Docket: IMM-5108-14
Citation:
2015 FC 991
Ottawa, Ontario, August 20, 2015
PRESENT: The
Honourable Mr. Justice Annis
|
BETWEEN:
|
|
XOLISILE
PRUDENCE SONTA MKHONTA
|
|
VUYILE
NOKUKHANYA MOTSA
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
PUBLIC SAFETY AND
|
|
EMERGENCY
PREPAREDNESS
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA or the Act] of a decision by a Refugee Protection Division
[the Board] that the Applicant is not a Convention refugee nor a person in need
of protection in the meaning of sections 96 and 97(1) of the Act.
[2]
For the reasons that follow, the application is dismissed.
II.
Background
[3]
Ms. Xolisile Prudence Sonta Mkhonta [Prudence or
the adult Applicant] and her daughter, Ms. Vuyile Nokukhanya Motsa [Vuyile or
the minor Applicant] are citizens of Swaziland. They came to Canada in January
2012 and sought refugee protection. After arriving, they were required to
undergo medical examinations and it was discovered that Prudence was HIV
positive.
[4]
Their refugee claim was dismissed by the Refugee
Protection Division [RPD] in November 2013 and leave for judicial review of the
RPD decision was denied by the court on March 27, 2014.
[5]
On April 30, 2014, the Applicants attended a
pre-removal interview with the Canada Border Services Agency [CBSA] and were
advised that they were going to be removed from Canada. They requested a
deferral of removal to allow Vuyile to complete the school year, which was
granted on May 14, 2014.
[6]
On June 13, 2014, the Applicants were served
with a Direction to Report for removal on July 3, 2014. On June 16, 2014, the Applicants
submitted an application for permanent residence on humanitarian and
compassionate grounds [H&C].
[7]
On June 25, 2014, the Applicants sought a
deferral of removal from CBSA requesting that the decision be provided by June
27, 2014 in order to avoid having to seek a stay. The Applicants’ counsel
alleged the following:
•
Prudence requires regular and reliable ongoing
treatment for HIV;
•
Prudence would face a health risk due to the
inability of Swaziland to provide adequate medical care for women with HIV,
including insufficient and unreliable access to proper medication;
•
The Applicants would both face difficulties as
women in Swaziland;
•
The Applicants have demonstrated their
establishment in Canada;
•
The Applicants would have no family support in
Swaziland;
•
Prudence will suffer from stigma and
discrimination due to her HIV-positive status, including problems finding
employment; and
•
Swaziland is currently experiencing food
shortages, water shortages and severe economic downturn, which puts Vuyile at
risk of malnutrition and health problems, which will exacerbate Prudence’s
health problems, and will make it difficult for them to find work.
[8]
In support of these allegations, the Applicants
provided the Officer with various documents including country condition
evidence, letters of support, letters from Prudence’s treating physicians, and a
psychological assessment of Prudence by her psychotherapist.
[9]
Applicants’ counsel also noted that the H&C
application had not been submitted prior to June 2014 because of the original
counsel was not aware of the exemption from the 12-month statutory bar on
account of medical circumstances.
III.
Impugned Decision
[10]
The Officer denied the Applicants’ deferral
request on June 27, 2014. The Officer stated that it was beyond her
jurisdiction to do a full H&C assessment, but that the H&C factors that
had been brought forward in the deferral request would be considered.
[11]
The Officer acknowledged that the Applicants
have made efforts to establish and integrate themselves. The Officer went on to
state that he had considered the hardship factors and the country conditions in
Swaziland, but that a lot of the documents were not personalized, so these
factors alone do not confer status in Canada.
[12]
With respect to the best interests of the child
Vuyile, the Officer noted that she is now 18 years old and considered an adult.
The Officer rejected the submission that Vuyile would be at risk of
malnutrition and health problems, finding that the documentary evidence were
not personalized and that counsel’s statements were speculative. The Officer
concluded that Prudence would be traveling with her mother who will be able to
attenuate the period of adjustment for Vuyile and that their extended family
living in Swaziland would be able to help with the period of adjustment.
