him in his refugee claim. He was later referred
to the HIV & AIDS Legal Clinic Ontario (HALCO) where his current counsel
assisted him with filing an H&C application on April 7, 2009. In his
initial contact with the immigration lawyer and his current counsel, the
applicant felt shame and therefore did not disclose his sexual orientation.
[8]
On
January 18, 2010, CIC requested that the applicant file any other evidence he
wished to have considered in his H&C application. Applicant’s counsel filed
written submissions and supporting evidence on February 15, 2010. However, as
the applicant was still struggling with his sexual orientation, no evidence was
filed on the issue of homophobia.
[9]
The
applicant’s refugee hearing was held on April 6, 2010. Immediately before the
hearing, the applicant disclosed his sexual orientation to his lawyer.
[10]
The
applicant’s H&C application was denied on September 1, 2010. He filed an
application for leave and judicial review of that decision. The respondent
consented to the application and agreed to redetermine the application.
[11]
In
May 2011, the applicant filed additional evidence to support the redetermination
of his H&C application. This included evidence of homophobia in Malaysia.
Officer’s Decision
[12]
The
officer issued the decision on October 6, 2011. The officer decided that an
H&C exemption was not warranted in the applicant’s case.
[13]
The
reasons for the officer’s decision are outlined in the H&C grounds reasons
for decision form. The officer first summarized the applicant’s background
including the events that led to his departure from Malaysia and that transpired
since his arrival in Canada.
[14]
The
officer then noted relevant facts pertaining to the applicant’s establishment
in Canada. The officer observed
that during most of the applicant’s stay in Canada (13 years), he had not held valid
immigration status. The officer also noted that the applicant did not work in
occupations where his skills were unique to Canada or that he had special
skills or training that would be lost, thereby causing him undue hardship if
returned to Malaysia.
[15]
The
officer observed that the applicant was aware of his HIV status when he arrived
in Canada. However, he did not
seek medical help until he became seriously ill in 2007. Although he had the
option of returning to Malaysia to obtain free HIV
medication, he did not do so. Thus, the officer concluded that the applicant’s
lengthy stay in Canada was not beyond his
control. In so doing, the officer also noted that there are many NGOs in Malaysia willing to provide
support to the applicant.
[16]
On
risk and adverse country conditions, the officer acknowledged the applicant’s
submissions that should he return to Malaysia, he would be unable to pay for
his medications, his personal medical information would be disclosed to
potential employers, family and others and he would be persecuted and possibly
incarcerated for his sexual orientation. Collectively, this would cause him
undue and undeserved hardship. The officer also acknowledged the letters from
Dr. Kamarulzaman of the Malaysian AIDS Council in Malaysia and from the Hamilton
Health Services that supported the applicant’s submissions.
[17]
The
officer then summarized the information in some of the documentary evidence on
HIV/AIDS in developing countries. The officer cited one article in which the
author explained that developing countries generally levy custom duties or
import tariffs on essential medicines and other pharmaceutical products.
However, the officer found that the 0% levy on antiretroviral treatment drugs
in Malaysia demonstrated that it
was serious in its battle to control HIV/AIDS.
[18]
The
officer also noted that another article indicated programs were in place to
reduce HIV transmission, provide therapy for drug users, offer free and
anonymous HIV testing and distribute condoms. However, stigma, discrimination
and punitive laws were barriers to the effective implementation of these
programs. The officer concluded that HIV/AIDS is prevalent in Malaysia and the country is
struggling to control the disease. Although challenges continue, the officer
found that Malaysia is taking action on
HIV/AIDS.
[19]
On
the issue of sexual orientation, the officer first cited documentary evidence
indicating that certain laws were sporadically enforced and religious and
cultural taboos were widespread. The officer then noted the applicant’s
submissions on his sexual orientation: he contracted HIV in a heterosexual act;
in his initial refugee claim, he said he was heterosexual; at the refugee
hearing, he said he was bisexual and had no intention of having a relationship
with anyone in the future; and in his H&C application, he said he was
homosexual and hoped to have a committed relationship with a man in the future.
