Docket: IMM-8316-13
Citation:
2015 FC 308
Toronto, Ontario, March 11, 2015
PRESENT: The Honourable Madam Justice Simpson
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BETWEEN:
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PATIENCE THULIE MATSENJWA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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ORDER AND REASONS
(Delivered
Orally from the Bench in Toronto, Ontario on March 10, 2015)
[1]
Patience Thulie Matsenjwa (the Applicant) has
applied for judicial review of a Decision dated November 5, 2013 made by a
Senior Immigration Officer (the Officer) wherein she rejected the Applicant’s
application for permanent residence from within Canada on humanitarian and
compassionate grounds (the Decision). The application is brought pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c. 27.
[2]
The Applicant is a 26 year old citizen of Swaziland. She first arrived in Canada on November 28, 2009 at which time she made a claim
for refugee protection. In her claim, she alleged that she fears persecution at
the hands of her own family because she has refused to marry her aunt’s 47 year
old husband. The Applicant’s claim was heard by the Refugee Protection Division
on June 27, 2011. It rejected her claim on April 21, 2011 on the basis that she
was not a credible witness.
[3]
On April 6, 2012 the Applicant gave birth to a
son as an unwed mother. He is a Canadian citizen, he is now 3 years old and his
name is Brandon.
I.
The Issues
[4]
There are two issues:
1.
Was the Officer’s decision about hardship
reasonable?
2.
Was the Officer’s decision about Brandon’s best interests reasonable?
II.
Issue 1
[5]
In my view, in line with the Federal Court of
Appeal’s decision in Kanthasamy v. Canada (Citizenship and Immigration),
2014 FCA 113, the Officer reasonably interpreted section 25 of the IRPA as
requiring her to consider whether the hardship alleged by the Applicant had a
direct personal impact on her life. However, in deciding this issue the Officer
said the following:
I find that the documents are supportive of
the depiction of Swaziland as patriarchal society and as such are not
indicative of a direct personal impact on the applicant as a woman in Swaziland.
[6]
In my view this statement is unreasonable
because the Officer failed to consider how a single unwed mother who had only
the support of female relatives would fare in a patriarchal society.
[7]
The Officer also said:
Women refusing to follow custom may be
treated as outcasts by family members; however, the information before me does
not support that the applicant would not have avenues of redress and recourse
available to her in Swaziland if required. The applicant has also not
established that it constitutes a hardship for her to access the avenues
available to her in Swaziland.
[8]
This statement is unreasonable because there is
no suggestion that there was any information before the Officer about the
existence of any avenues of redress or recourse in the event of a forced
marriage. Nevertheless, it seems that the Officer felt that the Applicant
should have known that there were such avenues and that she could access them.
[9]
Further, the Officer makes no mention of
statistics showing that two third of the population lives on less than a dollar
a day and that the unemployment rate is 30% in a society that discriminates
against women. In my view, these facts required attention. I also note that the
Officer did not seem to appreciate that the Applicant’s degree of establishment
had included finding a job as a hotel housekeeper which permitted her to
support her son. The fact that she would lose that position as a supporting
parent and face economic and social uncertainty in Swaziland is a hardship
that, in my view, should have been considered.
III.
Issue 2 – Best Interests of the Child
[10]
The Officer’s analysis is unreasonable because
it is inadequate. It relies heavily on the passage of recent legislation in Swaziland about child welfare with no indication of how the legislation links to the
Applicant’s situation. The analysis is also inadequate because there is no
discussion of how the mother’s ability or inability to support her child
impacts his best interests. Given that the child is a toddler his best
interests are inextricably intertwined with his mother’s social and economic
well-being. In this regard the Officer did not consider all the relevant
factors which include the high unemployment, the low standard of living,
discrimination against women, the high likelihood of sexual violence, the high
likelihood of contracting aids, and her status as a single unwed mother with no
male protection.
[11]
For all these reasons, the application will be
allowed and the H&C application will be sent back for reconsideration by a
different officer.
[12]
No question was posed for certification for
appeal.
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