Cezair v. Canada (Citizenship and Immigration), 2019 FC 1510 : H&C Refusal Set Aside Where Officer Discounted Gender-Based Violence and Country Conditions Because Applicant’s Family Members Had Not Personally Experienced Them

The Federal Court reviewed the refusal of an inland permanent residence application based on humanitarian and compassionate grounds.

The applicant had lived in Canada for more than 20 years and relied in part on evidence of violent crime, gender-based violence, and discrimination against women in Trinidad and Tobago.

The officer gave those country conditions only nominal weight because there was no evidence that the applicant’s relatives in Trinidad had personally experienced violence or discrimination. The Court found that reasoning unreasonable.

Key Principle

An H&C applicant relying on adverse country conditions must demonstrate a sufficient connection between those conditions and their personal circumstances.

However, that connection does not necessarily require evidence that the applicant or their relatives have already personally experienced the harm.

Where country evidence demonstrates widespread violence, discrimination, or gender-based violence affecting a particular group, an applicant’s membership in that group may provide the required personal connection.

An officer cannot reasonably discount such evidence merely because family members belonging to the same group have not themselves been victims.

Background

The applicant was a citizen of Trinidad and Tobago who entered Canada as a visitor in 1998 and remained after her status expired.

She applied for H&C relief in 2017, relying on her lengthy establishment in Canada, employment, community and church involvement, personal relationships, and hardship associated with returning to Trinidad and Tobago.

Her application also relied significantly on country evidence concerning widespread violence, discrimination against women, and gender-based violence.

The officer acknowledged these conditions but assigned them only nominal weight. Among the reasons given was the absence of evidence showing that the applicant’s siblings, father, sisters, or sisters-in-law in Trinidad had themselves experienced violence or discrimination.

Court Findings

The Court found that the officer’s approach to the country condition evidence was unreasonable.

With respect to general violent crime, the officer reasoned that if conditions were as dangerous as alleged, one might expect at least some of the applicant’s family members to have personally experienced violence.

The Court rejected that reasoning. The absence of harm to particular relatives was not a rational basis for minimizing objective evidence of widespread violence.

The error was even clearer regarding gender-based violence and discrimination. The officer discounted this evidence because the applicant had not shown that her sisters and sisters-in-law had personally encountered discrimination in employment, housing, education, or access to police protection.

The Court held that this effectively created an improper requirement that family members must first have experienced discrimination or violence before broader evidence of pervasive gender-based conditions could receive meaningful weight.

The Court emphasized that where the evidence concerns broad risks affecting a group, showing membership in that group may be sufficient to establish the necessary connection. The fact that some members of the group have not been harmed does not negate the existence or relevance of the broader risk.

The Court did not accept the applicant’s other principal arguments. It found that the officer had not improperly applied a hardship-only test, had conducted a global assessment of the H&C factors, and had not breached procedural fairness by consulting publicly available information about Catholic churches in Trinidad and Tobago.

Outcome

The Federal Court allowed the application for judicial review, finding that the unreasonable assessment of the country condition evidence undermined the H&C decision as a whole. The matter was remitted to a different officer for redetermination.

Case Citation:

Cezair v. Canada (Citizenship and Immigration), 2019 FC 1510 CanLII