Date: 20061124
Docket: IMM-694-06
Citation: 2006 FC 1427
BETWEEN:
BRANISLAV
GLUVAKOV
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing on the 15th of November, 2006, at Toronto, of an
application for judicial review of a decision of a Pre-Removal Risk Assessment
Officer (the “Officer”) wherein the Officer determined:
After a consideration of
the facts of this application and the documentary evidence in reference, it is
my finding that the applicant does not face more than a mere possibility of
persecution for any of the Convention grounds in Serbia and Montenegro. This
application does not meet the requirements of Section 96 of the Immigration and
Refugee Protection Act.
The evidence was also
carefully assessed in considering the application of Section 97 of the
Immigration and Refugee Protection Act. I find that there is insufficient
evidence to conclude that the applicant, if returned to Serbia and Montenegro, would be
subjected to a danger, believed on substantial grounds to exist, of torture
within the meaning of Article 1 of the Convention Against Torture.
Furthermore, I find that
it is unlikely that the applicant would be subjected personally to a risk to
his life or to a risk of cruel and unusual treatment or punishment. As a
result, this application for protection does not meet the requirements of
subparagraph 97(1)(b)(i) of the Immigration and Refugee Protection Act.
In the result, the Applicant’s PRRA
application was rejected. The decision under review is dated the 20th
of December, 2005.
BACKGROUND
[2]
The
Applicant is a citizen of the former Yugoslavia. He arrived in Canada in 1966, at
the age of sixteen (16), under sponsorship by his father. He was for many
years a permanent resident of Canada. He became a drug addict. He turned to
crime to support his addiction. In the mid-1990s, he was diagnosed as
suffering from Hepatitis C. By reason of his criminal activity, his permanent
resident status was revoked.
[3]
In
or about 2001, the Applicant commenced methadone maintenance treatment and has
been receiving counselling. According to evidence that was before the Officer
from an addictions/community support worker for Toronto Public Health, the Applicant’s
methadone maintenance treatment, in combination with the counselling, has since
helped the Applicant to remain drug-free. That being said, he apparently
remains challenged by ill health, due to his Hepatitis C. The
addictions/community support worker expresses the opinion that:
…if [the Applicant] were
to be removed from his network of medical, psychological and familial support,
he would be at high risk of relapse to injection drug use, which can be fatal
for those who suffer from hepatitis C.
[4]
The
Applicant, in his PRRA application, expresses the fear, supported by
documentation accompanying that application, that no equivalent support network
and methadone maintenance treatment would be available to him if he were
required to return to what is now Serbia and Montenegro.
THE DECISION UNDER
REVIEW
[5]
The
Officer reviews at some length the state of the health care system in Serbia and Montenegro. The
Officer then goes on to apply his or her interpretation of that review to the
specific concerns of the Applicant. The Officer writes:
The applicant submitted
that he would face persecution as a drug addict and a sufferer from Hepatitis
C, and that he would be at risk to his life because of the lack of adequate
treatment. Furthermore, the applicant stated that methadone treatment is not
available in Yugoslavia and that there is nothing to indicate that Yugoslavia is not able
to provide adequate methadone treatment, therefore, it is a policy decision
which discriminates against addicts, and causes a risk to their lives.
Although the health sector has suffered due to the general crisis in Serbia in
the past decade, based upon objective documentary evidence, it is my finding
that Serbia and Montenegro with the financial assistance and efforts of other
countries and international agencies, are making concrete efforts to confront
the problematic issues that the health sector faces at the moment.
Furthermore, according to “The Coordinating and Information Resource Center for
International Travel by Patients Receiving Methadone and other Substitution
Treatments for Opiate Addiction (“The Travel Resource Center”), as of August
31, 2005 methadone maintenance treatment (MMT) (including pilot programs) is
available (approved) in Serbia. Therefore, I do not find that the applicant
would be at risk of persecution due to being a member of a particular social
group, as the Serbian government is not targeting individuals such as the
applicant and causing them to be at risk of persecution or at risk to their
lives. I also do not find that the Serbian government would be unwilling or
unable to provide adequate protection to the applicant, or that they would deny
or withhold medical care from the applicant if required. Based upon
documentary evidence, it is my finding that there is insufficient persuasive
evidence to indicate that the applicant would be denied access to the
treatments and services afforded other citizens of Serbia and Montenegro and
that he would be at risk due to his medical condition.
