Mendez v. Canada (Minister of Citizenship and Immigration), 2005 FC 111

Date: 20050124

Docket: IMM-4420-04

Neutral citation: 2005 FC 111

Ottawa, Ontario, Monday, the 24^st day of January, 2005

Present:           The Honourable Mr. Justice Campbell

BETWEEN:

                                                         Jose Luis Garcia Mendez

                                                                                                                                      APPLICANT

                                                                           and

                                         The Minister of Citizenship and Immigration

                                                                                                                                 RESPONDENT

                                            REASONS FOR ORDER AND ORDER

[1]                In the present application, the Applicant challenges the April 28, 2004 decision of a Pre-Removal Risk Assessment ("PRRA") Officer who found he would not be at risk by returning to Mexico as a homosexual male.

[2]                In his PRRA application, the Applicant asserted two fears of returning to Mexico: not being able to access the medications he needs to survive; and, not receiving the medical care that would allow him to survive, due to the discrimination he would experience as a homosexual, even if he had access to medical treatment in Mexico.

[3]                The central focus of the challenge is the PRRA Officer's refusal to admit evidence tendered by the Applicant which was generated from the case of a similarly situated individual who had been successful in making a refugee claim. The legislation under which the refusal was made is s.113(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").

[4]                Section 113(a) of IRPA provides a PRRA Officer with discretion to limit the admission of evidence; it is agreed that the provision applies to both s.96 and s.97 or IRPA:

[5]                The Applicant argues that, first, not only did the PRRA Officer make a reviewable error in the refusal finding itself, but, second, s.113(a) of the IRPA offends his s.7 rights under the Charter. For the reasons which follow, I agree with the Applicant on the first argument, and, as a result, find it is unnecessary to decide on the second.

A. The Refugee Board's decision

[6]                Since the exercise of the PRRA Officer's discretion depends on the findings of the Refugee Protection Division of the Immigration and Refugee Board (the "Refugee Board") in a given case, in the present case it is important to first describe the Refugee Board's decision, and then to analyse the PRRA Officer's decision.

[7]                The Applicant is a citizen of Mexico who arrived in Canada in October, 2002. The Applicant made a refugee claim within two weeks of his arrival and, during the course of a medical exam required in relation to his application, was diagnosed for the first time as HIV positive. On April 29, 2003 the Refugee Board heard and rejected the Applicant's claim for refugee protection as an HIV positive homosexual male in Mexico. When he first applied, the Applicant focussed his claim on job related discrimination stemming from his homosexuality. It was only at the hearing before the Refugee Board that he advanced his claim for refugee protection as an HIV positive homosexual male in Mexico.

[8]                In its decision, the Refugee Board made negative findings on credibility as follows:

[...] the panel found that much of the claimant's evidence in support of his claim was not credible or trustworthy. There were numerous internal contradictions, inconsistencies, evasions and implausibility, along with a lack of "rational and common sense" concerning aspects of his evidence.

[...]

As well, the panel does not believe that the claimant's alleged sexual orientation played any part in his problems or his decision to leave Mexico.

In fact, his evidence is so lacking in credibility about his problems in the past that the panel does not even accept as credible that he is a male homosexual. The only evidence that is credible is that he has now been diagnosed in Canada as HIV positive. That diagnosis, in and of itself, does not indicate a particular sexual orientation.

(Refugee Board Decision Tribunal Record, pages 435 and 441)

[9]                However, despite the negative credibility findings, the Refugee Board proceeded to analyse whether the claimant would receive "proper" treatment and drugs for his HIV condition were he to return to Mexico. The Refugee Board found that, on the evidence of in-country conditions in Mexico, he would not be at risk on medical grounds, and that, in any case, s.97(1)(b)(iv) of IRPA precludes a successful protection claim for failure of Mexico to provide health or medical care. In the end result, the claimant was found not to be a refugee nor a person in need of protection.

[10]            For the purposes of the present application challenging the PRRA decision related to the Refugee Board's decision, I find that the following statement of the Refugee Board is of critical importance:

The documents do not indicate that any of these government programs, in particular in the DF [Federal District], discriminate in the provision of health care against any particular social group suffering from HIV/AIDS, such as male homosexuals.

