Docket: IMM-5785-14
Citation:
2015 FC 1070
Ottawa, Ontario, September 11, 2015
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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ANDRO ROCHA
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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.
Overview
[1]
Mr. Andro Rocha challenges a decision of a
senior immigration officer [the Officer] refusing his application for permanent
residence from within Canada on humanitarian and compassionate [H&C]
grounds. Mr. Rocha had claimed that his establishment in Canada and hardship
due to the lack of medical care in the Philippines for HIV-positive persons and
the associated discrimination directed at people living with HIV were factors
supporting his request for an H&C exemption pursuant to section 25 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
The Officer rejected his application as she
concluded that cumulatively, the elements presented by Mr. Rocha were
insufficient to establish that he would suffer unusual and undeserved or
disproportionate hardship if he had to apply for permanent residence from
outside of Canada.
[3]
Mr. Rocha contends that the Officer’s
conclusions on his degree of establishment in Canada and on the hardship due to
the lack of medical care and discrimination against HIV-positive persons in the
Philippines were unreasonable in light of the evidence on the record. He asks
this Court to quash the decision and order another immigration officer to
reconsider his application for permanent residence on H&C grounds.
[4]
For the reasons that follow, this application
for judicial review is dismissed. Having considered the decision, the evidence
before the Officer and the applicable law, I find no basis for overturning the
Officer’s decision. The decision thoroughly reviewed the evidence and the
Officer’s conclusions fall within the range of acceptable and possible outcomes
based on the facts and the law.
[5]
The issues to be determined in this application
for judicial review are as follows:
- Did the Officer err in considering the degree of establishment
of Mr. Rocha?
- Did the Officer fail to properly consider evidence
of hardship upon return relating to the lack of available treatment and
the discrimination faced by HIV-positive individuals in the Philippines?
II.
Background
A.
Facts
[6]
Mr. Rocha is a citizen of the Philippines born
in July 1982. He arrived in Canada in October 2009 as a temporary foreign
worker. He was granted a number of extensions of his temporary work permit, the
last one expiring in August 2013.
[7]
Mr. Rocha has been employed with the same
employer, the Delta Lodge in Kananaskis, Alberta, for the past five years as a
hotel room attendant. In October 2012, Mr. Rocha applied for permanent
residency under the provincial nominee category. The medical examination for
his application revealed that he was HIV-positive. His application was
subsequently rejected due to his medical inadmissibility.
[8]
Mr. Rocha applied for an exemption on H&C
grounds from the requirement of applying for permanent residence from outside
of Canada. In his application, he provided submissions regarding his
establishment in Canada and on the hardship he would face upon return to the
Philippines due to the lack of proper medical care and discrimination against
HIV-positive individuals. The Officer refused Mr. Rocha’s application on July
8, 2014.
B.
Decision
[9]
In her decision, the Officer first noted the
letters of support provided by Mr. Rocha’s employer and by his colleagues and
friends, and acknowledged that Mr. Rocha is a well-liked and reliable worker.
She observed that he owns a 2001 vehicle, has savings of $550 and is an active
member of his church.
[10]
Nevertheless, the Officer had certain reserves
with respect to Mr. Rocha’s establishment in Canada. The attributes of being a
reliable and well-liked worker are in keeping with the expectations of
satisfying the temporary worker requirements. Furthermore, she stated that Mr.
Rocha’s relationships did not represent strong personal ties to Canada. For
instance, only one out of ten of Mr. Rocha’s siblings lives in Canada. Also, the
letters in support of Mr. Rocha’s character were mostly written by other
foreign temporary workers from various countries. The Officer concluded that
his degree of establishment was unremarkable. She therefore gave the
establishment factor little weight in her H&C analysis.
