Date: 20070323
Docket: IMM-3727-06
Citation:
2007 FC 305
Ottawa, Ontario, March 23, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
DMITRI
ZLOBINSKI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application is for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision by Mr.
S. Neufeld, Pre-Removal Risk Assessment Officer (the Tribunal), dated May 4, 2006, which
determined that the applicant’s Pre-Removal Risk Assessment (PRRA) was
rejected.
ISSUE
[2]
While
the applicant raises three issues, I find it necessary to deal only with one:
a) Did
the Tribunal breach the principles of procedural fairness by failing to
disclose relevant extrinsic documentary evidence about the change in country
conditions that became available only after the applicant made his PRRA
submissions?
[3]
For
the following reasons, the answer to this question is negative. The present
application shall therefore be dismissed.
BACKGROUND
[4]
The
applicant was born in 1978 in Chernigov, Ukraine in the
former Soviet Union and is a citizen of Ukraine. On August
19, 1992, the applicant’s father and brother were determined to be Convention
refugees due to the anti-Semitism they faced in Ukraine. The
applicant and his mother joined his father and brother in Canada in 1992.
They were included in the father’s application for permanent resident status,
which was granted on May 31, 1995.
[5]
Following
a series of nine drug-related serious criminal convictions over a five year
period, the applicant was deemed to be an inadmissible permanent resident on
grounds of serious criminality, pursuant to paragraph 36(1)(a) of the
Act. Consequently, the applicant was ordered deported from Canada on June 3,
2003.
[6]
The
applicant claims that he is at risk of persecution, torture, cruel and unusual
treatment even death at the hands of neo-Nazis, as well as the Ukrainian police
and prison officials because of his Jewish ancestry and addiction to heroin. In
particular, the applicant alleges that because of anti-Semitism, his father
fled more than a decade ago and anti-Semitism is on the rise in Ukraine. Also, even
though the applicant has successfully completed a long term drug rehabilitation
program in Canada, at Narconon Trois Rivières, Quebec, he fears
that if he were to be returned to Ukraine, he would not receive
proper treatment for his addiction and would relapse, and then he would be sent
to prison where he would suffer torture in inhumane conditions.
[7]
The
applicant made a PRRA application on November 9, 2005 and submitted documents
on November 25, 2005. There was no hearing
of the matter. The Tribunal rejected the applicant’s PRRA application. In
addition to the applicant’s PRRA application and submissions, the Tribunal undertook
independent research on the internet and relied on the following three sources:
1.
U.S.
Department of State Country Reports on Human Rights Practices – 2005 dated
March 8, 2006, http://www.state.gov/g/drl/rls/hrrpt/2005/61682.htm
2.
U.S.
Department of State International Religious Freedom Report 2005 http://www.state.gov/g/drl/rls/2005/51588.htm
released November 8, 2005
3.
Overseas
Security Advisory Council, Kiev, Ukraine: 2006 Crime and Safety Report,
16 March 2006 http://www.osac.gov (pages
46 to 55 of the Tribunal's Record)
[8]
Out
of the three documents mentioned above, only document number 2 was available in
November 2005 when the applicant made his submissions.
[9]
The
Tribunal did not disclose these sources nor did it invite the applicant to make
further submissions in light of these post-submission reports on the change in
country conditions following Ukraine’s Orange Revolution. It
is this failure to disclose such determinative extrinsic evidence that forms
the crux of the present application for judicial review.
DECISION UNDER REVIEW
[10]
The
Tribunal found that the applicant failed to prove that he faces more than a
mere possibility of risk in Ukraine. The Tribunal stated
that after consideration of all the submissions and its own independent
research, it was unable to find that the applicant met the requirements of
section 96 of the Act, in that the applicant submitted insufficient evidence as
to why he should fear returning to Ukraine. Similarly, the
Tribunal found that he submitted insufficient evidence pursuant to
section 97 to prove that he would be subjected personally to a risk of cruel
and unusual treatment or punishment. The Tribunal also found that there is
insufficient evidence that state protection would not be available to him. The
Tribunal made the following findings:
a) With
respect to the applicant’s fear of the rise in anti-Semitism:
·
According
to the U.S. Department of State International Religious Freedom Report
2005, citizens of Ukraine are provided with freedom of religion by
constitutional law and the government generally respects this right in
practice;
·
notwithstanding,
there are reports of isolated incidents of anti-Semitism and anti-Islamic
sentiments;
·
since
the Orange Revolution in Ukraine in 2005, there has been
an increase in Rabbis entering the country. This has allowed the Jewish
community to flourish and a growing number of individuals to openly identify
themselves as Jewish;
·
the
US DOS report indicates that there is a split in the Ukrainian Jewish community
over whether to characterize the isolated incidents of anti-Semitism as an
increase of anti-Semitism in the country;
·
the
reports of instances of anti-Semitism also generally include police involvement
in addressing these occurrences. While the police have had limited success in
their investigation of such crimes, police response and protection would appear
to be adequate in this area.
