Date: 20100112
Docket: IMM-1639-09
Citation: 2010 FC 35
Ottawa,
Ontario, January 12, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
KOFI
AMPONG
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of the negative decision of the Applicant’s Pre-Removal Risk Assessment, dated February
17, 2009 (Decision), which refused the Applicant’s application to be deemed a
Convention refugee or person in need of protection under sections 96 and 97 of
the Act.
BACKGROUND
[2]
The
Applicant is a 27-year-old citizen of Ghana who obtained a visa to visit Canada. Once in Canada, he was issued a
Student Authorization which was valid until August of 2005. The Applicant did
not leave Canada at the end of this period. Rather, he worked without
authorization until September, 2007, when he came to the attention of the
immigration authorities. A removal order was issued in October, 2007.
[3]
The
Applicant was assaulted in September of 2007. As a result of this assault, he has
suffered a serious spinal cord injury. The Applicant is paralyzed in his lower
extremities and has only limited use of his upper extremities. He cannot stand
or walk and is also incontinent.
[4]
The
Applicant applied twice for permanent residence status and was rejected both
times. His first rejection occurred in January, 2005, when he applied under the
Skilled Worker program. His second rejection occurred in July, 2008, when he applied
on humanitarian and compassionate grounds.
DECISION UNDER REVIEW
[5]
The
Applicant’s PRRA claim was based on a high risk of death if he does not receive
the medical care he requires. He contends that he would not receive such care
in Ghana.
[6]
The
PRRA Officer (Officer) in this case considered all of the documents adduced by
the Applicant, including an RCMP report regarding the 2007 aggravated assault,
a letter from a doctor describing the extent of the Applicant’s injuries and his
resulting needs, as well as the Applicant’s personal documents.
[7]
In
his evidence, the doctor had noted that “the management of spinal cord injured
patients is a sub-specialized field which usually would not be present or
available in the healthcare system of a third world country.” The doctor
suggested that Ghana is likely considered a third world country with
regard to its health care system.
[8]
Furthermore,
the doctor determined that the Applicant would suffer a high level of risk if
returned to Ghana, and advised
that “it is likely that he will develop medical complications with a high
likelihood of serious illness and possible death.” However, the Officer found this
evidence to be of limited probative value since it was “somewhat speculative in
nature.”
[9]
The
Officer found that the Applicant did not provide “objectively identifiable
evidence to substantiate a finding Ghana is unable to provide
adequate medical care to its nationals.” Moreover, the Applicant had not proven
that Ghana “engages in
practices that are persecutory or discriminatory to the point of persecution –
with respect to the provision of access to medical treatment.”
[10]
While
the Officer accepted that the Applicant had a permanent and debilitating spinal
cord injury, he remained unconvinced that the Applicant was a person in need of
protection on the basis of his medical problems. Consequently, he found that
the Applicant would face the same risks as any other similarly-situated person
in Ghana, and concluded
that the Applicant did not face a risk to his life caused by the inability of Ghana to provide
the medical care he requires.
[11]
The
Officer determined that the Applicant’s risks were not among those described in
sections 96 and 97 of the Act. Furthermore, he concluded that the Applicant had
based his claim on “personal circumstances which are excluded from
consideration under subparagraph 97(1)(b).”
ISSUES
[12]
The
issues arising on this application can be summarized as follows:
1.
Whether
the Officer erred in determining that the Applicant would not be at risk upon
his return to Ghana pursuant to
sections 96 and 97 of the Act;
2.
Whether
the Officer erred in his assessment of the evidence;
STATUTORY PROVISIONS
[13]
The
following provisions of the Act are applicable in these proceedings:
Convention refugee
96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in need of protection
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.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
Définition de
« réfugié »
96. A qualité
de réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
STANDARD
OF REVIEW
[14]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, the Supreme
Court of Canada recognized that, although the reasonableness simpliciter and patent unreasonableness standards
are theoretically different, “the analytical problems that arise in trying to
apply the different standards undercut any conceptual usefulness created by the
inherently greater flexibility of having multiple standards of review” (Dunsmuir at paragraph 44). Consequently, the
Supreme Court of Canada held that the two reasonableness standards should be collapsed
into a single form of “reasonableness” review.