Although the Refugee Board Division had concluded that the applicant was not
homosexual, the officer accepted that he is homosexual and HIV positive.
[20]
The
officer then acknowledged that stigma and discrimination exist for those who
have HIV/AIDS and who are homosexual. However, the officer found that this type
of prejudice also exists in Canada. Although the treatment of homosexual and HIV positive
persons is better in Canada than in Malaysia, the officer found that
it remains a worldwide problem. Therefore, although the applicant would likely
face challenges if returned to Malaysia, the officer concluded that his personal circumstances were
such that the hardship he would experience would not be unusual and undeserved
or disproportionate. The officer therefore refused the applicant’s permanent
residence application.
Issues
[21]
The
applicant submits the following point at issue:
Was the officer’s decision
unreasonable?
[22]
I
would phrase the issues as follows:
1. What is the appropriate
standard of review?
2. Did the officer err in
denying the applicant’s H&C application?
Applicant’s Written Submissions
[23]
The
applicant submits that the appropriate standard of review of the officer’s
decision is reasonableness. In this case, the officer’s decision was
unreasonable for two reasons:
1. In assessing hardship on
the basis of sexual orientation, the officer erred by ignoring almost all the
evidence on homophobia in Malaysia; and
2. In assessing hardship on
the basis of HIV status, the officer erred by preferring general evidence of Malaysia’s efforts to fight
HIV/AIDS over specific evidence on the applicant’s situation.
[24]
On
the first point, the applicant submits that although the officer accepted that
he is homosexual, the officer erred by finding that homophobia in Malaysia does not amount to
unusual and undeserved or disproportionate hardship. The officer did not
address documentary evidence from the University of Toronto that highlighted the
discrimination against homosexual people in Malaysia. As the human rights violations faced by lesbian,
gay, bisexual, transgender (LGBT) people in Malaysia was a central ground of the hardship
claimed by the applicant, the officer was required to explain why he did not
believe that these human rights violations did not rise to the level of unusual
and undeserved or disproportionate hardship.
[25]
The
applicant also notes the officer’s comparison of the situation in Malaysia with
that in Canada. However, the applicant
asks this Court to take judicial notice of the fact that police raids,
extortion and harassment of the LGBT community are a thing of the past in Canada and that Canadian media
is not subject to censorship of LGBT issues. Thus, the officer’s comparison
between the situation in Canada and that in Malaysia
suggests that the officer did not properly understand the oppression of LGBT
people in Malaysia.
[26]
On
the second point, the applicant submits that the officer erred by relying on
country evidence, without adequately taking into account his specific situation
as outlined in the letter from Dr. Kamarulzaman. This included the costs of his
medication, without which his illness would risk advancing to AIDS as well as
the applicant’s psychosocial issues, lack of formal education and lack of
family support. Rather than focusing on the applicant’s specific situation, the
officer focused almost entirely on the Malaysian government’s general attempts
to fight HIV. The officer erred by finding that the general efforts adopted by Malaysia were sufficient to
contradict Dr. Kamarulzaman’s opinion. Similarly, the officer ignored the
evidence that echoed Dr. Kamarulzaman’s concerns on the hardships in employment
and health care faced by HIV positive persons in Malaysia.
Respondent’s Written Submissions
[27]
The
respondent submits that the appropriate standard of review of the officer’s
H&C decision is reasonableness. Reasonableness is a deferential standard
that recognizes that certain questions coming before administrative tribunals
do not lend themselves to a specific, particular result. A decision is
reasonable where it falls within a range of possible, acceptable outcomes that
are defensible in respect of the facts and law. In H&C decisions, the
respondent submits that there is a highly discretionary element warranting
significant deference, thus the scope of reasonable outcomes is wider.
