[2013] 2 F.C.R. D-1
Citizenship and Immigration
Status in Canada
Permanent Residents
Humanitarian and Compassionate Considerations
Judicial review of negative ruling on application for exemption on humanitarian, compassionate grounds (H&C application); related to applicant’s judicial review of pre-removal risk assessment—Both applications brought under Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 72(1)—Applicant, Chinese widow, HIV positive, mother of two sons—Failed refugee claimant in Canada—In H&C application, applicant claiming not having access to life-saving treatment if returned to China, would suffer discrimination in China given HIV status—Officer reviewing applicant’s file determining that factors favouring application not justifying exemption—In decision, officer discussing Xinhua news agency article from on-line source (“Xinhuanet”) reporting pledges by Chinese government of further measures to help HIV/AIDS sufferers—Article in question published eleven days before H&C decision made in present case—Whether officer failing to observe procedural fairness by relying on extrinsic evidence without providing applicant with opportunity to respond; whether applying wrong H&C test; whether making unreasonable decision—Report of Chinese government’s announcement of intentions regarding HIV/AIDS services in public domain when officer making decision—Article from Xinhuanet not novel, significant; not evidencing changes in general country conditions; referring to Chinese government’s future plans to continue efforts to address HIV/AIDS—While officer finding announcement worth mentioning, not meaning announcement treated as significant new evidence of change in country conditions potentially affecting officer’s decision—Objective documentation relied upon by officer indicating that China making efforts to assist individuals living with HIV/AIDS—Thus, officer not breaching procedural fairness by failing to disclose news report or invite further submissions—Officer not erring by applying wrong test (relevant to pre-removal risk assessment) to H&C application—Officer also not making unreasonable decision by, inter alia, misconstruing or ignoring evidence, disregarding evidence—Reasons for decision clearly showing that officer considering all documentation presented; within officer’s discretion to assign suitable weight to each piece of evidence; not Court’s role to reweigh evidence—Officer’s findings transparent, intelligible, justified; falling within range of acceptable outcomes—Application dismissed.
Yang v. Canada (Citizenship and Immigration) (IMM-1830-12, 2013 FC 20, Mosely J., judgment dated January 10, 2013, 16 pp.)