Docket: IMM-3182-14
Citation: 2015 FC 595
Ottawa, Ontario, May 6, 2015
PRESENT: The
Honourable Mr. Justice S. Noël
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BETWEEN:
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ELIZABETH
BEAUTY OGUNYINKA
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application by Elizabeth Beauty
Ogunyinka [the Applicant] for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision of
Citizenship and Immigration Officer [H&C officer], dated April 7, 2014,
denying the Applicant’s request for permanent residency based on humanitarian
and compassionate considerations [H&C application] under subsection 25(1)
of IRPA.
II.
Alleged Facts
[2]
The Applicant is a Nigerian woman born on November
12, 1964.
[3]
The Applicant came to Canada with her husband on
a visitor’s visa on November 29, 2011.
[4]
Shortly after her arrival in Canada, she and her
husband were diagnosed as being HIV positive.
[5]
The Applicant’s husband passed away on August 8,
2013.
[6]
The Applicant’s three children are all in Canada
on student visas.
[7]
The Applicant submitted an H&C application
dated December 20, 2013. This application was denied on April 7, 2014. This is
the decision under review.
III.
Impugned Decision
[8]
The H&C officer first summarized the
Applicant’s counsel’s submissions before assessing the letters provided in
support the Applicant’s H&C application. With regards to all the letters
presented, the H&C officer commented that none of the authors offered
expert opinions about the country conditions in Nigeria and that the Applicant
had not presented any evidence that she would be denied any required medical
treatment in Nigeria.
[9]
The H&C then assessed the documentation
pertaining to the country conditions in Nigeria with regards to discrimination
and stigmatization of people living with HIV, current health policy in Nigeria and
other international reports on medicals services and treatment available in
Nigeria for people living with HIV/AIDS. The H&C officer determined that
the Applicant had not presented any objective evidence neither of
unavailability of treatment or medication for her health condition in Nigeria
nor that she would be discriminated against in Nigeria. The H&C officer
also noted that the documentary evidence showed that the state of Lagos, where
the Applicant previously lived, has anti-discrimination laws. The H&C
officer further specified that health care facilities and treatment are
available for the Applicant in Nigeria.
[10]
With regards to the Applicant’s argument that she
would face backlash from her husband’s family, the H&C officer concluded
that she did not provide objective evidence that she is at risk from her
in-laws or by anyone else in Nigeria.
[11]
As for the Applicant’s time spent in Canada, the
H&C officer does not grant it significant weight because the Applicant did
not demonstrate a reasonable expectation that she would be allowed to stay in
Canada. Moreover, the Applicant entered Canada on a visitor’s visa and should
have expected the likelihood of having to return to Nigeria. The H&C
officer also noted that her three children are all in Canada on student visas
and are expected to leave at the expiration of their visas.
[12]
For these reasons, the H&C officer concluded
that the Applicant’s H&C application is not justified.
IV.
Parties’ Submissions
[13]
The Applicant submits that the H&C officer
breached her right to procedural fairness by relying on undisclosed extrinsic
evidence to which she had no opportunity to respond. The Applicant specifically
refers to the document referenced to as “Motherland
Nigeria: Healthcare” in the decision, which refers to the health policy
in Nigeria. The Applicant further argues that the H&C officer placed more
weight on this evidence than over the current available expert information from
Steve Aborisade.
[14]
The Respondent replies that there was no breach
of procedural fairness because documents do not need to be disclosed to the
Applicant if they are in the public domain, general in their nature and
neutral. The Respondent adds that the Applicant only needs to be informed of
novel and significant information which may affect the disposition of the case.
[15]
The Applicant submits that the H&C officer
made findings of fact without due regard to the evidence, with respect to being
threatened or subjected to abuse in Nigeria by her in-laws, not having the
assistance of her family members in Nigeria, not being able to be an active
member of her church, remaining in Canada due to circumstances beyond her
control, the unavailability of treatment in Nigeria and discrimination and
stigmatization of people living with HIV in Nigeria.
[16]
The Respondent responds however that the
Applicant simply disagrees with the weight the H&C officer afforded to the
evidence and the ultimate result of the decision, which is insufficient to
overturn the H&C decision. The Respondent is of the opinion that the
H&C officer adequately weighted all of the evidence presented.
V.
Issues
[17]
I have reviewed the parties’ submissions and
respective records and frame the issues as follow:
1.