[6]
The
Officer’s reliance on the Coordinating and Information Resource Center for
International Travel by Patients Receiving Methadone and other Substitution
Treatments for Opiate Addiction is, and this was not in dispute before the
Court, drawn from a web site of that Center as it appeared on or shortly after
the 31st of August, 2005. It was equally not in dispute before the
Court that the Applicant made reference to that web site in his submissions and
supporting material constituting his PRRA application. But the Applicant’s
application was submitted well in advance of the 31st of August,
2005, at a time when the 31st of August, 2005 information relied on
by the Officer was not part of the web site.
[7]
The
Officer did not refer the Applicant to the updated material on the web site on
which he or she relied. The Applicant was provided no opportunity to comment
on the updated material or the interpretation placed on it by the Officer.
Subsequent to the release of the decision under review, Applicant’s counsel
contacted the Center, that is to say the originator of the web site, and
advised the Court, without objection on the part of the Respondent, that he had
been provided with further information that might well have cast doubt on the
Officer’s reliance on the 31st of August, 2005 material.
THE ISSUES
[8]
In
the Memorandum of Argument filed on behalf of the Applicant, the following
issues on this application for judicial review are identified:
-
Did
the officer deny the applicant natural justice by relying on a document that
was not in existence at the time of the applicant’s submissions as evidence of
a change of circumstances - - i.e. As proof that methadone treatment would be
available for members of the applicant’s particular social group?
-
Did
that error cause the officer to reject the applicant’s claim on the basis of s.
96 and s. 97 of the Immigration and Refugee Protection Act?
[9]
In
response, counsel for the Respondent urged that, whether or not the Officer
relied on extrinsic evidence without providing the Applicant an opportunity to
respond to that evidence, the result on the Applicant’s application would
inevitably go against the Applicant by virtue of subparagraph 97(1)(b)(iv) of
the Immigration and Refugee Protection Act (the
“Act”), since the Applicant, as an inadmissible person, is not entitled to protection on a Convention refugee ground and the
Applicant is excluded from being a person in need of like protection in that
the sole risk identified by him relates to the “inability” of Serbia or Serbia
and Montenegro to provide adequate health or medical care.
ANALYSIS
Standard of Review
[10]
On
questions of procedural fairness or denial of natural justice, a pragmatic and
functional analysis is not required. Rather, if the appropriate degree of
procedural fairness or natural justice has not been accorded, no deference is
owed and the decision must be set aside.
[11]
On
issues of the standard of review to be applied to interpretation of sections 96
and 97 of the Act, and more particularly, medical access, the standard
of review has been found to be correctness. I am satisfied that, on the facts of
this matter, “correctness” is the appropriate standard of review of the
interpretation of subparagraph 97(1)(b)(iv) of the Act.
Denial of Natural
Justice or Procedural Fairness
[12]
As
earlier indicated in these reasons, the Officer relied on information from a
web site to which he or she had been directed by the Applicant, but the
information on that web site that was relied on post-dated the date of the
Applicant’s application and no opportunity was provided to the Applicant to
respond to the information relied on.
[13]
In
Fi v. Canada (Minister of Citizenship and Immigration), my
colleague Justice Martineau wrote at paragraph 8:
First, the PRRA Officer
violated the applicant’s right to procedural fairness in the determination of
his application for protection. The principles mentioned by the Federal Court
of Appeal in Mancia v. Canada (Minister of
Citizenship and Immigration)…are applicable here. It is apparent that the
PRRA officer consulted relevant documentary extrinsic evidence found on the
internet, upon which the applicant was never given an opportunity to comment.
Such unilateral use of the internet is unfair…
. [citations
omitted]
I am satisfied that precisely the same
might be said here with the addition that not only was the web site information
consulted relevant and extrinsic evidence, it was also evidence that was
central to the Officer’s decision. In the result, barring a conclusion that
the result of a reconsideration of the Applicant’s PRRA application would
inevitably end in the same result here under review, by virtue of subparagraph
97(1)(b)(iv) of the Act, against a standard of review of correctness,
the decision under review must be set aside.
