Docket: IMM-4595-11
Citation: 2012 FC 330
Ottawa, Ontario, March 20,
2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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[AB]; [CD]; [EF]; [GH]
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
AB,
his wife, CD, their 17-year-old daughter, EF, and their 12-year-old son, GH, are
citizens of Burundi. Both
parents are HIV positive. So is GH.
[2]
The
family arrived in Canada in 2006 and sought refugee protection. Their
claim was denied. They then applied for relief on humanitarian and
compassionate grounds (H&C), but an immigration officer turned them down.
[3]
The
applicants argue that the officer erred by failing to consider the best interests
of the children, the risk of discrimination on their return to Burundi because
of their HIV status, and the difficulty they will have in obtaining the
medication they need in Burundi. They ask me to overturn the decision and order
another officer to reconsider their application.
[4]
I
am satisfied that the officer erred in relation to the best interests of the
children and that the decision should be overturned on that basis. It is
unnecessary to consider the other grounds.
II. The Officer’s Decision
[5]
The
officer noted that the applicants claimed they would face undeserved, undue and
disproportionate hardship if forced to return to Burundi, because of
the lack of basic medical care for persons living with HIV. The documents
submitted by the applicants indicated that 13 years of ethnic warfare had
ravaged the country’s health system.
[6]
However,
documentary evidence also showed that the fight against HIV/AIDS is a national
priority in Burundi. Burundi has been working
hard to ensure universal access to HIV/AIDS prevention services, care and
support. Furthermore, it has trained hundreds of doctors, nurses and “health
mediators” on the prescription of antiretroviral drugs. The officer found that
treatment for people with HIV/AIDS was available in Burundi, and that the
applicants would have access to it.
[7]
In
terms of their establishment in Canada, AB and his wife had
been working for a school board as substitute teachers and lunchtime
supervisors since 2008. However, they relied on social assistance.
[8]
The
officer acknowledged that the children excelled in school in Canada. He also
noted that AB was enrolled in university and taking English classes, and that
he was an active member of his church. CD was also taking training courses and
volunteered in the community. Still, the officer did not consider their degree
of establishment to be exceptional.
[9]
The
applicants do not have any family in Canada. However, they have a
number of relatives in Burundi. AB and his wife are
both university graduates who held good jobs in Burundi. The officer
found they would be capable of finding work in Burundi with the
help of their relatives.
[10]
The
officer concluded that the applicants would not suffer undue, undeserved or
disproportionate hardship if they returned to Burundi and filed
their applications for permanent residence from there. Consequently, he denied
their H&C application.
III. Did the officer consider the
best interests of the children?
[11]
The
applicants submitted to the officer that their children would be stigmatized
and discriminated against in Burundi, particularly in
school. Their submissions were supported by objective documentary evidence.
[12]
However,
the officer’s only mention of the children was in relation to their academic
success in Canada. In my view,
the officer was not alert, alive or sensitive to the best interests of the
children in his analysis of the impact on the family of their removal to Burundi. He did not
address the impact that removal from Canada would have on the
children or consider the evidence that was relevant to that issue. This failure
requires me to allow this application for judicial review.
IV. Conclusion and Disposition
[13]
The
officer’s failure to consider the best interests of the children requires me to
overturn his decision, and order another officer to reconsider the applicants’
H&C application. In the circumstances, no question of general importance
arises.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application for judicial review is allowed;
2.
The
matter is referred back to another officer for reconsideration;
3.
No
questions of general importance are stated;
4.
On
request of the applicants and the consent of the respondent, the style of cause
is amended as to protect the identity of the applicants, to read AB, CD, EF
& GH.
“James
W. O’Reilly”
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