[13]
Regarding Prudence’s medical situation,
the Officer noted that he had considered the documents regarding the medical
situation in Swaziland and the letters submitted by the Applicants. However,
the Officer noted that he had done some “simple
Internet research of the topic” on the medical
situation for HIV and cited from the website of a non-governmental organization
and the UNAIDS.org report on country progress reports 2014 for Swaziland. Based
on that information, he concluded that:
I note that while health care situation and
economic situation in Swaziland is not perfect, and there are improvements to
be made, the government took serious steps to improve the conditions in the
country and the King, the Prime Minister and senior government officials were
praised in the 2012 report.
[…]
Based on the above, there is insufficient
information before me to suggest that Ms. Xolisle Prudence MKHONTA would be
unable to receive the treatment she needs upon her return to Swaziland. I have
considered the deferral request in its entirety and I need to reiterate that
the deferral process is intended to address temporary practical impediments to
removal and is not meant to be a long term reprieve.
[14]
The Officer concluded that there was no evidence
that the Applicants would suffer undeserved or disproportionate hardship if
they were returned to their country and that there was insufficient objective
evidence to warrant a deferral of removal for the Applicants.
[15]
The Applicants filed an application for leave
and for judicial review of the Officer’s decision on June 16, 2014 and
subsequently sought a judicial stay of removal. On July 2, 2014, Justice Shore
of this court granted a stay of removal pending the determination of this
proceeding.
IV.
Issues
[16]
The following issues arise in this application:
1.
Did the Officer breach procedural fairness by
relying on extrinsic evidence?
2.
Did the Officer err by carrying out an assessment
of the hardship factors?
3. Did the Officer err in his assessment of the evidence?
V.
Standard of Review
[17]
Issues of procedural fairness and natural
justice are to be reviewed on the correctness standard (Mission Institute v
Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at para 79, [2014] 1 S.C.R. 502; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
para 43, [2009] 1 S.C.R. 339). However, I note that in Forest Ethics Advocacy
Association v National Energy Board, 2014 FCA 245, 246 ACWS (3d) 191 [Forest
Ethics], the Federal Court of Appeal held that while the procedural
fairness issue is to be determined on the correctness standard, the Court must
give some deference to the Board’s procedural choices (see also: Re: Sound v
Fitness Industry Council of Canada, 2014 FCA 48 at paras 34-42, 455 NR 87
and Maritime Broadcasting System Ltd. v Canadian Media Guild, 2014 FCA
59 at paras 50-56, 373 DLR (4th) 167)).
[18]
Conversely, the decision of an Officer to defer
removal is subject to the reasonableness standard of review unless it involves
a question of law (Canada (Public Safety and Emergency Preparedness) v
Shpati, 2011 FCA 286 at para 27, 343 DLR (4th) 128, Baron v Canada
(Public Safety and Emergency Preparedness), 2009 FCA 81 at para 25, [2010]
2 FCR 311).
VI.
Analysis
A.
Did the Officer breach procedural fairness by
relying on extrinsic evidence?
[19]
The Court raised the issue with the parties
whether the Officer breached procedural fairness by relying upon extrinsic
evidence obtained from her Internet search without providing the Applicants an
opportunity to respond to it. Its concern arose out of the Court’s
consideration of the decisions of Level v Canada (Public Safety and
Emergency Preparedness), 2008 FC 227, 324 FTR 71 [Level] as also applied
in Williams v Canada (Public Safety and Emergency Preparedness), 2010 FC
274, [2011] 3 FCR 198 [Williams]. These decisions stand for the
proposition that, “if the Officer relies on extrinsic
evidence not brought forward by the applicant, the applicant must be given an
opportunity to respond to that evidence. That is the minimal duty of procedural
fairness” [Level].
[20]
Ultimately, whether such evidence may be relied
upon depends upon its categorization as “extrinsic”.
