Date: 20110621
Docket: IMM-3401-10
Citation: 2011 FC 741
Ottawa, Ontario, June 21,
2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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SWEE FATT KOK
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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
[1]
The
applicant is a citizen of Malaysia who suffers from a
heroin addiction and is currently receiving treatment in Canada through a
Methadone Replacement Therapy Program (“MRTP”). He came to Canada in September
1998. In April 2001, he was convicted of “possession of a break-in instrument”
and two counts of mischief under $5, 000. He was also convicted in 2003 of
theft under $5, 000. These convictions rendered him inadmissible to Canada pursuant to
paragraphs 36(1) (a) and 36(2) (a) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (“IRPA”) for serious criminality and criminality.
[2]
The
applicant made a refugee claim in October 2002. The claim was rejected on March
4, 2004 and he became subject to a removal order. The applicant received a
negative Pre-Removal Risk Assessment (“PRRA”) on November 28, 2005. He was
scheduled for deportation in October 2006 but removal has been repeatedly
deferred due to his methadone treatment.
[3]
In
January 2006, the applicant applied for permanent residence from within Canada on humanitarian
and compassionate (“H&C”) grounds. He claimed the required dosages of
methadone are not available if he were to return to Malaysia. Going back,
he said, would put him at risk of a relapse into a full blown addiction.
[4]
The
H&C application was denied in May 2010. The applicant was scheduled for
removal to Malaysia on Tuesday,
July 27, 2010. His removal was stayed on July 26, 2010 pending the determination
of his application for leave and for judicial review.
[5]
This
is an application for judicial review of the negative H&C decision. The
Officer found that the applicant’s hardship related to methadone availability
in Malaysia, level of establishment in Canada, ties to Malaysia and the best
interests of his child in Malaysia did not warrant an H&C exemption. The favourable
H&C factors were found to be outweighed by his criminality and financial
inadmissibility.
ISSUES:
[6]
The
sole issue is whether the officer’s decision was reasonable.
ANALYSIS:
Standard of
Review
[7]
An
exemption under subsection 25(1) of the IRPA is an exceptional and
discretionary remedy: Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358, at
paras. 15-17, leave to appeal to the SCC dismissed, [2002] S.C.C.A. No. 220; Hee
Lee v. Minister of Citizenship and Immigration, 2008 FC 368 at paras. 1-2; Garcia
De Leiva v. Canada (Minister of Citizenship and Immigration), 2010 FC 717
at para. 15.
[8]
Accordingly,
the trier of fact is afforded much deference in reaching a decision: Legault,
above, and Baker v. Canada (Minister v.
Citizenship and Immigration), [1999] 2 S.C.R. 817 at
para. 53. The standard of review is reasonableness. As stated in Dunsmuir v.
New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47, reasonableness is concerned mostly
with the existence of justification, transparency and intelligibility within
the decision-making process.
Was the
Officer’s decision reasonable?
[9]
The
applicant is a heroin addict who is stabilized on a methadone maintenance
program where he is monitored by a doctor and has a supportive network that is
assisting him to regain a normal life. Because of the existing controversy
surrounding methadone clinics and programs of this kind in Malaysia, the
applicant submits that to return to Malaysia would risk his relapse
into a full-blown addiction.
[10]
The
Doctor managing the applicant’s MRTP, Dr. Belluzzo, provided an opinion that
without the applicant’s current dose of approx. 110 mg of methadone per day,
his medical condition will become unstable and he will face the risk of
relapse. The applicant submits that the officer erred in not taking into
account Dr. Belluzzo’s opinion with respect to the amount of methadone needed
to maintain his drug treatment. That opinion was based on the applicant’s
self-reported symptoms of the effects of lower dosages.
[11]
In
Malaysia, methadone became
available for prescription treatment of addicts only in 2005 and quantities are
limited. The applicant submits that he may not be able to access methadone at
all or would not be able to receive the dose he needs. The applicant points to
documentary evidence in the record including a letter from a Doctor at the
Central Polyclinic in Kuala Lumpur to support this point.
[12]
Further
the applicant submits, the officer erred in noting that Dr. Belluzzo’s opinion indicates
that relapse is a concern, not a “certainty” or a “forgone conclusion”. The officer
is not a medical expert and has no grounds upon which to reject the opinion of
an expert who has been treating the applicant for years. Moreover, the test of
hardship is not whether it would be a certainty or a forgone conclusion but
rather, whether on a balance of probabilities, there is a serious risk of unusual,
undeserved or disproportionate hardship.
[13]
The
respondent’s position is that the officer reasonably gave a low probative value
to evidence suggesting that the availability of methadone in Malaysia is limited. The
officer reviewed all of the evidence and found the applicant had failed to
demonstrate that he would be unable to obtain treatment in Malaysia.
