Date: 20111122
Dockets: IMM-840-11
IMM-841-11
Citation: 2011 FC 1331
Ottawa, Ontario, November 22, 2011
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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OSAMEDE OGBEBOR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant is a citizen from Nigeria and seeks to have two
decisions judicially reviewed. Both decisions were made by the same Pre-Removal
Risk Assessment Officer on January 7, 2011.
[2]
In
his first decision, the Officer rejected the applicant’s Pre-Removal Risk
Assessment (PRRA) application after concluding that neither a risk of
persecution under section 96 of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA) nor a danger of torture, a threat to life, nor a risk of
cruel and unusual treatment or punishment under section 97 of the IRPA had been
established. Court file IMM-840-11 relates to this decision.
[3]
In
the second decision, the Officer denied the applicant’s request under
subsection 25(1) of the IRPA to have his application for permanent residence
processed from within Canada on Humanitarian and Compassionate
(H&C) grounds. Court file IMM-841-11 relates to this decision.
[4]
Both
applications for judicial review were heard together. These reasons will thus
address both applications and a copy will be placed in each of the Court’s
file.
[5]
At
this stage, the Court notes that the applicant submitted that the respondent
filed an affidavit. However, it remains unclear whether all of the evidence it
attempted to enter into the record before this Court was before the decision
maker.
[6]
The
Court also recalls that both parties at the hearing agreed that this case was
not about clean hands. The respondent further emphasized that the case turned
around a credibility issue. With that in mind, the Court will now turn to the
decisions under review.
Decisions under Review
[7]
In
his PRRA decision, the Officer considered the three grounds of risk outlined by
the applicant: 1) that of being a homosexual in Nigeria; 2) that of
being an HIV positive individual in Nigeria; 3) that of the threat of the ROF
in Nigeria.
[8]
In
the present case, the applicant has only chosen to challenge the PRRA Officer’s
conclusions with respect to his status as an HIV positive individual. The
applicant confirmed during the hearing that he does not dispute the Officer’s
findings with respect to his homosexuality and the threat of the Reform Ogboni
Fraternity (ROF) in Nigeria.
[9]
The
applicant has thus solely elected to address the findings concerning HIV. The
Court, however, remains cognizant of the PRRA Officer’s findings on the issues
of homosexuality and the ROF.
[10]
On the issue of the risk of being an HIV positive individual in
Nigeria, the Officer stated that he believed that the applicant was credible
with regard to the fact that he was indeed HIV positive. The Officer concluded
that the applicant’s submission of medical letters and documents succeeded in
establishing that he is HIV positive. The Officer also acknowledged that the
applicant is currently being monitored although he was not showing symptoms of
the disease.
[11]
The
PRRA Officer found that the applicant did not show that there was more than a
mere possibility of being denied health services or being persecuted due to
being HIV positive in Nigeria or that he would be subject to torture or serious
mistreatment for being HIV positive. As a result, the PRRA Officer concluded
that the “general and economic limits of Nigeria to provide healthcare for the
applicant is not a factor that can be considered with regard to the application
of A97 and the limitation of access to healthcare due to being HIV+”
(Applicant’s record at p. 92).
[12]
The
Officer concluded that the applicant had not sufficiently demonstrated that
there are substantial grounds to believe that he would be exposed to a risk of
being tortured, a risk to his life, or a risk of being subjected to cruel and
unusual treatment or punishment if he returned to Nigeria.
[13]
In
his H&C decision, the Officer concluded that the level of establishment of
the applicant, his family and community relations and his work would not result
in a disproportionate hardship if the applicant would to leave Canada permanently.
At hearing before the Court, the level of establishment was not directly
challenged by the respondent.
Issue
[14]
The Court is of the opinion that
the issue in the present case is as follows:
Did the Officer err in his
assessment of the risk concerning the applicant’s status as an HIV positive
individual in Nigeria?
Standard
of Review
[15]
While
the applicant submits that there are two applicable standards of review as he
alleges that the Officer erred in both law and fact, this Court is of the
opinion that the heart of the matter is the PRRA Officer’s evaluation of the
evidence, which is reviewable on the standard of reasonableness. Pursuant to
the Supreme Court of Canada’s decision in Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, findings of fact made by an
administrative tribunal are reviewable on the standard of reasonableness (see
also Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339; Martinez
v Canada (Minister of Citizenship and Immigration), 2010 FC 31, [2010] FCJ
No 41). Consequently, deference is owed to the evaluation conducted by
the PRRA Officer and the decision will only be set aside if it falls outside of
the range of possible acceptable outcomes which are defensible in respect of
the facts and the law (Dunsmuir).