[28]
The
respondent submits that recent Supreme Court of Canada jurisprudence has
clarified that reasons do not have to be comprehensive or perfect and a
reviewing court should first seek to supplement a tribunal’s reasons before it
subverts them. In addition, adequacy of reasons is not an independent basis for
quashing a decision. Thus, a decision is reasonable if the reasons are
sufficiently clear on why the decision maker reached its conclusion and that
conclusion is within the range of acceptable outcomes.
[29]
The
respondent submits that the officer clearly took into account the applicant’s
submissions on the difficulties that the applicant would face on return to Malaysia as an HIV positive
homosexual man. On review of the record as a whole, the respondent submits that
the officer’s decision falls within a range of possible acceptable outcomes.
[30]
Issue
1
What is the appropriate standard
of review?
Where previous jurisprudence has
determined the standard of review applicable to a particular issue before the
court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at paragraph 57).
[31]
It
is well established that assessments of an officer’s
decision on H&C applications for permanent residence from within Canada is
reviewable on a standard of reasonableness (see Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, [2009] FCJ No 713 at paragraph
18; Adams v Canada (Minister of Citizenship and Immigration), 2009 FC
1193, [2009] FCJ No 1489 at paragraph 14; and De Leiva v Canada (Minister of
Citizenship and Immigration), 2010 FC 717, [2010] FCJ No 868 at paragraph
13).
[32]
In
reviewing the officer’s decision on the standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; and Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12, [2009] SCJ No 12 at paragraph 59). It is not up to a reviewing Court
to substitute its own view of a preferable outcome, nor is it the function of
the reviewing Court to reweigh the evidence (see Khosa above, at
paragraphs 59 and 61).
[33]
Issue
2
Did the officer err in denying
the applicant’s H&C application?
In this application, the applicant’s
submissions focus primarily on the officer’s treatment of the evidence on
homophobia in Malaysia and on its preference
of evidence on Malaysia’s efforts to combat
HIV/AIDS over evidence specifically addressing the applicant’s situation.
Conversely, in arguing that the officer’s decision was reasonable, the
respondent relies predominantly on the significant deference owed to H&C
decisions on judicial review and on recent pronouncements by the Supreme Court of
Canada on the adequacy of reasons.
[34]
In the
decision, the officer first addressed the applicant’s establishment in Canada. The officer noted that
as the applicant had knowledge of his HIV status when he arrived in Canada, he
had many options available to him, “including the option of returning to Malaysia and obtaining free of
charge HIV medication”. The letter from Dr. Kamarulzaman clearly states that highly
active anti retroviral treatment, a first-line treatment, is available free of
charge in Malaysia. However, the applicant
is currently on second-line treatment (Kivexa and Kaltra), which is not
available free of charge in Malaysia. Thus, the officer’s statement suggests that the applicant
would only have needed first-line treatment had he returned earlier to Malaysia. There was no evidence
in the record to support this finding; the sole evidence was that he needed
second-line treatment, which is only available for a fee in Malaysia. Thus, the officer
erred by discounting the hardship that the applicant would face if returned to Malaysia and required to pay for
his HIV medication.
[35]
Turning
to the risk that the applicant would face if returned to Malaysia, the officer
acknowledged that the country is struggling to control HIV/AIDS and existing
stigma, discrimination and punitive laws on homosexuality act as barriers to
the effective implementation of HIV programs. However, the officer then recited
the progression of the applicant’s submissions on his sexual orientation in his
immigration applications. Although the officer ultimately found that the
applicant was a homosexual, this review of his previous submissions appears to
have influenced the officer’s finding. Before finally denying the applicant’s
application, the officer also cited some evidence of stigma and discrimination
towards HIV in Canada. Recognizing that the
situation was a great deal better in Canada, the officer nonetheless found that this was a
worldwide problem and therefore the hardship that the applicant would
experience if returned to Malaysia would not be unusual and underserved or disproportionate.
