Rocha v. Canada (Citizenship and Immigration), 2015 FC 1070 : H&C Refusal Upheld Where Applicant Did Not Prove Exceptional Hardship From HIV Treatment or Discrimination

The Federal Court reviewed the refusal of an H&C application made by a Filipino temporary foreign worker who was living with HIV.

The applicant argued that his establishment in Canada, difficulties accessing HIV treatment in the Philippines, and discrimination against HIV-positive persons justified an exemption.

The Court upheld the refusal.

Key Principle

An H&C applicant bears the burden of providing sufficient evidence showing that their personal circumstances justify exceptional relief.

Positive establishment in Canada, medical concerns, and discrimination may all be relevant, but the officer is entitled to assess the quality and strength of the evidence supporting each factor.

Background

Mr. Rocha came to Canada in 2009 as a temporary foreign worker and worked for the same Alberta hotel for approximately five years.

A medical examination connected to a provincial nominee application revealed that he was HIV-positive, and that permanent residence application was refused for medical inadmissibility.

He later applied for H&C relief, relying on his Canadian establishment and the hardship he said he would experience if returned to the Philippines.

Court Findings

The Federal Court found that the officer reasonably considered Mr. Rocha’s establishment.

The officer acknowledged his employment, community involvement, church participation, and letters of support, but concluded that his overall establishment was not sufficiently significant to justify H&C relief.

The Court emphasized that being a reliable employee, financially independent, and well integrated does not automatically establish sufficient H&C circumstances.

The Court also upheld the officer’s assessment of medical hardship.

The officer accepted that Mr. Rocha required HIV treatment but found insufficient evidence that appropriate treatment would be unavailable in the Philippines.

Similarly, the officer acknowledged evidence of discrimination against HIV-positive persons but found that the evidence did not establish hardship sufficient to justify the exemption, particularly given available avenues of redress and Mr. Rocha’s family support network.

Outcome

The Federal Court dismissed the application for judicial review.

The Court found that the officer had considered the relevant evidence and that Mr. Rocha was essentially asking the Court to reweigh it, which is not the role of judicial review.

Historical Note: This decision applied the pre-Kanthasamy approach emphasizing “unusual and undeserved or disproportionate hardship.” The Supreme Court subsequently clarified the H&C framework in Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61.

Case Citation:

Rocha v. Canada (Citizenship and Immigration), 2015 FC 1070 CanLII