Did the H&C officer breach procedural
fairness by relying on an undisclosed document to which the Applicant had no
opportunity to respond?
- Is the H&C
decision reasonable?
VI.
Standard of Review
[18]
The question as to whether the H&C officer
breached procedural fairness by relying on an undisclosed document to which the
Applicant had no opportunity to respond raises the standard of review of
correctness (Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43; Nadesan v Canada (Minister of Citizenship and
Immigration), 2011 FC 1325 at para 8). As such, the Court will show no
deference “to the decision maker’s reasoning process;
it will rather undertake its own analysis of the question” (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 at para 50 [Dunsmuir]).
[19]
The question as to whether the H&C officer’s
decision is reasonable attracts the standard of review of reasonableness. “Considerable deference should be given to immigration
officers exercising the powers conferred by legislation, given the fact specific
nature of the inquiry, its role [subsection 25(1) of the IRPA] within the
statutory scheme as an exception, the fact that the decision maker is the
Minister, and the considerable discretion evidenced by the statutory language”
(Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817, [1999] SCJ No 39 at para 62; see also Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189 at para 18; Kanthasamy v
Canada (Minister of Citizenship and Immigration), 2014 FCA 113 at paras
82-84 [Kanthasamy] and Lemus v Canada (Minister of Citizenship and Immigration),
2014 FCA 114 at para 18).
VII.
Analysis
A.
Did the H&C officer breach procedural
fairness by relying on an undisclosed document to which the Applicant had no
opportunity to respond?
[20]
According to the principles established by the
Federal Court of Appeal in Mancia v Canada (Minister of Citizenship and
Immigration), [1998] 3 FC 461, 161 DLR (4th) 488 at
para 22 (CA), the leading case on this question, a decision-maker is not
required to give an opportunity to comment evidence from a public source which
is available:
1. Fairness does not require the disclosure of documents from public
sources in relation to general country conditions if they were available and
accessible in documentation centres at the time submissions were made by an
applicant;
- As to documents
from public sources in relation to general country conditions which were
available and accessible after the applicant had filed his submissions,
fairness requires disclosure where they are novel and significant and
where the evidence changes in the general country conditions that may
affect the decision (see also Dereva c Canada
(Ministre de la Citoyenneté et Immigration),
2015 CF 417 at para 12 and (Hoyte v Canada (Minister of Citizenship and
Immigration), 2015 FC 175 at para 15 [Hoyte]).
[21]
The only document at issue here is the one the H&C
officer referred to as “Motherland Nigeria: Healthcare”
in her decision.
[22]
The Respondent argues that the information
contained in the document in question is in the public domain since the
Applicant found the information on the internet following the H&C decision.
This argument is inaccurate. As the affidavit of Mrs. Dianne Aimee Molina
Verano demonstrates (Applicant’s Record [AR], Volume II, pages 380-383), after multiple
different attempts to find the said document as referenced by the H&C
officer, it could not be found. Ms. Molina eventually retraced the information cited
by the H&C officer in her decision by typing the words as cited by the
H&C officer in Google. Only then did she find the information on two different
blogs. The document itself, as cited and presented by the H&C officer,
could not be found. There is also no such document in the Certified Tribunal
Record [CTR]. Both parties however discussed at the hearing how a document contained
in the CTR, titled Federal Republic of Nigeria, Revised Health Policy,
Federal Ministry of Health, Abuja [Revised Health Policy] (CTR pages
19 to 27), which contains similar information, sometimes almost verbatim, as
the one presented by the H&C officer, referenced as “Motherland Nigeria: Healthcare”. There is however no
mention of “Motherland Nigeria: Healthcare” in
the Revised Health Policy. In addition, the footnote used by the H&C
officer to reference the document only states “Motherland
Nigeria: Healthcare”. Therefore, contrary to what the Respondent said, “Motherland Nigeria: Healthcare” cannot be qualified
as being in the public domain. The document was neither available nor
accessible to the Applicant. The requirements of Mancia, above, have
therefore not been met.