[15]
The
Supreme Court of Canada in Dunsmuir also held that
the standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to the particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
[16]
The
application of a legal test to the facts of a case is an issue of mixed fact
and law. In such instances, the appropriate standard of review is one of
reasonableness. See Dunsmuir, supra, at paragraph 164. Thus, the
Court will use a deferential standard when determining whether the Board erred
when it found that the Applicant would not be at risk upon his return to Ghana, pursuant to
sections 96 and 97 of the Act.
[17]
The
Officer’s assessment of evidence is also reviewable on a standard of
reasonableness. See Dunsmuir, supra at paragraph 51. Thus,
deference should be shown to the Officer in his assessment of the evidence and
the weight he accorded it.
[18]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
ARGUMENTS
The Applicant
Overlooking
expert evidence
[19]
The
Applicant submits that the Officer erred in finding the doctor’s evidence to be
“somewhat speculative.” The Applicant submits that the doctor is an expert who
determined that the Applicant was “likely to develop medical complications,”
and decided that there was a “high likelihood of serious illness and possible
death.” The Officer erred in assigning a lower probative value to this expert
evidence and in using his personal opinion to determine whether or not the
Applicant would face a risk to his life because of Ghana’s inability to provide
the medical care he requires.
Section
97(1)(b)(iv)
[20]
The
Act requires that “the risk is not caused by the inability of that country to
provide adequate health or medical care.” However, the Applicant contends that
his situation is distinguishable since his requirement for healthcare is
directly related to the assault he experienced in Canada by a Canadian. The
Applicant further contends that it is Canada’s responsibility to take care of its victims.
[21]
Moreover,
the Applicant says that the issue in this case is not just whether the
Applicant will receive the right treatment if deported; the issue is whether he
will get the appropriate treatment if he is removed from the country where he
suffered his injury, which is now unwilling to protect him in his vulnerable
position.
Sections 96
and 97
[22]
The
Applicant also contends that the Officer erred in determining that the risks
faced by the Applicant are not encompassed in sections 96 and 97 of the Act. The
Applicant faces a well-founded fear of persecution because of his disability.
In Ghana, the
disabled face discrimination, poverty and death.
[23]
In
the alternative, the Applicant submits that, according to Ozdemir v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1008, 256 F.T.R. 154, a
negative finding (in Ozdemir, one of credibility) in respect of section
96 is not necessarily dispositive of the section 97(1) claim.
[24]
Because
he is disabled, the Applicant says he is at risk of discrimination and poverty.
As a disabled person in Ghana, he will be unable to provide for himself
and obtain proper treatments. The Applicant maintains that he will be faced
with life-threatening situations as a result of being unable to provide for
himself. First of all, being unable to provide for himself will lead to
material deprivation and physical weakness. The Applicant submits that this
will lead to increased vulnerability, which will then lead to increased
poverty.
[25]
Finally,
the Applicant submits that the Court should allow the judicial review of the
Decision in order to respect the objectives of the Act, which includes at
section 3(2)(e) the following:
To establish fair and efficient
procedures that will maintain the integrity of the Canadian refugee protection
system, while upholding Canada’s respect for the human
rights and fundamental freedoms of all human beings.
The Respondent
Section 97 (1)(b)(iv)
[26]
The
Respondent submits that the Applicant’s claim is excluded by virtue of subparagraph
97(1)(b)(iv) of the Act, since it is premised on his medical condition
and his alleged inability to obtain proper medical treatment in Ghana. The Federal
Court of Appeal examined this subparagraph in Covarrubias v. Canada (Minister
of Citizenship and Immigration), 2006 FCA 365, [2007] 3 F.C.R. 169 at paragraph
41 and determined that 97(1)(b)(iv):
Excludes from protection persons whose
claims are based on evidence that their native country is unable to provide
adequate medical care, because it chooses in good faith, for legitimate
political and financial priority reasons, not to provide such care to its
nationals. If it can be proved that there is an illegitimate reason for denying
the care, however, such as prosecutorial reasons, that may suffice to avoid the
operation of the exclusion.
The
Applicant has alleged a risk that clearly falls under the ambit of this
subparagraph. As such, it cannot be the basis for a claim for protection in his
PRRA application. The Respondent contends further that a PRRA officer does not
have the authority to declare this subparagraph inoperable. See Covarrubias,
supra at paragraph 56.
