Docket: IMM-1174-17
Citation:
2017 FC 881
Toronto, Ontario, October 5, 2017
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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ALPHONSE
FULU-SHUNGU
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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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JUDGMENT AND REASONS
[1]
The present Application concerns the Applicant’s
request for humanitarian and compassionate (H&C) relief from a removal
order requiring him to return to Burundi as a failed refugee claimant. By a decision
dated February 13, 2017, the Applicant’s request was rejected. The issue for
determination is whether the decision is reasonable.
[2]
The fact that the Applicant is HIV positive was
the central feature of the Applicant’s request for H&C consideration. In
support of this feature, the Applicant advanced evidence to the H&C Officer
(Officer) that as of 2012, of all of the HIV sufferers in Burundi, only 34% had
a chance to receive anti-retroviral therapy (Certified Tribunal Record (CTR),
p. 220). Prior to the delivery of the decision under review, the Officer
consulted “new” information dated 2014 which is
explained in the decision as follows:
With regards to treatment the majority of
people in need have access to antiretroviral therapy as well as other care
and support services. The government recognized that it has experienced drug
shortages in the past. It is addressing the issue by implementing inventory and
supply management systems in centers where the drug supply is being
distributed. As for government assistance, the State also offers social and economic
support to people who are affected. [Emphasis added] (Decision, CTR, p. 8)
[3]
Counsel for the Applicant argues that it was
unfair for the Officer to apply the new evidence without giving the Applicant
an opportunity to respond. I agree with this argument and find that it is
sufficient to set aside the decision. However, there is a much more significant
error in the decision, which in my opinion, renders it manifestly unreasonable.
[4]
In the very next paragraph to the one quoted
above, the Officer states as follows:
I realize that the situation is Burundi may
not be comparable to the one in Canada. However, I note that it has been making
serious efforts to address the needs of people living with HIV. In light of the
evidence before me, the applicant does not demonstrate that he would be
unable to obtain the care his medical condition requires if he returned to his
country of nationality. [Emphasis added] (Decision, CTR, p. 9)
[5]
The apparent source of this opinion is the idea
that the Applicant would be in the “majority” of
HIV sufferers who would receive medication. There is absolutely no evidence to
support this idea. To address this idea, Counsel for the Applicant requested an
opportunity to refer to evidence that the Applicant could have produced to the
Officer had the opportunity been provided. In my view it was very fair and
appropriate that Counsel for the Respondent did not object to the request.
[6]
As a result, Counsel for the Applicant produced clarifying
evidence that the actual “majority” chance that
the Applicant would have for treatment upon return to Burundi would only be 52%
(Applicant’s Application Record, Tab D, p. 455). Regardless of this
clarification, I find it stunning that in rejecting the Applicant’s request for
H&C relief and stating that he will do just fine if he were to return, the
Officer saw no humanitarian and compassionate reason to have the Applicant
avoid the risk of something like a one in two chance of dying for failure of receiving
anti-retroviral therapy in Burundi when his access to life-saving medicine is
guaranteed in Canada.
[7]
I find that, to say the least, the decision is
devoid of rational and intelligible thought and compassion. As a result, I find
that the decision is unreasonable.
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