[14]
Contrary
to the applicant’s submissions, the officer did not reject Dr. Belluzzo’s
opinion with respect to the amount of methadone needed to maintain the
applicant’s treatment program. She noted and accepted that the applicant had
successfully weaned himself from 180 mg daily to between 100 and 110 mg daily.
It was with this information in mind that the officer assessed the remaining
evidence. This is particularly evident in reviewing the correspondence between
the Officer and the Health Management Branch and the Immigration Program
Officer at the Canadian Mission.
[15]
The
applicant suggests this correspondence demonstrates that the officer knew the
correct questions to ask and knew that she did not have sufficient information
to counter the applicant’s evidence that adequate doses for his maintenance
requirements are not available in Malaysia. In my view, the
correspondence shows the officer exercised due diligence in obtaining the
information she required in order to make a fair assessment of the issue before
her. The correspondence further confirms that methadone is in fact available in
dosages of 100+ mg in Malaysia.
[16]
For
example, the officer noted that information provided by the Malaysian Ministry
of Health indicated that several government hospitals and health clinics
provide methadone replacement therapy and that there was no specific dose range
outlined by the Ministry. The Ministry official stated that “in practice, the
dose is determined by a recognized health practioner […]”. Thus, the officer
inferred that the applicant would be able to receive his required dosage in
order to maintain his current methadone levels.
[17]
It
was open to the officer to accord low probative value to a statistic in an
article, “Clearing the Air over Methadone Therapy for Addicts” (May 09), which
indicated that addicts in Malaysia are only given 30-80 mg
of methadone. This statistic was second-hand and the source was not named in
the article.
[18]
The
officer reasonably found that the 2007 study of Malaysia’s first
methadone program did not indicate that doses are limited by availability. It indicated
that dosages were determined by each participant’s individual requirements. The
purpose of the study was to determine the average dose that users typically
require in the local population. The authors concluded that the maintenance
dose required was lower than that average.
[19]
It
was fair for the officer to give low probative value to the evidence from a Dr.
Shanmuganathan in Malaysia because it was from 2006. It was open to the officer
to find that the applicant had provided insufficient recent evidence to
substantiate his allegation that in present-day Malaysia, i.e. in
2010, he would be limited from obtaining that which he required given that the
program had only begun in 2005.
[20]
The
officer correctly noted statements made by an Australian physician but accorded
them little weight as there was insufficient evidence to corroborate the
statements, especially considering that the Ministry of Health provided
information as to the “several government hospitals and health clinics now
providing Methadone Replacement Therapy”. The source of the physician’s
information was unknown and there was no indication that he is an expert in the
field of Methadone maintenance.
[21]
In
my view, the officer did not impose a higher standard of proof on the applicant
when she noted that Dr. Belluzzo had expressed a concern rather than a
certainty or a foregone conclusion. The Doctor’s opinion was but one element of
the evidence before the officer and she was entitled to take into account the
fact that the doctor had characterized the risk of relapse as less than
definitive. Reading the decision as a whole, I am satisfied that the officer applied
the correct test with respect to hardship and came to a determination that was
open to her to make and that this Court should not disturb.
[22]
I
recognize that the applicant has made a serious effort to turn his life around
and to change the lifestyle as an addict which brought him in to conflict with
the law. I also note that the offences he committed are not at the higher range
of criminal misconduct. Nonetheless, his behaviour made him criminally
inadmissible to this country and the onus was upon him to demonstrate that the
discretion in s. 25 should be exercised in his favour.
[23]
The
thrust of the applicant’s argument is that the officer failed to properly
consider the evidence pointing to the limited availability of methadone in Malaysia. But, as the
respondent correctly put it, that is an argument essentially about the weight
of the evidence. It is not the function of the reviewing court to reweigh the
evidence: Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 61; Lupsa
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1054.
[24]
The
Court’s task is only to determine whether the decision falls within a wide
range of possible and acceptable outcomes: Dunsmuir, above, at para. 47.
While this Court may have come to a different conclusion as to whether an
exemption was justified on H&C grounds, decisions classified as
discretionary may only be reviewed on limited grounds: Baker,above, at
para. 53.
[25]
It
is clear from reading the decision that the officer considered all of the
evidence before her and her reasons are justified, transparent and intelligible.
She took into account all of the pertinent evidence, noted submissions by the
applicant’s counsel and conducted further research into whether the methadone
dosages required by the applicant would be available if the applicant were to
be returned to Malaysia. The decision thus falls within the range of
acceptable outcomes defensible on the facts and the law.
[26]
The
parties proposed no questions for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed. No
questions are certified.
“Richard
G. Mosley”
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