[11]
The Officer then considered the hardship factors
laid out by Mr. Rocha. The Officer stated that the onus rests on Mr. Rocha to
establish the requirement for medical care and its unavailability in his
country. The Officer was satisfied by the evidence that Mr. Rocha is currently
living with HIV and requires specific treatment. However, the Officer was not
persuaded by Mr. Rocha’s submissions that the required medical care was not
available in the Philippines. She referred to an article submitted by Mr. Rocha
entitled “The Philippine HIV/AIDS Epidemic: A Call to
Arms”. This 2010 article acknowledged that effective treatment existed
for people living with HIV/AIDS but that “the potential
loss of external funding from the Global Fund which currently supports
antiretroviral treatment will be catastrophic”. However, through a
simple Google search, the Officer was able to find that funding was still
available through the Global Fund to the Philippines for 2014-2016. She
therefore afforded this factor very little weight in her analysis.
[12]
The Officer then looked at the alleged
discrimination Mr. Rocha would face in the Philippines as a result of his
medical condition. Mr. Rocha submitted that people living with HIV suffer from
social exclusion, gossip and insults in his home country and have their civil
rights routinely violated by state and private actors. The Officer found that
the supporting evidence provided by Mr. Rocha, described as “a few internet articles”, was
weak. Specifically, the Officer discredited the sources of two articles as not
credible since they were originating from an “alternative
news agency” and a “social news network”.
Another article was dismissed owing to the brevity of its content.
[13]
In analyzing the evidence, the Officer found
that discrimination against people with HIV was prohibited by law in the
Philippines but that there was anecdotal evidence of incidents of
discrimination reported in a US Department of State Report on Human Rights
Practices. The Officer accepted that persons living with HIV in the Philippines
may experience discriminatory acts from state and non-state actors, but she was
satisfied that effective mechanisms were in place for Mr. Rocha to assert his
rights. She noted the avenues of redress available to victims of
discrimination. Finally, the Officer also observed that Mr. Rocha had a very
supportive family network available to him in the Philippines. This support
from his family and the avenues of redress available mitigated the hardship Mr.
Rocha would experience to a degree. Consequently, the Officer accorded this
factor low weight in her overall analysis.
[14]
The combined weight of all the factors was
insufficient to satisfy the Officer that an H&C exemption was justified.
Overall, the Officer stressed that a positive H&C decision is an
exceptional response to a particular set of circumstances and that Mr. Rocha
had not satisfied her that his personal circumstances were such that he would
face unusual and undeserved or disproportionate hardship if required to apply
for a permanent resident visa from outside Canada.
C.
H&C Exemption
[15]
Subsection 25(1) of the IRPA contains the
relevant H&C exemption. The provision carves out an exemption to the
general immigration rule, set out in section 11 of the IRPA, requiring foreign
nationals to apply for visas from outside of Canada. It
provides that the Minister may grant this relief if “[he] is of the opinion that the exemption
is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly
affected”.
[16]
It has been
consistently held that an H&C exemption is an exceptional and discretionary
remedy (Legault v Canada (Minister of Citizenship
and Immigration), 2002 FCA 125 at para 15; Adams v Canada (MCI),
2009 FC 1193 [Adams] at para 30; Lee v Canada (Minister of
Citizenship and Immigration), 2008 FC 1152 at para 20; Barrak v
Canada (Minister of Citizenship and Immigration), 2008 FC 962 [Barrak]
at para 27). Such an exemption cannot become an alternative means to secure
permanent residence status unless H&C grounds are found to justify the
remedy. It is not an alternative immigration stream or
an appeal mechanism for failed asylum claimants (Kanthasamy v Canada (Minister
of Citizenship and Immigration), 2014 FCA 113 [Kanthasamy] at para
40).
[17]
Consequently, there is a very high threshold to
meet when requesting an H&C exemption. The H&C process is not designed
to eliminate all hardship that applying for a visa from outside of Canada can
cause; it is designed to provide relief from “unusual
and undeserved or disproportionate hardship” that
would ensue should the applicant be required to leave Canada and apply to
immigrate through normal channels (Lalane v Canada
(Minister of Citizenship and Immigration), 2009 FC 6 [Lalane]
at para 42). This Court has described “unusual and
undeserved or disproportionate hardship” as hardship that goes beyond
that which is inherent in having to leave Canada (Kanthasamy
at paras 41-42; Chandidas
v Canada (Minister of Citizenship and Immigration),
2013 FC 258 [Chandidas] at para 81). To
obtain relief on H&C grounds, the test is not whether Canada would be a
more desirable place to live than the applicant’s country of origin. An applicant must demonstrate something more than the usual
consequences of having to apply for permanent residence through the normal
process (Kanthasamy at para 41).
