Date:
20121210
Docket:
IMM-2600-12
Citation:
2012 FC 1457
Ottawa, Ontario,
December 10, 2012
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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ALEXEY AVERIN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
In
2007, Mr Alexey Averin arrived in Canada from Ukraine as a visitor. He applied
unsuccessfully for refugee status.
[2]
After
his refugee claim was turned down, Mr Averin experienced a series of
unfortunate events. He was involved in two car accidents leaving him with
physical limitations and mental health issues. His physicians have diagnosed
him with major depression, post-traumatic stress disorder, and a severe phobia
of being in a car. He requires many different medications. He relies on social
assistance and his family members in Canada.
[3]
In
November 2011 Mr Averin attempted to hang himself. His neighbours saved him.
While in hospital, with his mother’s help, Mr Averin applied for a pre-removal
risk assessment (PRRA). He alleged that he would not be able to obtain or
afford proper medical treatment in Ukraine, and that there was a “grave
situation regarding the treatment of mentally ill patients” there. With his
application, he filed his medical records and documentary evidence about the
availability of mental health care in Ukraine.
[4]
The
PRRA officer regarded Mr Averin’s application as based solely on a concern
about receiving adequate health care in Ukraine, which is not a proper basis
for a PRRA application. Subparagraph 97(1)(b)(iv) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] specifically states that a
person can receive protection in Canada against a risk of cruel and unusual
treatment or punishment, but not where that risk is “caused by the inability of
that country to provide adequate health or medical care” (see Annex).
Accordingly, the officer dismissed Mr Averin’s application.
[5]
Mr
Averin argues that the officer failed to appreciate that his application was
not based only on the inadequacy of medical care for mentally ill patients in Ukraine. He also expressed concern about the treatment of persons experiencing mental
health challenges more generally. Mr Averin contends that the officer’s
decision was unreasonable because it failed to address that concern and to
consider the documentary evidence supporting it. He asks me to quash the
officer’s decision and order another officer to reconsider his application.
[6]
I
agree that the officer’s decision was unreasonable and must, therefore, allow
this application for judicial review. Given my conclusion on that issue, I need
not deal with Mr Averin’s argument that the officer erred in other respects.
II. The Legal Framework
[7]
As
mentioned, a PRRA application cannot be based on a claim that the applicant’s
country of origin is unable to provide adequate medical care. The Federal Court
of Appeal has described this as a broad limitation: Covarrubias v Canada (Minister of Citizenship and Immigration), 2006 FCA 365, at para 31. However,
it also recognized that some claims of cruel and unusual treatment or
punishment based on the availability of medical care may fall within s 97. Where
an applicant can show on the balance of probabilities that “there is an
illegitimate reason for denying [health or medical] care, such as prosecutorial
reasons, that may suffice to avoid the operation of this exclusion” (at para
41). For example, where a state refuses to provide medical care to persons with
HIV/AIDS, an applicant may have a valid claim for protection (at para 39).
However, these cases will be “rare” (at para 31).
[8]
It
is clear that applicants who argue that they simply cannot afford to access
medical care in their countries of origin will fail. Applicants must show that
their application falls within the narrow range of medically-based claims that
fall outside the broad exclusionary clause in s 97(1)(b)(iv).
III. Was the officer’s
decision unreasonable?
[9]
Mr
Averin clearly raised the issue whether he would be able to afford to buy
medication and access mental health treatment in Ukraine. It is equally clear
that his PRRA application could not succeed on that basis.
[10]
However,
that is not the only issue he put forward. He expressed concern about the harsh
treatment of the mentally ill in Ukraine. He backed up that concern with
documentary evidence showing that inhumane treatment of the mentally ill in
psychiatric hospitals is common. Patients are frequently abused. While the
officer observed that Ukraine has laws prohibiting discrimination against
people with mental disabilities, he failed to note that those laws are not
enforced.
[11]
In
my view, Mr Averin’s submissions and supporting documents provided a sufficient
basis for considering whether his was one of those rare cases where an
applicant could succeed on a PRRA application notwithstanding that it was based
on a concern about medical care. Obviously, discriminatory treatment and
abusive conduct cannot be considered legitimate reasons for Ukraine’s inability to provide adequate medical care to the mentally ill. The officer
simply did not consider the evidence on that issue.
[12]
Given
that failure, I must conclude that the officer’s decision was unreasonable. It
did not represent a defensible outcome based on the documentary evidence before
the officer that supported Mr Averin’s application and the state of the law on
s 97(1)(b)(iv).
IV. Conclusion and
Disposition
[13]
The
officer failed to consider whether Mr Averin’s PRRA application fell within s
97, notwithstanding that it was based on a concern about the treatment of the
mentally ill in Ukraine. Therefore, his decision that Mr Averin’s application
fell within the exclusionary rule in 97(1)(b)(iv) was unreasonable. I
must allow this application for judicial review and order another officer to
reconsider Mr Averin’s application.
[14]
The
parties requested an opportunity to provide submissions regarding a certified
question of general importance. I will consider any submissions filed within 10
days of the issuance of this judgment.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed. The matter is referred back to
another officer for reconsideration.
2.
The
Court will consider any submissions regarding a certified question that are
filed within ten (10) days of the issuance of these reasons.
“James W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act SC 2001, c 27
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
…
(b) to a risk to their
life or to a risk of cruel and unusual treatment or punishment if
…
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
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 :
[…]
b) soit à une menace à
sa vie ou au risque de traitements ou peines cruels et inusités dans le cas
suivant :
[…]
(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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