Nicayenzi v. Canada (Citizenship and Immigration), 2014 FC 595 : H&C Refusal Overturned Because Officer Speculated About Access to Medical Treatment

The Federal Court reviewed the refusal of an H&C application by a Burundian applicant who relied on her establishment in Canada, her circumstances as a widow and her medical condition.

The Court found that the officer reasonably rejected the widowhood argument but made an unreasonable and unsupported assumption that the applicant would have access to HIV treatment in Burundi.

Key Principle

An H&C decision must be based on evidence rather than speculation.

Where an applicant establishes that access to necessary medical treatment in the country of return is seriously limited, an officer cannot simply assume that the applicant will be among the small percentage of people who can obtain treatment without supporting evidence.

If the officer relies on a concern that the applicant could not reasonably have anticipated, procedural fairness may require that the applicant be given an opportunity to respond.

Background

The applicant was a citizen of Burundi who came to Canada in 2008. She later applied for permanent residence on H&C grounds.

She relied on her establishment in Canada, her alleged status as a widow and her HIV-positive medical condition. She argued that returning to Burundi would expose her to hardship because she would have difficulty obtaining adequate medical treatment.

She also raised the best interests of two young female cousins in Burundi whom she hoped eventually to adopt and bring to Canada.

The officer refused the H&C application. The officer found that the applicant had not established her widowhood and concluded that, because of her education and professional background, she would likely be among the relatively small percentage of HIV-positive people in Burundi able to access appropriate treatment.

Court Findings

The Federal Court found that the officer’s assessment of the applicant’s widowhood was reasonable. The applicant had provided contradictory information about her marital status and had not adequately explained those inconsistencies. The officer was therefore entitled to give limited weight to that H&C factor.

The Court reached a different conclusion regarding the applicant’s access to HIV treatment.

The evidence before the officer established that only approximately 23% of HIV-positive Burundians at an advanced stage of the disease had access to the necessary treatment. Despite this evidence, the officer concluded that the applicant’s previous professional employment meant that she would probably fall within that minority.

The Court found that this conclusion was pure speculation. There was no evidence concerning the applicant’s likely salary, whether she could return to her former employment, who had access to HIV treatment in Burundi, or the cost of her medication.

The officer therefore made an unsupported inference that was not grounded in the evidence.

The Court also found that the applicant could not reasonably have anticipated this concern because her HIV condition was discovered after she came to Canada and the officer’s conclusion about access to treatment was based on an assumption rather than evidence.

The applicant should therefore have been given an opportunity to respond to the concern before the H&C application was refused.

Outcome

The Federal Court allowed the application for judicial review and returned the matter to the same immigration officer for redetermination.

Case Citation:

Nicayenzi v. Canada (Citizenship and Immigration), 2014 FC 595 CanLII