[23]
The H&C officer also spent almost a complete
page of her decision citing information from the inaccessible document. This
emphasis on the information contained in the document indicates that it was
important for the purposes of her decision. Furthermore, the H&C officer
presented the information contained in the document as the “Current Health Policy in Nigeria”. However, the
document contained in the CTR, Revised Health Policy, which contains
similar information, is dated September 2004. The current health policy in
Nigeria, the H&C officer is referring to, might therefore not be so
current. Since the H&C officer relied on the document in her decision,
without providing the proper reference for the Applicant to find it and without
giving her a chance to respond to it, it was impossible for her to properly
assess the information it contained and make submissions as to its content. The
document in question should have been disclosed to the Applicant. The H&C
officer thus breached procedural fairness by relying on an unavailable and
inaccessible document to which the Applicant had no opportunity to respond. The
intervention of this Court is warranted. That said, I will make a few comments
below as to the reasonableness of the decision as well.
B.
Is the H&C decision reasonable?
[24]
The test to be applied in a H&C application
is if at the time the H&C application is made, the Applicant’s personal
circumstances are such that the hardship of having to apply for a permanent
resident visa from outside Canada in the normal manner would cause unusual and
underserved or disproportionate hardship. The onus is on the Applicant to meet
that test (Owusu v Canada (Minister of Citizenship and Immigration),
2004 FCA 38 at para 8; Kanthasamy, above at para 48). The starting point
of the Court's analysis is the reasoning of the H&C officer, where the
issue is whether the decision, “considered as a whole,
can sustain a somewhat probing examination by the Court” (Frank v
Canada (Minister of Citizenship and Immigration), 2010 FC 270 at para 17).
As long as the H&C officer considers the relevant, appropriate factors from
the H&C perspective, the Court should not interfere with the weight the
H&C officer gives to those different factors, even if the Court would have
weighed the factors differently (Ambassa v Canada (Minister of Citizenship
and Immigration), 2012 FC 158 at para 48 [Ambassa]).
(1)
Discrimination in Nigeria
[25]
The Applicant argues that the H&C officer did
not properly assess the evidence with regards to her claim of potentially being
threatened or subjected to abuse and that she would be a victim of
discrimination and stigmatization as a person living with HIV in Nigeria. The
Applicant states that her affidavit explains how she would suffer hardship in
Nigeria and would not be safe. She relies on Maldonado v Canada (Minister of
Employment and Immigration), [1980] 2 FC 302, to support her argument that
once an applicant swears under oath that the allegations are true, a
presumption that those allegations are true is created.
[26]
In the case at bar, the H&C officer
concluded that the Applicant had not presented sufficient objective evidence
that she would be discriminated against in Nigeria. This conclusion is
unreasonable. There is ample documentary evidence in the CTR that corroborates
the Applicant’s statements from her affidavit. First, her HIV status is not
disputed, as can be seen from the Ottawa Hospital letter contained in the CTR
(CTR pages 160-161). Second, the UK Border Agency, Nigeria, Country of
origin information (COI) Report [UK Report], dated 14 June 2013,
specifically mentions that there is “widespread
societal discrimination against persons living with HIV/AIDS” (CTR page
53 at point 26.15). Although the H&C officer referred to this document in
her decision, she only cited a section of the document which is only concerned
with the availability of medical treatment and drugs in general, and not the
specific portions of the document which speak directly to the situation of
people living with HIV/AIDS. Third, the CTR also contained another document,
the Immigration and Refugee Board of Canada Response to Information Requests
[IRB Information Request], which specifically addresses the societal
treatment of individuals living with HIV (CTR page 69 and following). This
document specifically says:
[…] people living with HIV and their family
members experience stigma and discrimination on a daily basis as a result of
their HIV status, either by their immediate family members, friends, work place
colleagues, at the community level and or at the health centres by their care
givers. There are reported exclusion and discrimination at the community level
by mostly women living with HIV, students living with HIV and by workers at the
work place including the Nigerian Police Force (CTR page 70, point 3).
[27]
This speaks directly to the situation of the
Applicant. Fourth, the H&C officer completely ignored the Applicant’s
brother’s affidavit, which corroborates the Applicant’s statements and the
situation of individuals living with HIV in Nigeria. Finally, the H&C
officer also disregarded the letter by Steve Aborisade, who, by his
credentials, seems particularly knowledgeable of the situation of people living
with HIV in Nigeria (CTR pages 168-171). This letter was written specifically
to assess the Applicant’s situation. The H&C officer considered the letter
from M. Aborisade to be general in nature and not personal to the Applicant
(AR, H&C decision at page 10). However, after presenting the situation of
individuals living with HIV in Nigeria, M. Aborisade concluded as follow:
From my experience, I am certain that your
client faces a greater risk of being stigmatized for the twin reasons of
being HIV positive, and in this instance, a greater level of strong negative
reaction—the fact that they were returned from abroad is enough stigma in
itself in the context of the misconception that HIV is a white man’s disease.