b) With
respect to fear of relapse into drug use if returned to Ukraine:
·
the
applicant’s fears of arrest and detention in Ukraine’s harsh anti
drug penal system due to a possible relapse are purely speculative and there
was insufficient evidence to substantiate a personalized risk to the applicant
as a result of this speculation;
·
according
to the US Department of State Country Reports on Human Rights Practices, there
have been notable improvements in human rights issues since the Orange
Revolution, including increased police accountability and ongoing improvements
in prison conditions;
·
according
to the 2006 Crime and Safety Report issued by the Overseas Security Advisory Council
in March 2006, the use of narcotics in Ukraine continued to
increase in 2005. However, this report also stated as follows:
In 2005, the government of Ukraine continued to implement a
comprehensive policy, entitled “The Program of the State Policy in Combating
Illegal Circulation of Narcotics, Psychotropic Substances and Precursors for
2003-2010.” The program acknowledges the growing scale of drug abuse, the lack
of adequate education and public awareness efforts, and the need for community
prevention efforts, treatment and rehabilitation.
·
The
Tribunal’s research indicates that Ukraine has treatment programs
to treat over 141,000 officially registered drug addicts;
·
While
the Tribunal is sympathetic to the medical issues arising from the applicant’s
drug addition, these are excluded from consideration under paragraph 97(1)(b)
of the Act;
·
These
drug related medical issues are not risks as identified in sections 96 and 97
of the Act, and therefore do not lie with the Tribunal’s jurisdiction for
consideration under PRRA.
ANALYSIS
Standard of review
[11]
It
is settled law that where questions of procedural fairness and natural justice
are engaged, there is no requirement to undertake a pragmatic and functional
analysis to determine the applicable standard of review as set out in Dr. Q.
v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R.
226.
[12]
In
such instances, the Court will set aside a decision where there is sufficient
evidence to demonstrate that the Tribunal has breached a principle of natural
justice or denied the applicant the right to procedural fairness (see Canadian
Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour),
[2003] 1 S.C.R. 539, recently followed in the immigration context in Ren v.
Canada (Minister of Citizenship and Immigration), 2006 FC 766, [2006]
F.C.J. No. 994 (F.C.) (QL); and Sketchley v. Canada (Attorney General), 2005
FCA 404, [2005] F.C.J. No. 2056 (F.C.A.) (QL), at paragraphs 52 and 53;
followed in the immigration context in Hoque v. Canada (Minister of
Citizenship and Immigration), 2006 FC 772, [2006] F.C.J. No. 964 (F.C.) (QL),
at paragraph 11 and recently followed by Justice Frederick Gibson, in Gluvakov
v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1800
(F.C.) (QL) at paragraph 10).
Failure to disclose
extrinsic evidence
[13]
The
applicant argues that the Tribunal erred by basing its negative PRRA decision
on three documents that did not exist at the time of the applicant’s
submissions, without first affording the applicant the opportunity to make
submissions in light of these documents that speak to a change in country
conditions not only with respect to anti-Semitic activities in the Ukraine
since the Orange Revolution, but also with respect to the police investigations
of such crimes. Also, the applicant submits that the Tribunal erred by relying
on the third document entitled,
Overseas Security Advisory Council, Kiev,
Ukraine: 2006 Crime and Safety Report, 16 March 2006 http://www.osac.gov
[14]
This
document speaks to the documented changes that have been introduced by the post
Orange Revolution administration, to correct the documented inhumane conditions
that have long plague Ukraine’s penal system.