[18]
Furthermore, it has been consistently held that
the onus of establishing that the H&C exemption is warranted lies with the
applicant (Kisana v Canada
(Minister of Citizenship and Immigration), 2009 FCA 189 [Kisana] at
para 45; Barrak at para
28; Adams at para 29). “It is up to the
applicant, in his opinion, to decide what grounds are relevant H&C factors
in his particular circumstances” (Lalane at para 42). Lack of evidence or an omission to adduce relevant information in
support of an H&C application is at the peril of the applicant (Owusu
v Canada (Minister of Citizenship and Immigration), 2004 FCA 38 [Owusu]
at paras 5 and 8; Nicayenzi v Canada (Minister of Citizenship and Immigration), 2014 FC 595 at
para 16).
D.
Standard of review
[19]
The appropriate
standard of review for questions of mixed fact and law relating to H&C
decisions is that of reasonableness
(Lemus v
Canada (Minister of
Citizenship and Immigration), 2014 FCA 114 at
para 18; Frank v Canada (Minister of
Citizenship and Immigration), 2010 FC 270 at para 15). Similarly, the applicable standard to the analysis of the evidence performed
by an immigration officer in the context of an H&C application made under
section 25 of the IRPA is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] at para 47; Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 62; Kanthasamy at para 18; Lene v Canada (Minister of Citizenship and Immigration), 2008 FC 23 at para 5).
[20]
This means that considerable deference is to be
accorded to the outcome reached by the decision-maker on the record of evidence
before him or her. If the decision-maker’s decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law, the court is not allowed to intervene even if its assessment of the
evidence might have led to a different outcome (Dunsmuir
at para 47; Kanthasamy at
paras 81-84). Under the reasonableness standard, as
long as the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, a reviewing court should not
substitute its own view of a preferable outcome (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59). Given the
highly discretionary nature of H&C decisions, immigration officers have a
broad range of acceptable and defensible outcomes and a large margin of
appreciation available to them (Kanthasamy at para 84).
III.
Analysis
A.
Did the Officer err in considering Mr. Rocha’s
degree of establishment?
[21]
Mr. Rocha contends that the Officer did not
properly consider his establishment in Canada. He submits that the Officer’s
reasoning provides little understanding as to why, despite numerous factors
indicating establishment, the evidence was found insufficient to meet the
hardship threshold. Mr. Rocha says that the Officer erred in using an unknown
yardstick for establishment in Canada and in not clearly
stating what would be expected of someone in Mr. Rocha’s position. In
support of his submissions, Mr. Rocha relies on the Chandidas decision
where the Court held that an officer’s finding with respect to establishment
was not adequately explained and, as a result, not reasonable.
[22]
I disagree.
[23]
The reasons behind the Officer’s findings on
establishment were clear. In her decision, the Officer stated:
- Attributes of being a reliable and well-liked worker are in
keeping with the expectations satisfying the temporary worker requirements
rather than being evidence of significant establishment;
- Evidence that Mr. Rocha owned a vehicle in Canada, had 550$ in
savings and was an active member of his church was insufficient to
demonstrate significant establishment;
- Mr. Rocha had only one sister living in Canada, otherwise his
parents and nine other siblings lived in the Philippines;
- Most of Mr. Rocha’s letters from friends and colleagues in
Canada were from other temporary foreign workers and these relationships
did not demonstrate personal ties to Canada.
[24]
The Officer’s reasons do not show that she
placed no weight on the evidence submitted by Mr. Rocha. They only reflect that
the evidence provided was insufficient. Furthermore, the Officer’s reasons
allow the Court to understand why and how the decision-maker reached her
decision and to determine that the decision falls within the range of possible
outcomes. I cannot conclude that they do not represent a defensible outcome
based on the facts and the law.