In this regard, I conclude that Justice de Montigny best summarized the
jurisprudence on the determination of what constitutes extrinsic evidence in De
Vazquez v. Canada (Citizenship and Immigration), 2014 FC 530 as that which depends
upon whether the information would be known by the Applicant in light of the
nature of the submissions made by the parties. He makes this point at paragraphs
27 and 28 of the decision as follows:
[27] I agree with the Applicants’
assertion that not everything found online can be considered as publicly
available. If it were otherwise, as I stated in Sinnasamy v Canada (Minister
of Citizenship and Immigration), 2008 FC 67 (CanLII) (at para 39), it
“would impose an insurmountable burden on the applicant as virtually everything
is nowadays accessible on line”. An officer should therefore be prudent when
considering and relying upon “materials that could not be described as the kind
of standard documents that applicants can reasonably expect officers to
consult” (Mazrekaj v Canada (Minister of Citizenship and Immigration),
2012 FC 953 (CanLII) at para 12). In fact, as stated by the Federal Court of
Appeal in Mancia v Canada (Minister of Citizenship and Immigration),
1998 CanLII 9066 (FCA), [1998] 3 FC 461 [Mancia] at para 22:[W]here the immigration
officer intends to rely on evidence which is not normally found, or was not
available at the time the applicant filed his submissions, in documentation
centres, fairness dictates that the applicant be informed of any novel and
significant information which evidences a change in the general country
conditions that may affect the disposition of the case.See also: N.O.R. v
Canada (Minister of Citizenship and Immigration), 2011 FC 1240 (CanLII) at
para 28; Arteaga v Canada (Minister of Citizenship and Immigration),
2013 FC 778 (CanLII) at para 24; Begum v Canada (Minister of Citizenship and
Immigration), 2013 FC 824 (CanLII) at para 36
[28] That being said, it is not the
document itself which dictates whether it is “extrinsic” evidence which must be
disclosed to an applicant in advance, but whether the information itself
contained in that document is information that would be known by an applicant,
in light of the nature of the submissions made: Jiminez v Canada (Minister
of Citizenship and Immigration), 2010 FC 1078 (CanLII) at para 19; Stephenson
v Canada (Minister of Citizenship and Immigration), 2011 FC 932 (CanLII) at
paras 38-39. In the case at bar, while the particular websites consulted by
the Officer might be considered somewhat unorthodox and are clearly not
standard sources, they contained general information on the Argentinean school
system which would have been reasonably accessible by the Applicants. They
provide general information on the Argentinean school system that could have
been found elsewhere by the Applicants, and that information can clearly not be
characterized as “novel and significant information which evidences a change in
the general country conditions that may affect the disposition of the case”, as
stated by the Federal Court of Appeal in Mancia.
[Emphasis added]
[21]
I agree with the Respondent that publicly
available articles from the Internet sites of UNHIV.org and AVERT.org would not
be considered extrinsic evidence in the terms described above, given the nature
of the submissions in this matter that directly relate to issues of access to
services to treat HIV in Swaziland. These are not submissions that would take
the Applicants by surprise. They are simply further country condition documents
that provide balance to the submissions of the Applicants regarding the
availability of treatment services for HIV patients in Swaziland.
[22]
The Respondent raises a secondary issue with
respect to the rigorous time constraints that deferral Officers are subject to,
impliedly suggesting that this should be taken into consideration in respect of
the procedural fairness owed the Applicants. I would agree that the
circumstances could affect the Officer’s reliance upon extrinsic evidence if
the situation of urgency was raised or contributed to by the Applicants. This I
find to be the case in this matter, inasmuch as the adult Applicant played a
significant role in creating the situation where the Officer was subject to
time pressures that provided little time to communicate the information
obtained from his Internet search.
[23]
First, there was the Applicant’s unacceptable
delay in failing to file a more timely H&C application, allegedly due to
the original counsel’s misunderstanding that the Applicants were not bound by
the one year bar, which is not an excuse that can be relied upon. Second, the Applicants
should have submitted their deferral request before letting nearly two weeks go
by after receiving notices of their removal date. Third, the Applicants’ requested
that a decision be rendered within three days of submitting the deferral
request to avoid having to undertake stay proceedings in the Federal Court, if
successful. The Officer abided by the request.
[24]
Accordingly, I find no breach of procedural
fairness by the Officer's reliance upon the information obtained from his
Internet searches.