(Refugee Board Decision Tribunal Record, p.442)

[11]            The Refugee Board's decision was not challenged on judicial review.

B. The PRRA decision

[12]            As a result of his failed refugee protection claim, the Applicant applied for a PRRA in February 2004, and also made a humanitarian and compassionate application in March 2004. Only the PRRA application and decision is in issue in the present application since the negative humanitarian and compassionate decision rendered did not pass the leave stage on judicial review.

[13]            From the Applicant's perspective, two important pieces of new evidence were required to be considered by the PRRA Officer: the fact that, in May 2003, he entered into a gay relationship with a Canadian citizen, which resulted in a marriage on February 15, 2004; and the evidence generated for, and from, the successful refugee claim of his friend, Mr. Sergio Luis Pineda Flores, who based his claim on the same factors as did the Applicant ("the Flores evidence"). This evidence was tendered as part of an evidentiary package submitted, and an argument made, to the PRRA Officer that, contrary to the Refugee Board's finding quoted above, there is proof of discrimination by health care professionals in Mexico towards male HIV homosexuals. As a result, the Applicant advanced this rectification argument to the PRRA Officer for a positive finding of risk and, thus, a determination that his claim is not precluded by s.97(1)(b)(iv) of IRPA.

[14]            The Flores evidence produced before the PRRA Officer is composed of three distinct parts: some documentary evidence produced before the Refugee Board in support of Mr. Flores' claim (Applicant's Application Record (AAR), pp.66-80); the Refugee Board's decision of January 3, 2002 (AAR, pp.59-62); and a letter signed by Mr. Flores, dated March 17, 2004, setting out his evidence of the discrimination which exists in Mexico by health care professionals (AAR, pp.64-65). As mentioned, the principal effort being made in the production of this "new evidence" to the PRRA Officer was to rectify the Refugee Board's conclusion that there was no evidence before it that health care professionals in Mexico discriminate against homosexual males who suffer from HIV/AIDS.

[15]            During the course of oral argument, Counsel for the Respondent agreed that, in a PRRA proceeding, it is open to an applicant to attempt to rectify a Refugee Board finding, if the evidence intended to do so can qualify as "new evidence" under s.113(a) of IRPA.

[16]            Thus, in order to have the "new evidence" admitted, the Applicant was required to comply with s.113(a) of IRPA. In applying s.113(a), the PRRA Officer refused to admit the evidence for the following reasons:

I now turn to the documents pertaining to Sergio Luis Pineda Flores - his personal statement, his RPD decision dated 03 Dec 2002 and documents that were provided in support of Mr. Flores' claim for refugee protection. I do not find these documents constitute as new evidence as these documents, specifically the documents that supported the claim, also pre-date the applicant's RPD decision. Furthermore, I note that this decision, which pre-dates the RPD's decision, was based on Mr. Flores' personal situation and experience. I find that it is the applicant's speculation that he feels he would be similarly treated as Mr. Flores' [sic] was in Mexico. I note that the applicant became aware of his medical condition after his arrival to Canada and is alleging risk based on the general knowledge of mistreatment of homosexuals in Mexico and a specific individual's personal experiences. I note although the applicant initially stated in his PIF that he is a homosexual and suffered discrimination at school and in the workplace, he stated that he did not suffer physically because of his sexual orientation and his initial claim for refugee protection was not based on his sexual orientation rather it was based on problems he experienced with his employer for not offering permanent employment and problems he experienced with his union representative. I also note that the applicant has a bachelor's degree, speaks several languages (Spanish, Japanese, English and French), was employed and the times he was unemployed the applicant was either studying or travelling abroad.

I have also reviewed the documents pertaining to the applicant's current medical condition and medical treatment. I note that the applicant's medical condition was accepted by the RPD and therefore find these documents do not constitute as new evidence. I note the applicant is a participant for experimental HIV/AIDs treatment therapies for the BC Centre for Excellence in HIV/Aids. The Centre has established this program to provide eligible individuals in the province with selected HIV/AIDs therapies at no cost and their physicians with HIV/AIDs-related treatment and patient management information. As such the applicant has not been charged for the study drugs or any research procedures. According to the applicant's statutory declaration, he states he is at risk because he would not get health insurance, two of the treatments (Tenofovir - an experimental drug and TDM test - a monthly blood test) which he believes are not available in Mexico and medications are given for a shorter period of time than the doctor prescribes. I note the RPD considered the argument of availability of medical care and also made reference to A97(1)(b)(iv) which states:

97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally

(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or

(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if

(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,

(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,

(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and

(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.