[28]
The
Officer was bound by this subparagraph and was reasonable in his
acknowledgement of the limitations it imposed upon him. Further, the factors
raised by the Applicant for consideration are issues to be considered on an
H&C application. Such factors are not intended for consideration on a PRRA.
See Sherzady v. Canada (Minister of Citizenship
and Immigration), 2005 FC 516, 273 F.T.R. 11, at paragraphs 15-16. The
Applicant’s application cannot succeed on the basis of factors that are
excluded as grounds of protection, or are more appropriately suited to an
H&C application.
Evidence
properly assessed
[29]
The
Respondent submits that the decision with regard to the Applicant’s evidence
was based on the Officer’s consideration and weighing of the evidence. These tasks
fall squarely within the mandate and the discretion of the Officer.
[30]
The
Officer considered both the Applicant’s evidence and his medical condition, and
determined that he was not a person in need of protection. In so doing, the
Officer assessed the probative value, the weight, the relevancy and the
sufficiency of the evidence.
[31]
Although
the Applicant alleges that the Officer erred in his assessment of the medical
evidence, the Respondent submits that the Officer was correct in his examination.
Furthermore, the Officer’s finding that the evidence had a low probative value
because it was speculative in nature was open to the Officer to make. It is not
the Court’s role to reweigh the evidence and substitute its own decision for
that of the Officer.
[32]
The
Officer’s Decision was “within a range of possible, acceptable outcomes which
are defensible in respects of fact and law.”
ANALYSIS
[33]
It
is clear from the Officer’s Decision that he felt the Applicant had not
provided “objectively identifiable evidence to substantiate a finding Ghana is unable to
provide adequate medical care to its nationals.”
[34]
The
Officer finds the medical opinion provided by Dr. Milczarek on the issue of
medical care in Ghana to be “somewhat speculative in nature,” but Dr.
Milczarek points to the World Health Organization website and the problems
mentioned there for third world countries and concludes as follows on this
issue:
Therefore, if Mr. Ampong is deported Ghana (sic), it is likely that he will develop
medical complications with a high likelihood of serious illness and possible
death.
[35]
In
one sense, of course, this is “somewhat speculative,” in that no one knows for
certain that the Applicant will die. However, bearing in mind the burdens of proof
that the Applicant must satisfy under sections 96 and 97 I think it is
unreasonable for the Officer to reject this evidence as it is not speculative
for a qualified medical practitioner to conclude that, if the Applicant does
not receive treatment that meets his needs, the likely result will be serious
illness and death.
[36]
However,
the Applicant’s problems do not end here because the Officer also found, as an
alternative, that the risks faced by the Applicant are not encompassed by
sections 96 and 97 of the Act.
[37]
As
regards section 97, the Officer found that the Applicant is excluded because
the risks he says he faces are, at bottom, founded upon the inability of Ghana to provide
him with the medical services he needs. This is excluded by subsection 97(1)(b)(iv).
See Covarrubias, supra, at paragraph 41.
[38]
In
addition, the Officer obviously felt that section 96 persecution was not
available to the Applicant because “the information submitted does not support
a finding that Ghana engages in practices that are persecutory – or
discriminatory to the point of persecution – with respect to the provision of
access to medical treatment.”
[39]
It
is clear that the Officer’s conclusions regarding section 96 persecution and
section 97 risk were based upon the evidence placed before him by the
Applicant. If that were sufficient, then I believe the Applicant’s evidence
does not support a claim for section 96 persecution or section 97 risk.
[40]
However,
the Officer cannot confine himself in a PRRA application to the evidence submitted
by the Applicant but is required to conduct his/her own research. See Citizenship
and Immigration Canada, PP3 Pre-Removal Risk Assessment (PRRA) Operation
Manual at section 10.3 (PRRA Manual) and Hassaballa v. Canada (Minister of
Citizenship and Immigration), 2007 FC 489, [2007] F.C.J. No. 658 at
paragraph 33. In fact, the Decision shows that the Officer consulted no further
sources before reaching his Decision.
[41]
Had
the Officer conducted his own research as required by the PRRA Manual and Hassaballa,
he might have found, for example, the 2007 Survey on Health in Ghana
which states that “people with disability in Ghana, and in most parts of Africa
face multiple discrimination, from the home, the community and society at large
and in terms of allocation of resources and opportunities.”