Moreover, this undisclosed document highlights the Ukrainian government’s
efforts to deal with the rising use of narcotics in that country including the
implementation in 2005 of a comprehensive policy entitled, “The Program of the
State Policy in Combating Illegal Circulation of Narcotics, Psychotropic
Substances and Precursors for 2003-2010.”
[15]
In
relying on Justice Robert Décary’s decision in Mancia v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 565 (F.C.A.) (QL), the
applicant argues that the three extrinsic documents not only post-date the
applicant’s PRRA submissions, but the information they contain are novel and
significant such that they introduce evidence of changes in the country
conditions that affected the decision. The non-disclosure of these documents
was fundamentally unfair. Counsel for the applicant argues that Mancia is
prescient to the circumstances of this case and most notably paragraph 27 b) of
that decision, which states as follows:
27 b) with respect to documents relied
upon from public sources in relation to general country conditions which became
available and accessible after the filing of an applicant's submissions,
fairness requires disclosure by the Post Claims Determination Officer where
they are novel and significant and where they evidence changes in the general
country conditions that may affect the decision.
[16]
The
respondent is of the view that there was no error on the part of the Tribunal
to have relied upon the most up-to-date material, which dealt with conditions
in post-December 2004, unlike the applicant who relied almost exclusively on
documentation that predominantly pre-date the Orange Revolution. In particular,
the respondent notes that the Union of Councils for Jews in the Former Soviet
Union (UCSJ) documentary evidence found at pages 126-136 of the Application
Record (the Record) is dated December 2004 and is entitled, “Chronicle of Anti-Semitism
in Ukraine: 2002-2004.” Similarly, the Human Rights Watch report at pages 68-70
of the Record was issued in January 2005; while the Amnesty International
report at pages 92-93 of the Record dated May 11, 2005, deals almost
exclusively with incidents having occurred between 2001 and 2004. But more
importantly, the respondent argues that the decision is based on publicly
available documents, as a result of which no serious issue is raised.
[17]
Like
the applicant, the respondent draws the Court’s attention to Justice Décary’s
decision in Mancia and relies on it for the proposition that the
Tribunal met its obligation of fairness to inform an applicant. In this regard,
the respondent cites paragraph 22:
[…] First, an applicant is deemed to know
from his past experience with the refugee process what type of evidence of
general country conditions the immigration officer will be relying on and where
to find that evidence; consequently, fairness does not dictate that he be
informed of what is available to him in documentation centres. Secondly, where
the immigration officer intends to rely on evidence which is not normally
found, or was not available at the time the applicant filed his submissions, in
documentation centres, fairness dictates that the applicant be informed of any
novel and significant information which evidences a change in the general
country conditions that may affect the disposition of the case.
[18]
Finally,
the respondent puts forth the argument that the reports came from the US
Department of State website, widely recognized for its country reports that are
customarily cited in immigration proceedings. It was therefore not unreasonable
to expect that the applicant who is represented by one of the immigration bar’s
most reputable counsel, would know that the Tribunal may consider such
evidence.
[19]
After
carefully considering the arguments of counsel and having read the documents
before the Tribunal, I am of the view that the applicant’s argument must fail. First,
the second document was available at the time that the applicant made his final
submissions. Second, the independent information relied upon by the Tribunal
was not novel. Mancia instructs us that where the undisclosed evidence
is determinative of the decision, the principles of fairness require that the
applicant be informed of this and be invited to make submissions accordingly.
[20]
This
is not the case here. The evidence referred to by the Tribunal is public and
does not say that there has been a significant change in the country
conditions, or anti-Semitism is systematic or widespread. It deals with the
2005 situation in Ukraine, which is the year that the applicant made his
application.
[21]
The
evidence relied upon by the Tribunal on the issue of narcotics and drug-related
crimes in Ukraine are also not
novel. It mentions that this is a serious and growing problem and the
government continues to implement a comprehensive policy that has been in place
since 2003.
[22]
Therefore,
I agree with the respondent that the Tribunal's decision is reasonable and
there are no reviewable errors that warrant the intervention of this Court.
[23]
The
parties did not submit questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that
the application for judicial review is dismissed. No question is certified.
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