[25]
A strong degree of establishment is required for
an H&C application to succeed. Evidence showing that an applicant could be
a model immigrant and a welcome addition to the Canadian community is not
enough. Furthermore, being a “hard-working,
law-abiding, self-sufficient, enterprising, thrifty, and charitable to others” is not the test as to whether or not there are sufficient H&C
grounds to warrant exceptional relief (Zambrano v. Canada (Minister of
Citizenship and Immigration), 2008 FC 481 at para 75). “[T]he fact that the applicant made progress
in adapting to Canadian society, held employment and became financially
independent cannot automatically allow the officer to conclude that there were
sufficient humanitarian and compassionate considerations” (Aoutlev v Canada (Minister of Citizenship
and Immigration), 2007 FC 111 at para 22). An
applicant has to establish that being forced to leave Canada will not only
cause hardship but hardship that is unusual and undeserved, or
disproportionate. It is the applicant’s onus to provide
sufficient evidence of significant establishment, not on the Officer to
investigate Mr. Rocha’s allegations and evidence (Lalane at para 42; Owusu
at para 5).
[26]
I am satisfied that the Officer’s consideration
of Mr. Rocha’s degree of establishment in Canada was not unreasonable. The
Officer acknowledged the factors that were indicative of Mr. Rocha’s
establishment and made reference to his work and integration in the community.
The Officer credited Mr. Rocha for the initiatives that he had undertaken to
establish himself in this country, but concluded that his establishment was “unremarkable” and that the disruption of his establishment did not warrant the
granting of an exemption. While acknowledging that Mr.
Rocha was a good worker, the Officer pointed out that these attributes are in
keeping with the expectations of satisfying the temporary worker requirements.
This was not unreasonable.
[27]
Mr. Rocha objects in particular to the Officer’s
findings that his relationships do not represent strong personal ties to
Canada. He claims that his letters of support were written by other temporary
foreign workers because he works in a tourist driven industry where most of the
workers are foreign workers. He further argues that it is indeed possible that
many of his temporary foreign worker friends may very well have changed status,
a fact that the Officer did not verify. At the hearing, counsel for Mr. Rocha
more specifically insisted on the fact that the Officer erred in concluding
that “most” of the individuals having submitted
letters of support were temporary foreign workers from four identified
countries.
[28]
I acknowledge that the evidence does not support
the Officer’s conclusions regarding one of those four countries identified for
the temporary workers. However, looking at the number of individuals (as
opposed to the number of letters) having written Mr. Rocha’s letters of support
and having reviewed the contents of these documents, I am not convinced that
the Officer’s finding about those relationships not representing strong
personal ties to Canada is unreasonable and falls outside the range of
possible, acceptable outcomes.
[29]
Mr. Rocha also contends that the Officer failed
to turn her mind to a letter on his volunteering work as she does not mention
it in the decision. It is well-established that decision-makers are presumed to
have considered all of the evidence before them. Therefore, they are not
required to make specific reference to every piece of evidence in the record.
Failure to analyse evidence that contradicts a tribunal’s decision will be
found to be unreasonable only when the evidence that is overlooked is critical,
contradicts the tribunal’s conclusion and reflects an unwillingness to consider
the materials before it (Herrera Andrade v
Canada (Minister of Citizenship and Immigration), 2012 FC 1490 at para 9).
This is not the case here with respect to this letter on volunteer work. I am
unable to conclude that the Officer failed to consider the documents that were
submitted by Mr. Rocha in support of his H&C application, or that she
overlooked an element of evidence squarely contradicting her conclusion (Cepeda-Gutierrez
v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35 (TD) at para 17).
[30]
An immigration officer’s determination of the
degree of an applicant’s establishment is owed deference by this Court (Thaher
v Canada (Citizenship and Immigration), 2012 FC 1439 at para 43). It
suffices that the officer’s conclusion falls within the range of acceptable
outcomes that are defensible in view of the facts and law (Dunsmuir at
para 47).
