Date: 20110126
Docket: IMM-3696-10
Citation: 2011 FC 91
Toronto, Ontario, January 26,
2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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FERONA ELAINE MINGS-EDWARDS
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Ferona Elaine
Mings-Edwards’ application for a Pre-removal Risk Assessment identified two
distinct risk grounds. One was the harm that she claimed to face at the hands
of her abusive former domestic partner. The other was the discrimination and
social stigma that she says she would be exposed to in Jamaica because she is an HIV+ woman.
[2]
The
PRRA Officer found that the
determinative issue was the availability of state protection for Ms.
Mings-Edwards in Jamaica. I am of the view that this decision
was unreasonable insofar as it related to the evaluation of the allegation of
risk based upon Ms. Mings-Edwards’ HIV status.
Analysis
[3]
In
addressing the HIV-based component
of Ms. Mings-Edwards’s PRRA application, the Officer referred to a document
produced by Ms. Mings-Edwards which indicated that she could face stigma and
discrimination in her community because of her HIV+ status. The Officer
rejected this evidence, stating that it was “speculative in nature and not
supported by corroborating evidence”.
[4]
This
finding in unreasonable. Ms.
Mings-Edwards had provided the Officer with copious country condition
information addressing the treatment accorded to HIV+ individuals in Jamaica. This evidence indicated that individuals living with
HIV/AIDS in Jamaica face significant social stigma and
discrimination, and that there are no laws in place to protect HIV+ individuals
from discrimination. Amnesty International describes this as a “pressing unmet
obligation”.
[5]
The
documentary evidence also
demonstrated that HIV+ individuals in Jamaica are often ostracized by their families.
They may lose their homes and their jobs, and can be treated like “a throwaway
person”.
[6]
Because
AIDS is frequently dismissed
as a disease of gay men and prostitutes, women infected with HIV are
particularly stigmatized in Jamaican society, as they are regarded either as
promiscuous or as sex trade workers. This can expose them to violence, and can
also negatively affect their ability to access health care and other services.
[7]
This
evidence was rejected by the
Officer solely on the basis that the documents were “indicative of a
generalized nature of the human rights and HIV/AIDS issues in Jamaica”. This was unreasonable, as the documents squarely address
the risks facing women in Jamaica sharing Ms. Mings-Edwards’ profile. As
such, they were directly relevant to Ms. Mings-Edwards’s claim that she will
face significant social stigma, discrimination and isolation in Jamaica because of her HIV+ status.
[8]
Whether
this social stigma,
discrimination and isolation amounts to persecution, or cruel and unusual
treatment or punishment, is a different question - one that was never addressed
by the Officer.
[9]
The
Officer also stated that the
country condition information did “not rebut the presumption that state
protection is available to the applicant in Jamaica”.
This statement is followed by 11 paragraphs of discussion of the documentary
evidence relating to the availability of state protection. However, this
entire discussion relates to the availability of state protection in Jamaica for victims of domestic violence. There is no discussion
whatsoever of the availability of state protection for HIV+ women.
[10]
Consequently,
the Officer’s finding that
adequate state protection is available to Ms. Mings-Edwards in Jamaica lacks the “justification,
transparency and intelligibility” required of a reasonable decision: Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47.
Conclusion
[11]
For
these reasons, the
application for judicial review is allowed.
Certification
[12]
Neither
party has suggested a
question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
This
application for judicial
review is allowed, and the matter is remitted to a different PRRA Officer for
re-determination; and
2.
No
serious question of general
importance is certified.
“Anne Mactavish”
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