B.
Did the Officer err by carrying out an
assessment of the hardship factors?
[25]
The Removals Officer makes a finding that there
was no evidence to show that the Applicants would suffer undeserved or
disproportionate hardship if returned to Swaziland. The Applicants submit that
this finding was not his to make in a request to defer removal. They argue that
the evidence before the Officer warranted a decision to defer the Applicants’
removal so that a full consideration could be made by an immigration Officer
responsible for making decisions on H&C applications before the Applicants
are removed from Canada.
[26]
An Enforcement Officer has neither the duty, nor
the discretion to consider various H&C factors in determining whether to defer
removal. This Court has made it clear on numerous
occasions that an Enforcement Officer is not an H&C Officer. In Munar v Canada (Minister of Citizenship and Immigration),
2005 FC 1180, at para 36 [Munar], the Court stated that the
Enforcement Officer does not have the jurisdiction, the necessary training or
the duty to conduct an H&C assessment. The Officer recognized the limitation in his
jurisdiction. By addressing some of the hardship factors, she did not commit a
reviewable error, inasmuch as the Applicants’ submissions as they related to
the effects of removal were taken into consideration in the decision.
C.
Did the Officer err in his assessment of the evidence?
[27]
The Applicants submit that the Officer erred in
making her determination by ignoring relevant evidence and failing to provide
adequate reasons. I cannot agree with this submission. In the first place many
of the Applicants’ submissions relate to hardship factors on a long-term basis
such as the issues of discrimination or stigma, which are not relevant to a deferral request in respect of the
issues in this matter which pertain primarily to access to treatment facilities
for AIDS upon return to Swaziland.
[28]
The Officer considered the principal Applicant’s
positive HIV diagnosis. She considered the country conditions documents
concerning, HCV facilities and the evidence concerning the availability of antiretroviral
drugs in Swaziland. It is not the Court’s task of re-weighing the evidence. The
reasons demonstrate that the issue was considered and there is some evidence to
support a decision within a reasonably acceptable range of outcomes. The
Officer makes reference to the country condition evidence, admittedly said to
be exemplified by that found in her own search, to conclude that there was insufficient
evidence that the principal Applicant would be unable to receive the treatment
she needs upon her return to Swaziland.
[29]
The Court does not find that the Applicants’ subsequent
comments on the articles found in the Internet search are sufficient grounds to
conclude the likelihood that the Officer would have come to a different
conclusion had she received them prior to rendering her decision. The
Applicants pointed out in their supplementary materials that the laudatory
comments contained in the NGO article reported at AVERT.org in 2012 of the
King, Prime Minister and senior government officials for “having good political
presence against HIV and AIDS”, in addition to new legislation suggesting a
renewed commitment to the HIV response, was contradicted somewhat by an article
in their materials concerning the insufficient budget allocations for 2012-2013.
However, the more pertinent recent 2014 article from the reputable UNAIDS.org
concerning improved patient retention rates on antiretroviral therapy as
indicative of the improved quality of services that arose from the changes made
to the national treatment guidelines in 2010 is not refuted or commented on. I
would not consider reliance on recent relevant evidence on country conditions
constituting over-reliance on extrinsic evidence as argued by the Applicants. The
Officer acknowledges the difficult situation in Swaziland and there is no doubt
that better care would be available in Canada, but this is not a ground for
deferral.
[30]
The Officer considered the best interests of the
child. This analysis should be less thorough than the full-fledged
analysis required in the context of an H&C application and should be
focused on the short-term best interests of the
child, see Khamis v. Canada (Citizenship and Immigration), 2010
FC 437 applying Munar. The
Officer was sensitive to the child’s circumstances, which were considered. The
child was 18 years old living with her mother, who as noted, is educated with
an excellent work record in Swaziland. I did not see any reviewable issue concerning
the child’s situation giving rise to a ground for deferral in this matter given
the deference owed the Officer and her review of the evidence on this issue.
VII.
Conclusion
[31]
The application is dismissed. No questions were
suggested for certification and none will be certified.
Email this Content