Inevitable Result –
Subparagraph 97(1)(b)(iv) of the Act
[14]
Less
than a week before the hearing of this application for judicial review, the
Federal Court of Appeal issued reasons addressing the interpretation of
subparagraph 97(1)(b)(iv) of the Act. In Covarrubias v. Canada (Minister of
Citizenship and Immigration), Justice
Linden, for the Court, wrote at paragraphs 31 and 32 of his reasons:
Having considered the
parties’ arguments and the limited authorities, I am of the view that the
provision in issue [subparagraph 97(1)(b)(iv) of the Act] is meant to be
broadly interpreted, so that only in rare cases would the onus on the
applicant be met. The applicant must establish, on the balance of probabilities,
not only that there is a personalized risk to his or her life, but that this
was not caused by the inability of his or her country to provide
adequate health care. Proof of a negative is required, that is, that the
country is not unable to furnish medical care that is adequate for this
applicant. This is no easy task and the language and the history of the
provision showed that it was not meant to be.
The ability of the
different countries of the world to provide adequate health care varies dramatically.
Some might contend that even countries such as Canada, the United
Kingdom and the United States, though financially able, are not providing
“adequate” health care to some of their people. These countries might respond
that they are “unable” to provide more care, given their other financial
obligations. Some might disagree and argue that these countries would, if they
altered their priorities, be able to provide more. Whether this reluctance to
provide more means that a country is unable to provide more is not a
task that Courts can easily assess, except in cases such as the denial of
health care on prosecutorial grounds or other similar bases. This will be a
difficult evidentiary hurdle to overcome.
[emphasis
added]
[15]
Justice
Linden continued at paragraph 39 of his reasons.
This is not to say that
the exclusion in subparagraph 97(1)(b)(iv) should be interpreted so broadly as
to exclude any claim in respect of health care. The wording of the
provision clearly leaves open the possibility of protection where an applicant
can show that he faces a personalized risk to life on account of his country’s
unjustified unwillingness to provide him with adequate medical care, where the
financial ability is present. For example, where a country makes a deliberate
attempt to persecute or discriminate against a person by deliberately
allocating insufficient resources for the treatment and care of that person’s
illness or disability, as has happened in some countries with patients
suffering from HIV/AIDS, that person may qualify under the section, for this
would be refusal to provide the care and not inability to do so. However,
the applicant would bear the onus of proving this fact.
[emphasis
added]
[16]
On
the facts of this matter, it is clear that the Applicant urged before the
Officer that Serbia and Montenegro would refuse to provide the care that he
receives in Canada, and that there was evidence that he will need to continue
to receive, whether or not Serbia and Montenegro have the ability to provide
such care. This issue is raised directly by the extrinsic evidence on which
the Officer has relied in reaching his or her decision and it is on this same
issue that the Applicant urges that he is in a position to provide, and would
have provided if given an opportunity, relevant and cogent evidence.
[17]
While,
as emphasized by Justice Linden, the burden that would be on the Applicant to
take his situation outside the ambit of subparagraph 97(1)(b)(iv) of the Act
would be a heavy one, Justice Linden acknowledges that it is not necessarily an
insurmountable burden. Put another way, I conclude that, if the decision under
review were set aside and the Applicant’s application were referred back for
reconsideration and re-determination, the result would not be inevitable.
CONCLUSION
[18]
Based
upon the foregoing analysis, at the close of the hearing of this application
for judicial review, I advised counsel that the application would be allowed,
that the decision under review would be set aside and that the Applicant’s
application would be referred back for reconsideration and re-determination, taking
into account these reasons. Given that information, when consulted on whether
this matter raises a serious question of general importance for certification,
both counsel answered in the negative. I am in agreement with counsel. This
matter turns on its very unique facts. No serious question of general
importance that would be determinative on an appeal from my decision herein arises.
“Frederick
E. Gibson”
Ottawa,
Ontario
November
27, 2006
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