[36]
This
assessment is problematic for several reasons. As mentioned by the applicant,
the officer relied predominantly on select evidence of country conditions
without considering in detail the specific situation of the applicant. This
included the submissions made by Dr. Kamarulzaman that highlighted the
challenges associated with paying for his medical treatment due to his lack of
formal education and marketable work experience as well as the psychological
issues associated with his lengthy time abroad, his lack of family support and
the stigma and discrimination of homosexual men in Malaysia.
[37]
It
is well recognized that in considering an application under subsection 25(1) of
the Act, officers must assess and weigh the relevant factors in the personal
circumstances of the particular applicant (see Legault v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] FCJ No 457 at paragraphs
11 and 15 to 17; Suresh v Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 3 at paragraph 34; and Castillo v Canada (Minister of
Citizenship and Immigration), 2009 FC 409, [2009] FCJ No 543 at paragraph
11). In this case, the officer clearly failed to do so, relying predominantly
on country evidence without adequately considering the applicant’s personal
circumstances as outlined in the evidence before it.
[38]
Finally,
I also find that the officer erred in comparing the situation in Malaysia to that in Canada. This comparison seemed
to focus on general societal stigma and discrimination. In so doing, the
officer failed to adequately take into account the evidence on the record of
state action against homosexuals in Malaysia, including the use of morality
laws, police raids and police harassment. This raises the level of hardship
that the applicant would face on return to a much higher level than that here
in Canada; arguably rendering the
situations in the two countries incomparable.
[39]
In
summary, it is well recognized that it is not this Court’s responsibility to
reweigh relevant factors and evidence that are duly considered by officers
making highly discretionary decisions. However, in this case, the officer came
to conclusions that were not supported by the evidence as a whole. The officer
failed to adequately consider the particular circumstances of the applicant.
The officer also came to conclusions on the availability of HIV medicine in
Malaysia and similarities in the stigma and discrimination faced by homosexual
and HIV positive people in Canada and Malaysia that were not supported
by the evidence before it. As such, the officer failed to properly evaluate the
hardship that the applicant would face in Malaysia as an HIV positive homosexual man. I would
therefore allow this application and refer the decision back for redetermination
by a differently constituted panel.
[40]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is allowed, the decision of the officer is set aside and the matter is
referred to a different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
|
11. (1) A
foreign national must, before entering Canada, apply to an officer for a visa or for
any other document required by the regulations. The visa or document may be
issued if, following an examination, the officer is satisfied that the foreign
national is not inadmissible and meets the requirements of this Act.
25. (1) The
Minister must, on request of a foreign national in Canada who is inadmissible
or who does not meet the requirements of this Act, and may, on request of a
foreign national outside Canada, 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.
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision, determination
or order made, a measure taken or a question raised — under this Act is
commenced by making an application for leave to the Court.
(2) The
following provisions govern an application under subsection (1):
. . .
(b) subject
to paragraph 169(f), notice of the application shall be served on the other
party and the application shall be filed in the Registry of the Federal Court
(“the Court”) within 15 days, in the case of a matter arising in Canada, or
within 60 days, in the case of a matter arising outside Canada, after the day
on which the applicant is notified of or otherwise becomes aware of the
matter;
|
11. (1) L’étranger
doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres
documents requis par règlement. L’agent peut les délivrer sur preuve, à la
suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se
conforme à la présente loi.
25. (1) Le
ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger; il peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
(2) Les
dispositions suivantes s’appliquent à la demande d’autorisation :
. .
.
b) elle
doit être signifiée à l’autre partie puis déposée au greffe de la Cour
fédérale — la Cour — dans les quinze ou soixante jours, selon que la mesure
attaquée a été rendue au Canada ou non, suivant, sous réserve de
l’alinéa 169f), la date où le demandeur en est avisé ou en a eu connaissance;
|
Email this Content