From these realities, my informed opinion
will be to consider her special situation, and the good in prolonging her life
in the context of accessing better qualitative care and treatment and an
environment devoid of the needless rigour of HIV/AIDS discrimination (CTR page
171) (my emphasis).
[28]
It is hard to understand how such a document can
be qualified as general and not personal to the Applicant.
[29]
As for the discrimination the Applicant would
suffer from her own family and that of her late husband’s family, the H&C
officer unreasonably concluded that the Applicant had not provided evidence to
support her allegations that she is at risk from her in-laws, or would not have
the support of her mother and other family members in Nigeria (CTR, H&C
decision at page 9). This is again supported by the Applicant’s brother’s
affidavit and the documentary evidence, as can be seen from the IRB
Information Request cited above.
[30]
The H&C officer thus ignored evidence which
clearly contradicted her conclusion and selected general information to support
her erroneous conclusion (Cepeda-Gutierrez v Canada (Minister of Citizenship
and Immigration), [1998] FCJ No 1425, 157 FTR 35; Andrade v Canada
(Minister of Citizenship and Immigration), 2012 FC 1490). The H&C
officer had no evidence before to show that the Applicant’s statements in her
affidavit were untrue; it is rather quite the opposite. The H&C officer
also did not explain why the sworn affidavit was insufficient to establish the
lack of support in Nigeria (Westmore v Canada (Minister of Citizenship and
Immigration), 2012 FC 1023 at para 44). This renders the H&C decision unreasonable.
(2)
Availability of Treatment in Nigeria
[31]
The Applicant also argues that the H&C
officer erred in her assessment of the availability of treatment in Nigeria. I
agree. To that effect, at the judicial review hearing, the Applicant pointed to
the Global Report: UNAIDS report on the global AIDS epidemic 2013 (CTR
pages 179-213). This report list Nigeria as the nineteenth country where 90% of
the people live with an unmet need for antiretroviral treatment (CTR page 183).
It later states that “Nigeria has the second-largest
population of people living with HIV, with only one-third of treatment-eligible
individuals receiving HIV treatment […] (CTR page 212). The UK report, discussed
above, also explains that, in Nigeria, “a huge gap between persons accessing
anti-retroviral drugs and those requiring them […]” exists (CTR page 53 at
point 26.16). The H&C officer, in her decision, after analyzing the
availability of the general health services and of HIV treatment in health
facilities in Nigeria concluded that she was not satisfied that the Applicant “suffers
from any condition whose treatment would not be available in Nigeria”
(CTR, H&C decision page 8). Given the above information, the H&C
officer did not provide an analysis that adequately reflected the reality of
the availability of treatment for individuals living with HIV in Nigeria. This
warrants the intervention of this Court.
(3)
Remaining in Canada for circumstances beyond the
Applicant’s control
[32]
As for the Applicant’s establishment in Canada,
I again agree with her that she remained in Canada due to circumstances beyond
her control, due to her late husband’s health problems. As she states in her
affidavit, she never intended to remain in Canada, it is only due to the
unexpected health situation of her husband in November 2011 that the Applicant
remained in Canada for an extended period of time. This information is not
contested. Moreover, the Applicant visited Canada on a visitor’s visa on
numerous occasions over the last twelve (12) years, and always returned to
Nigeria when required. The H&C officer’s determination that there is
insufficient evidence that the Applicant remained in Canada due to
circumstances beyond her control is thus unreasonable.
VIII.
Conclusion
[33]
The H&C officer improperly relied on an
unavailable and inaccessible document: “Motherland
Nigeria: Healthcare”. In addition, the H&C officer did not give the
Applicant an opportunity to respond to this document. Furthermore, the reasons
the H&C officer provided to assess the Applicant’s H&C request were
unreasonable as the Applicant’s statements in her affidavit were supported by
the evidence. The H&C decision is thus unreasonable and does not fall
within the range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir, above at para 47). The
intervention of this Court is thus warranted.
[34]
Parties were asked to suggest a certified
question but declined.
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