I find these allegations are related to the availability and adequacy of medical care in Mexico and therefore cannot be reviewed under these applicable provisions of IRPA.

As I have found counsel's submissions do not constitute as new evidence as per A 113(a), I have considered general country conditions to see if there has been a significant change since the RPD's decision that would require the applicant to be [in] need [...] [of] protection. In a current review and consideration of the country conditions from publicly available documents and documents submitted, I find that the overall country conditions of Mexico have not significantly changed since the RPD's decision last 21 Nov 2003.

It would appear that protection is available towards sexual minorities if the applicant were to experience harassment and discrimination upon his return to Mexico.

[Emphasis added]

(PRRA Decision, pp.3-4)

[17]            As I expressed during the hearing of the present application, in my opinion, the PRRA Officer made an error in the application of s.113(a) with regard to the letter signed by Mr. Flores. Section 113(a) requires a careful determination on the admissibility of evidence on three available grounds. In my opinion, precision is required in making a finding under this provision since important ramifications follow on the determination of the risk to be experienced by an individual applicant. In my opinion, the PRRA Officer failed to meet this expectation.

[18]            Mr. Flores' letter of March 17, 2004 clearly post-dates the Refugee Board's decision in the present case. It appears that the PRRA Officer failed to understand this fact by lumping it in with the tendered evidence which pre-dates the Refugee Board's decision. I find that, as a result of this mistake, the PRRA Officer failed to understand, and consequently reach a clear decision on, the Applicant's rectification argument of risk. Mr. Flores' letter provides cogent evidence in support of this argument as follows:

In Mexico the intolerance and the exclusion condemned to me twice, first being homosexual like a deviation and second being carrying of HIV/Aids.

The problem in the systems of health in Mexico is the homophobic atmosphere, the person feels by ricochet uncertain by the attitudes, and must hide himself, and protect himself.

The rejection and the indifference that I experienced during my five years showed doctors and authorities of Centro Medico Siglo XXI (IMSS) cause an irreparable damage to my physical and emotional health, denying the possibility to me of reaching a greater amount and quality of life.

During all those years I untiringly fought against the discrimination and the rejection that unjustly occurred to me in the institutes to homosexual and carrying health for being HIV positive. I asked to the authorities its aid and protection, demanding a worthy treatment and an equitable access in the services of health, but my request was never taken care of, the opposite happened day to day with my right to the life, and my right to the health violated daily.

With the mistreated dignity request to doctors and authorities attention and that they not deny and hide my medicine to me, because irreversible damages to my health were being caused to me, with the risk of being able to contract some opportunistic diseases; such as tuberculosis, cancer or to create resistance to the treatment.

Humiliated and hurt before as much indifference I went time and time again to the social workers, the administrative assistant director of the pharmacy, to the head of the internal medicine division, to the assistant director of specialties, to the administrative financial division and finally I went to the Director of the Mexican Institute of the Social Insurance informing him that in repeated occasions my medicine was refused and hidden from me, in addition I indicated to him that my right to health care and prescriptions for HIV/Aids was being violated, but unfortunately the authorities did not follow the law.

Finally and with the only hope that gave the love to my life I decided to request aid to the offices of human rights where I was not listened to either. With my heart in my hand I had to leave Mexico otherwise I would not be writing these lines because honestly I would be dead.

Today I have understood that the hope has many colors and endless of places and possibilities. Little by little I have been recovering the true value of the man: "life."

The Government of Canada must deeply consider the request of Mr. Jose Luis Garcia Mendez. If he returns to Mexico he will be a victim of discrimination and the rejection that day to day is reflected in the Mexican society. Being a victim of the Mexican Health Care system, I have had first hand experienced of little to no access to the required HIV/Aids treatment. If he returns to Mexico I fear that he will die.

