HIV positive South African woman gets another chance at Canadian permanent residency

A senior immigration officer’s decision to refuse an HIV-positive South African woman’s bid for permanent residency in Canada on humanitarian and compassionate grounds didn’t give enough weight to her abusive husband’s repeated threats to withdraw his sponsorship, a Federal Court judge has ruled. The officer’s failure to properly consider Grace Mabena’s “circumstances as a survivor of family violence and the hardship she will face in South Africa renders the decision unreasonable,” Justice Allyson Whyte Nowak wrote in a recent decision out of Toronto. While the immigration officer accepted that Mabena had been the victim of domestic abuse and that her husband used his spousal sponsorship to control her, the officer gave inadequate consideration to these circumstances, the judge found. “The officer’s failure to do so has the perverse effect of allowing spousal sponsorship within the immigration system to be used as a sword in a system meant to shield claimants from harm,” said Whyte Nowak.

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Mabena — who asked the court to review the immigration officer’s decision — came to Canada on a temporary resident visa in January 2020 and that same month married a permanent resident who was her long-term boyfriend. Three months after the couple married, Mabena’s husband sponsored her application for permanent residency. “Throughout their marriage, the Husband repeatedly threatened to withdraw his sponsorship, and in 2022, he withdrew his sponsorship only to reinstate it weeks later,” Whyte Nowak said. Mabena’s “marriage was punctuated with abuse,” according to the judge. Mabena “details seven incidents of physical violence that she endured in the period between April 2020 through May 2023. The violence was perpetrated by her husband as well as his children from another relationship.” She left him in May of 2023. “After enduring over three years of physical, emotional and psychological abuse, the applicant left her husband and sought refuge in a women’s shelter. She converted her application for permanent residence into an application based on humanitarian and compassionate grounds,” said Whyte Nowak’s decision, dated April 15. The immigration officer’s July 26, 2023 decision to refuse Mabena’s application “gave ‘some weight’ to factors related to the applicant’s establishment in Canada and circumstances of family violence, but gave ‘little’ weight to the hardship that the applicant claimed she would face if she were forced to return to South Africa,” the judge said. “The officer concluded that the applicant’s desire to live in Canada was not a sufficient reason to allow her to remain in the country.” Mabena “is highly educated, having received her Master in Business Administration from Reading University in October 2021,” Whyte Nowak said. “She has been gainfully employed since she arrived in Canada, and at the time of her (humanitarian and compassionate) application, she was working as a national client manager at a marketing company.” Mabena has been HIV positive since 2013. She told the judge that she fears that if she is forced to return to South Africa, she will not be able to afford her medication as she sold everything she had when she left and has no prospect of employment there. Whyte Nowak found that the immigration officer “erred in considering that domestic violence has no significance to (a humanitarian and compassionate) assessment unless linked to hardship associated with the applicant’s return to South Africa. In confining this factor to such limited consideration, the officer fettered their discretion and failed to heed the court’s direction to conduct a global assessment and consider the specific circumstances of the case.” That made the officer’s decision unreasonable, said the judge. “The consequence of ignoring the domestic violence experienced by the applicant is that the decision fails to acknowledge the role the immigration process had in the violence, albeit unintentionally, when the applicant remained in her marriage for fear of being deported,” Whyte Nowak said. The judge granted Mabena’s application for a judicial review. “The matter is returned for redetermination by a different decision maker.” Our website is the place for the latest breaking news, exclusive scoops, longreads and provocative commentary. Please bookmark nationalpost.com and sign up for our daily newsletter, Posted, here.