[31]
The Chandidas decision referred to by Mr.
Rocha is clearly distinguishable. In that case, Justice Kane found that the
officer had omitted to provide any explanation as to why the establishment
evidence was insufficient despite several positive establishment factors (Chandidas
at para 83). In Chandidas, the evidence showed that the family had
established themselves successfully in the community, in the schools and in
business, and that their daughter was being treated for a severe illness in
hospital, with many appointments. The officer did not turn his mind to whether
applying for permanent residence from outside Canada in those circumstances
would impose hardship going beyond that which is inherent in having to leave to
Canada (at para 82). Unlike in Chandidas, the Officer did explain why
the Mr. Rocha’s establishment evidence was insufficient. Mr. Rocha simply
disagrees with the weight that the Officer accorded to the evidence. This is
not sufficient to warrant the intervention of this Court.
B.
Did the Officer fail to properly consider
evidence of hardship?
[32]
Mr. Rocha submits that the Officer unreasonably
discarded the evidence that he would suffer undeserved hardship due to a lack
of accessible treatment for his HIV and the resulting discrimination he would
face if he were to return to the Philippines.
(1)
Lack of accessible treatment of HIV in the
Philippines
[33]
Mr. Rocha contends that the Officer incorrectly
dismissed evidence of poor medical conditions and the lack of treatment for
HIV-positive persons in the Philippines. He argues that there was no evidence
to state that the funds from Global Fund would be sufficient to make HIV
treatments more accessible in the Philippines. Simply providing some funding
does not mean that there is any improvement for treatment accessibility.
Furthermore, Mr. Rocha affirms that the Officer unreasonably omitted to make
any reference to other country conditions and merely relied on the provision of
funding.
[34]
I do not agree with Mr. Rocha’s arguments.
[35]
Mr. Rocha only provided limited evidence to the
Officer in regards to the unavailability of medical services for HIV-positive
individuals in the Philippines. The Officer did not disregard it. She merely
concluded that, through the funding of the Global Fund, effective and
accessible treatment existed for persons with HIV in the Philippines, and that
effective treatment was available to Mr. Rocha. There were no other pieces of
evidence before the Officer that would indicate that the provision of funding
was not a guarantee of effective and accessible treatment. Neither was there
evidence that the amount referred to in the article was by no means large when
compared to allocations being provided to other nations.
[36]
The evidence and submissions of Mr. Rocha on the
alleged unavailability of HIV treatment in the Philippines were considered and
assessed. The Officer concluded that the evidence did not support a conclusion
that treatment would not be available for Mr. Rocha in the Philippines. Once
again, Mr. Rocha simply disagrees with the weight given to that evidence by the
Officer. The onus was on Mr. Rocha to demonstrate that an acceptable treatment
was not available in his country, but the Officer found that he had failed to
do so.
[37]
I am satisfied that there was evidence on the
record indicating that treatment for HIV-positive patients was available in the
Philippines and that it was free. In light of such evidence, the Officer
reasonably concluded that Mr. Rocha had not demonstrated that he would not have
adequate treatment in his home country. Counsel for Mr. Rocha referred to some
evidence indicating that the medical staff for HIV-positive patients was in
short supply; however, it was reasonably open to the Officer to conclude, in
light of all the evidence before her, that this did not mean that Mr. Rocha
could not access effective treatment.
(2)
Discrimination against HIV-positive individuals
in the Philippines
[38]
Mr. Rocha further contends that the Officer was
inexplicably dismissive of the discrimination faced by HIV-positive people in
the Philippines, despite the clear evidence of discrimination. Mr. Rocha also
submits that the Officer erroneously dismissed two of the articles he had
submitted as not being credible, without providing any reason why the sources
were not appropriate. Finally, Mr. Rocha claims that the Officer ignored
evidence as to the inadequacy of the methods of redress available in the
Philippines for anyone who believes his or her rights have been violated.
[39]
I am not persuaded by Mr. Rocha’s arguments.