Sincerely,

Sergio Pineda

[19]            In support of acceptance of the Flores evidence in the PRRA application, of which the letter is a part, the following argument was made by the Applicant's counsel on that application:

The package of articles and decision for Sergio Pineda are indicative of the kind of difficulties HIV positive Mexican male homosexuals have in Mexico. Mr. Pineda struggled for years to obtain proper treatment and even went so far as to complain to the Human Rights Commission about discrimination and denial of treatments. He finally came to Canada where he was accepted on the date of his refugee hearing in Vancouver on December 3, 2002. I have enclosed a copy of his decision, a letter from Mr. Pineda, and some of the documented evidence used at his hearing. This decision, File VA2-01360, is significant because the panel member found that his problems in Mexico established a nexus to the definition of Convention refugee.

(Tribunal Record, pp. 217-218)

[20]            Oddly, even though the package of articles to which Counsel refers was ruled not to be admissible on a separate decision rendered by the PRRA Officer under s.113(a), but not in issue in the present application, the PRRA Officer, nevertheless, referred to four of the seven articles in reaching the PRRA decision. The following passage was quoted from the report "Mexico: Update on Treatment of Homosexuals, May 2002" (AAR, pp.142-178) respecting HIV health care in Mexico:

For individuals who are receiving advanced HIV treatment in the United States to be returned to Mexico in such circumstances is likely to be an indirect death sentence, unless the particular individuals or their families have the financial resources to pay for private care.

(PRRA Decision, p.7)

It is interesting to note that the very next passage in the report was not quoted, which speaks to the evidence of discrimination by health care professionals in Mexico, and, thus, to the Applicant's argument that there is a nexus of that evidence to a Convention ground:

In addition, Mexican society remains highly prejudiced against homosexuals who are HIV-positive. As was the case in the United States several years ago, AIDS continues to be identified as a gay disease. An association is commonly made between homosexuality, AIDS, and death. Misconceptions about how the disease is spread give rise to fear, which, in tandem with deeply-ingrained homophobia, give rise to discrimination-as in the case of employment described above. Similar attitudes result in discrimination in medical care by health professionals who are not properly informed about the risks of HIV transmittal. They also result in ostracism and harassment by the communities in which HIV positive individuals live.

(AAR, p.177)

C. Conclusion on the PRRA challenge

[21]            It is agreed that the standard of review of findings of fact is patent unreasonableness. I find that the mistake of the PRRA Officer with respect to the date of the Flores letter is a patently unreasonable finding of fact, and, thus, constitutes a reviewable error. Given the failure of the PRRA Officer to properly consider the admissibility of the Applicant's evidence of risk as described, and the important implications for him should he return to Mexico without such a proper consideration, I find the PRRA Officer's decision to be so deficient as to be patently unreasonable.

D. The Charter challenge

[22]            The Applicant's challenge to the constitutional validity of s.113(a) is made as an alternative argument to the challenge to the substance of the PRRA Officer's decision. Since I have found in favour of the Applicant on the substantive challenge, I see no purpose in deciding on the alternative argument.

[23]            During the course of oral argument, Counsel for the Respondent agreed that, if the decision on the present application turns on an error of fact, no certified question arises; since I have found that it does, I find there is no question to certify.

                                               ORDER

Accordingly, I set aside the PRRA Officer's decision, and refer the matter back to a different PRRA officer for redetermination.

"Douglas R. Campbell"

                                                                                                         J.F.C

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:IMM-4420-04

STYLE OF CAUSE:Jose Luis Garcia Mendez v. MCI

PLACE OF HEARING:Vancouver, B.C.

DATE OF HEARING:January 21, 2005

REASONS FOR : Campbell, J

DATED:January 24, 2005

APPEARANCES:

Mr. Bediako BuaheneFOR APPLICANT

Mr. Keith ReimberFOR RESPONDENT

SOLICITORS OF RECORD:

Mr. Bediako BuaheneFOR APPLICANT

Barrister & Solicitor

Mr. John H. Sims, Q.C.FOR RESPONDENT

Deputy Attorney General for Canada

Department of Justice - Vancouver