[42]
Multiple
discrimination may give rise to persecution under section 96 of the Act. Indeed,
in Ramirez v. Canada (Minister of Citizenship and Immigration), 2008 FC
466, [2008] F.C.J. No. 1028 it was determined that the consideration of
cumulative effects is important in a decision on persecution. In Ramirez,
the RPD erred by only considering the availability of medical care, rather than
considering the cumulative effects of the discrimination in the delivery of
health care and the discrimination that existed in seeking employment.
[43]
The 2007 Survey on
Health in Ghana says that persons with a disability are
estimated to make up approximately 10% of the population of Ghana. As a result, it is certainly possible that the
Applicant may belong to a particular social group in Ghana which is
discriminated against to the point of persecution, either based on
discrimination in the delivery of health care, or the cumulative effects of
other sorts of discrimination, including “multiple discrimination, from the
home, the community and society at large and in terms of allocation of
resources and opportunities.” See the 2007 Survey on Health in Ghana.
[44]
The Respondent has
argued that the Applicant’s PRRA application was based on Ghana’s inability to provide him with proper medical care,
and that it would be unreasonable to impose a duty on the Officer to research
and consult additional sources of information on risks that are not raised by
the Applicant. The Respondent contends that this would have the unacceptable
effect of removing the onus from the Applicant to state the risks alleged in
the claim.
[45]
I remain unconvinced by
the Respondent’s argument for one simple reason: the Officer clearly
contemplated the existence of such discrimination in Ghana
within his reasons. As written by the Officer, “the information submitted does
not support a finding that Ghana engages in practices that are persecutory
- or discriminatory to the point of persecution – with respect to the provision
of access to medical treatment.” Within this statement, the Officer clearly
recognized the possibility of discrimination in the delivery of health care
amounting to persecution. However, the Officer dismissed this in finding that
the information submitted did not support such a finding. The Officer erred by
neglecting to conduct research on what he acknowledged was a potentially
determinative issue.
[46]
As noted by the
Officer, discrimination in the delivery of health care may constitute
persecution. See, for example, Diaz v. Canada (Minister of Public Safety),
2008 FC 1243, 336 F.T.R. 259. As stated in paragraph 35 of Diaz,
“inadequate health care in itself is not a foundation for a claim (if it is
delivered in a non-discriminatory manner).” The corollary of this finding is
that healthcare delivered in a discriminatory manner can be a foundation for a
PRRA claim. Indeed, the Immigration and Refugee Board’s Consolidated Grounds
in the Immigration and Refugee Protection Act provides in section 3.1.9. as
follows:
The inability of
a country to provide adequate health or medical care generally can be
distinguished from those situations where adequate health or medical care is
provided to some individuals but not others. The individuals who are denied
treatment may be able to establish a claim under section 97(1)(b) because in
their case, their risk arises from the country’s unwillingness to provide them
with adequate care. These types of situations may also succeed under the
refugee ground if the risk is associated with on of the Convention reasons.
Thus, the Officer erred by dismissing this
facet of the claim without performing the adequate research to satisfy himself
that the claim should not be allowed on this basis.
[47]
According to Covarrubias,
supra, at paragraph 41, section 97(1)(b)(iv):
excludes those
whose claims are based on evidence that their native country is unable to
provide adequate medical care, because it chooses in good faith, for legitimate
political and financial priority reasons, not to provide such care.
[48]
However, if an
illegitimate reason can be found for denying such care, for example,
persecutorial reasons, then the exclusion may not apply. See Covarrubias at
paragraph 41. The result of this is that, according to Covarrubias at
paragraph 39:
The wording of section
97(1)(b)(iv) clearly leaves open the possibility for 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.
[49]
The Officer’s Decision cannot be
considered reasonable when he neglected to consider whether the Applicant’s
PRRA application is exempted from the exclusion found in 97(1)(b)(iv).
Moreover, the Officer erred in failing to conduct his own research to determine
the possible cumulative effects of discrimination the Applicant may face upon
his return to Ghana.
[50]
I think the Decision is
unreasonable and must be returned for reconsideration.
[51]
Counsel are requested to serve and
file any submissions with respect to certification of a question of general
importance within seven days of receipt of these Reasons for Judgment. Each
party will have a further period of three days to serve and file any reply to
the submission of the opposite party Following that, a Judgment will be
issued.
“James
Russell”