[40]
The Officer did explain why she did not accord
weight to the two articles submitted by Mr. Rocha: she found the sources not to
be credible and sufficient because they originated from alternative news
sources and a social news network. This was the explanation for the Officer’s
decision to afford little weight to their content. Mr. Rocha may disagree with
the explanation or with the Officer’s decision, but I do not find that this
conclusion falls outside the realm of possible, acceptable outcomes defensible
in view of the facts and the law.
[41]
Similarly, the Officer gave little weight to
another document provided by Mr. Rocha because it covered nine Asian countries
with little specific information regarding the situation in the Philippines.
This was not unreasonable.
[42]
The Officer further acknowledged that there was
anecdotal evidence of incidents of discrimination in the US Department of State
reports but noted that there were avenues of redress available in the
Philippines for anyone who has had their rights violated. Once again, I am
satisfied that this was not an unreasonable conclusion to draw given the
evidence and the submissions that were before the Officer. The Officer
specifically reviewed some of the evidence in the US Department of State report
referring to avenues of redress available to Mr. Rocha. Mr. Rocha offers a
different interpretation of what these extracts could mean, highlighting
certain shortcomings or limits of such avenues; however, having a different
view on the meaning of that evidence is not sufficient to render the Officer’s
conclusions unreasonable.
[43]
Further to her analysis, the
Officer accepted and acknowledged that there was some discrimination against
HIV-positive persons in the Philippines. However, she noted that the evidence
was not sufficient, because of other factors on the record, to support the
exceptional H&C exemption requested by Mr. Rocha as it was found to be “weak”. In assessing the hardship linked
to possible discrimination in the Philippines, the Officer also referred to the
support Mr. Rocha would receive from his family network in his home country.
[44]
In conducting a reasonableness review of factual
findings, it is not the role of this Court to reweigh the evidence or the
relative importance given by the immigration officer to any relevant factor (Dunsmuir
at para 47; Kanthasamy at para 99). Mr. Rocha’s arguments on the factual
findings of the Officer on the issue of discrimination once again invite the
Court to substitute its view of the evidence for that of the Officer. This is
not something that the Court is entitled to do on judicial review.
[45]
A judicial review is not a “line-by-line treasure hunt for error” (Communications, Energy and Paperworks Union
of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 at para
54). The Court should approach the reasons with a view to “understanding, not to puzzling over every
possible inconsistency, ambiguity or infelicity of expression” (Canada (Citizenship and Immigration v
Ragupathy, 2006 FCA 151 at para 15). In addition, a
decision-maker is deemed to have considered all the evidence on the record (Hassan
v Canada (Minister of Citizenship and Immigration), [1992] FCJ No 946 (FCA)
at para 3; Kanagendren v Canada (Minister of Citizenship and Immigration),
2015 FCA 86 at para 36). A failure to mention an element of evidence does not
mean that it was ignored or that there was a reviewable error.
[46]
Even using the “serious possibility” standard of proof referred to by counsel for
Mr. Rocha for claims of discrimination, I am satisfied that the Officer
reasonably concluded that Mr. Rocha would not suffer
unusual and underserved or disproportionate hardship resulting from
discrimination if he were to return to the Philippines and had to apply for
permanent residence from that country.
IV.
Conclusion
[47]
The Officer determined that there were
insufficient considerations to justify granting Mr. Rocha an H&C exemption
under section 25 of the IRPA. Such an exemption is an exceptional remedy. The
Officer’s refusal of Mr. Rocha’s application for a permanent resident on
H&C grounds represented a reasonable outcome based
on the law and the evidence. On a standard of
reasonableness, it suffices if the decision subject to judicial review falls within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law. Therefore, I
must dismiss this application for judicial review.
[48]
Mr. Rocha simply disagrees with the assessment
of the evidence the Officer relied on in rendering her decision, and invites
the Court to replace this decision with a new assessment of the evidence. This
does not meet the standards for judicial review.
[49]
Neither party has proposed a question of general
importance to certify. I agree there is none.
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