A senior immigration officer’s determination to refuse an HIV-positive South African girl’s bid for everlasting residency in Canada on humanitarian and compassionate grounds didn’t give sufficient weight to her abusive husband’s repeated threats to withdraw his sponsorship, a Federal Court docket decide has dominated.
The officer’s failure to correctly contemplate Grace Mabena’s “circumstances as a survivor of household violence and the hardship she’s going to face in South Africa renders the choice unreasonable,” Justice Allyson Whyte Nowak wrote in a current determination out of Toronto.
Whereas the immigration officer accepted that Mabena had been the sufferer of home abuse and that her husband used his spousal sponsorship to manage her, the officer gave insufficient consideration to those circumstances, the decide discovered.
“The officer’s failure to take action has the perverse impact of permitting spousal sponsorship inside the immigration system for use as a sword in a system meant to protect claimants from hurt,” mentioned Whyte Nowak.
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Mabena — who requested the courtroom to overview the immigration officer’s determination — got here to Canada on a brief resident visa in January 2020 and that very same month married a everlasting resident who was her long-term boyfriend.
Three months after the couple married, Mabena’s husband sponsored her software for everlasting residency.
“All through their marriage, the Husband repeatedly threatened to withdraw his sponsorship, and in 2022, he withdrew his sponsorship solely to reinstate it weeks later,” Whyte Nowak mentioned.
Mabena’s “marriage was punctuated with abuse,” in response to the decide.
Mabena “particulars seven incidents of bodily violence that she endured within the interval between April 2020 by Could 2023. The violence was perpetrated by her husband in addition to his kids from one other relationship.”
She left him in Could of 2023.
“After enduring over three years of bodily, emotional and psychological abuse, the applicant left her husband and sought refuge in a girls’s shelter. She transformed her software for everlasting residence into an software based mostly on humanitarian and compassionate grounds,” mentioned Whyte Nowak’s determination, dated April 15.
The immigration officer’s July 26, 2023 determination to refuse Mabena’s software “gave ‘some weight’ to elements associated to the applicant’s institution in Canada and circumstances of household violence, however gave ‘little’ weight to the hardship that the applicant claimed she would face if she have been compelled to return to South Africa,” the decide mentioned.
“The officer concluded that the applicant’s need to stay in Canada was not a ample purpose to permit her to stay within the nation.”
Mabena “is very educated, having obtained her Grasp in Enterprise Administration from Studying College in October 2021,” Whyte Nowak mentioned. “She has been gainfully employed since she arrived in Canada, and on the time of her (humanitarian and compassionate) software, she was working as a nationwide consumer supervisor at a advertising firm.”
Mabena has been HIV optimistic since 2013. She instructed the decide that she fears that if she is compelled to return to South Africa, she will be unable to afford her treatment as she bought every part she had when she left and has no prospect of employment there.
Whyte Nowak discovered that the immigration officer “erred in contemplating that home violence has no significance to (a humanitarian and compassionate) evaluation except linked to hardship related to the applicant’s return to South Africa. In confining this issue to such restricted consideration, the officer fettered their discretion and did not heed the courtroom’s course to conduct a world evaluation and contemplate the precise circumstances of the case.”
That made the officer’s determination unreasonable, mentioned the decide.
“The consequence of ignoring the home violence skilled by the applicant is that the choice fails to acknowledge the position the immigration course of had within the violence, albeit unintentionally, when the applicant remained in her marriage for worry of being deported,” Whyte Nowak mentioned.
The decide granted Mabena’s software for a judicial overview. “The matter is returned for redetermination by a special determination maker.”
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