Docket: IMM-809-17
Citation:
2017 FC 963
Ottawa, Ontario, October 27, 2017
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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Z. W.
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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
[1]
Under review is a decision of a Senior
Immigration Officer that “the applicant’s personal
circumstances are [not] such that sufficient humanitarian and compassionate
grounds exist to approve this request for an exemption from the requirements of
the Immigration and Refugee Protection Act.”
[2]
For the reasons that follow, I find the
officer’s decision to be unreasonable and I grant this application for judicial
review.
[3]
Z. W. was born in China but left in 1991 and
moved to Kenya with her only child, a daughter. She adopted an English name, gained
Kenyan citizenship and lost her Chinese citizenship, and operated a business in
Kenya which she says was robbed. The police offered her no assistance. In
2001, her daughter was granted a student visa and Z. W. was granted a visitor
visa and they came to Canada.
[4]
The daughter has since graduated, gotten
married, and has two children. She is now a permanent resident of Canada.
[5]
Efforts by the applicant to remain in Canada by
way of a refugee application and a spousal sponsorship application were
unsuccessful. She has no family members in Kenya. She has learned that she is
HIV positive.
[6]
Her counsel advanced four grounds why the
decision refusing her humanitarian and compassionate [H&C] application was
unreasonable: (1) the officer ignored or misconstrued evidence, (2) the officer
fixated on the applicant’s past immigration history, (3) the officer failed to
consider the best interests of the child, and (4) the officer unreasonably
failed to exempt the applicant from medical inadmissibility on H&C grounds.
[7]
I agree with the applicant that the officer
misconstrued the evidence that showed that there is discrimination in Kenya
towards Chinese persons. The officer appears to have accepted that the
discrimination towards those of Chinese origin is directed only to those who
poach ivory, sell low quality Chinese goods, or engage in unfair commercial
practices. In fact, the evidence appears to indicate that these are the “reasons” why Kenyans discriminate against Chinese
persons and that such discrimination occurs regardless of their activities.
[8]
I also agree with the applicant that the officer
appears to have been unduly focused on the applicant’s immigration history and
the fact that she overstayed her visa, without considering that she did so to
remain in Canada with her underage daughter.
[9]
Alone, neither of these would have resulted in a
finding that the decision was unreasonable; however, the officer’s findings in
two other respects do lead to that conclusion.
[10]
The applicant’s daughter and son-in-law both
wrote letters of support. Her daughter wrote:
She has been more than a mother to me and we
have been each other’s only family members and main supporters for numerous
years.
[…]
She has been a great help to my little
family, and without her here we would have practically no support system.
Her son-in-law
wrote:
It would be absolutely devastating if [the
applicant] will not be allowed to remain in Canada. We would not have the
profound family support that [the applicant] has showed us, and the support we
need as a young, small family. My own parents have not been there for us like
my mother-in-law has, and we need her to be part of our little family.
[11]
Both provided examples of this “profound family support” including the applicant
caring for her granddaughter. The officer fails to reference these letters and
certainly fails to engage with this evidence. The officer’s conclusion that
the applicant’s family would experience “the normal
emotional sadness which is experienced when separating from one’s parent/child”
is unreasonable unless the officer actually addresses this evidence.
[12]
The second aspect of the decision that fails a
reasonableness analysis involves the applicant’s HIV status. The officer acknowledges
that “many people living with HIV continue to face
stigma and discrimination” in Kenya, yet finds that there is
insufficient evidence that the applicant “may be forced
to disclose her HIV status” and that “it is
difficult to understand how or why the applicant would be shunned if people did
not know of her health concerns.”
[13]
The officer describes at length the available
treatment in Kenya for HIV positive persons – treatment this applicant will
require. What the officer fails to consider is that one cannot receive
treatment without disclosing that one is HIV positive and whether such
disclosure might or is likely to result in further disclosure. Moreover, as
the applicant submits, if she will face stigma and discrimination if her status
is discovered, then she “will have to live her entire
life in fear of being ‘discovered’ that she is HIV positive should she return
to Kenya.” That is a reality this officer failed to consider.
[14]
For these reasons the decision cannot stand and
I need not address the applicant’s submissions regarding the best interests of
the child or the applicant’s request for exemption from medical inadmissibility.
Neither party proposed a question for certification and on the particular facts
there is none.
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