Analysis
[16]
On
the basis of the evidence and the parties’ submissions, the Court finds that
the Officer’s evaluation of the risks for an HIV positive individual living in Nigeria was
unreasonable.
[17]
Although the Court agrees with the respondent
that PRRA Officers are not required to engage in an analysis of a
foreign state’s medical system and make conclusions about the fiscal capacity
and the political priorities of the state (Covarrubias
v Canada (Minister of Citizenship and Immigration), 2006
FCA 365, [2007] 3 FCR 169), in this case, the Officer was obliged to
address documentary evidence before it that dealt with the risk of having an
HIV individual like the applicant return to Nigeria. In failing to address
relevant evidence to the case at bar, the Officer was selective in his use of
the evidence.
[18]
More
particularly, the Officer relied extensively on the NGA102418.E document in his
decision. In addressing the issue of access to healthcare for an individual
with HIV, the Officer focused on the fact that the major barrier to treatment
was the cost of travel from the countryside to cities. The Officer indicated
that the applicant has lived in major cities in Nigeria (Lagos and Benin) and would
therefore not have to travel in order to receive treatment. However, the US
Department of State Country Report on Nigeria’s Human Rights also states the
following: (i) there is severe discrimination by health care providers and of
the general population; (ii) individuals with HIV can be denied medical care or
refused admittance to hospital and confidential medical data can be disclosed
without patient consent; (iii) HIV individuals often lose their jobs, which in
turn, has an impact on the cost and access to treatment.
[19]
The
costs associated with travelling to HIV/AIDS treatment centers are therefore
not the only barrier. It amounts to one barrier amongst others. Indeed, the
cost of travel cannot be the sole barrier for individuals with HIV already
living in the city.
[20]
At
the very least, the Officer was required to discuss and temper his evidence in
light of these findings. If failing to do so, the Officer committed an error.
[21]
The
Officer also found that the applicant is currently asymptomatic and thus would
not face discrimination. The PRRA Officer noted that according to a letter
drafted by the applicant’s doctor, Dr. Marina Klein, due to the fact that the
applicant does not currently display symptoms of the disease, the applicant
would not develop any HIV related illness if he would continue to take
antiretroviral medication. The Officer found that “this would mean that taking
this medication when needed would result in the applicant not being outwardly
or in any physical way identifiable as a person with HIV” (Applicant’s Record
at p. 91).
[22]
Again,
as mentioned above, the evidence indicates that a number of factors can affect
the ability for an individual with HIV to receive treatment. For instance, in
the letter drafted by Dr. Klein, she explains that the key factor which helps
the applicant remain asymptomatic is regular and consistent treatment
(Applicant’s Record at p. 46). The Officer should have discussed these factors (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration Canada), [1998] FCJ No 1425). While it might have been an
option for the Officer not to give much weight to these factors in light of the
overall evidence, the Court considers that it was not open to the Officer, in
the case at bar, to ignore this evidence. In doing so, the Board
also limited his analysis to the present rather than conducting a present and prospective
risk assessment.
[23]
Moreover,
in discussing whether family members can pay for the applicant’s HIV treatment
in Nigeria, the Court
notes that the Officer’s finding is inconsistent. On the one hand, the Officer
states that the applicant’s brother Lugard has offered financing support in the
past while, in a previous part of his decision, the Officer questions the
existence of the applicant’s brother (Applicant’s record at p. 90 and 92).
[24]
With
respect to the H&C decision, since the results of the PRRA decision are an
essential factor taken into consideration and since the PRRA decision is made
in reviewable error, the Court finds that the H&C decision is also made in
reviewable error. The Officer’s selective use of evidence led him to make an
error in evaluating whether the applicant’s return to Nigeria would cause
him disproportionate hardship because he lives with HIV.
[25]
Finally,
with respect to the respondent’s argument on credibility, the Court is of the
view that the issues of credibility cannot palliate for the erroneous findings
by the Officer and no decision in this respect was brought to the attention of
the Court.
[26]
For the above reasons, the application for judicial review of the
PRRA decision and the application for judicial review of the H&C decision
will be granted.
[27]
The
parties did not propose any serious question of general importance and there is
no question that warrants certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. The
PRRA application for judicial review in file IMM-840-11 and the application for
judicial review in file IMM-841-11 are granted and the matters are referred
back for re-determination by a different PRRA Officer with respect to the
findings concerning HIV;
2. No question of general
importance is certified;
3. A copy of these reasons is to be
placed in Court file IMM-841-11.
“Richard
Boivin”
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