Date: 20010509
Docket: IMM-1333-00
Neutral Citation: 2001 FCT 450
BETWEEN:
HASSAN MARE
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of the Immigration and Review Board dated February 17, 2000 wherein the Convention Refugee Determination Division (hereinafter "the Board") found this applicant not to be a Convention refugee.
[2] The applicant is a citizen of Burkina Faso. He alleges a well-founded fear of persecution based on a particular social group, individuals who are HIV-positive.
[3] He initially fled to Canada out of fear for his safety as the villagers where he resided felt that he would attempt to succeed his father as chief; the father, the former tribal chief of the primarily Muslim village had converted to Christianity.
[4] Since his arrival in Canada the applicant was diagnosed as HIV-positive. He therefore feels rejection by his family and the community in Burkina Faso; he submits that he should be found to be a Convention refugee since he would not have sufficient funds to be treated for his illness in his home country and, even if he were treated, the treatment offered would not meet the standards that are provided for such cases in Ontario.
[5] The Board found that the applicant lacked credibility as to his fear of persecution based on the usual grounds. It then analysed his medical situation and determined that though he was HIV-positive he would not systematically be deprived of health care which would amount to persecution. Based on the available documentary evidence, the Board found that anti-viral medication had been available in Burkina Faso since April 1999 and that the Ministry of health made the medication accessible; the Board nevertheless was satisfied that the cost was high and was not subsidized. It also found that the applicant being impecunious was irrelevant since he could return to his former profession, that of cattle breeder, and could receive help from his family and concluded that the insufficiency of sophisticated and expensive treatment available in his country of origin could not amount to persecution.
[6] The only argument submitted to the Court for deliberation may be summarized as follows: does the unavailability of sophisticated medical treatment constitute persecution. Counsel further suggests that the Board erred in failing to properly analyse whether he would have reasonable access to health care given his particular circumstances.
[7] The respondent, on the other hand, submits that withholding or denying health care may, in some circumstances, amount to persecution if it is done for a discriminatory reason or is directed to a specific group; such is not the case of this applicant. He further argues that taking the applicant's argument to its logical conclusion would support the proposition that any person outside of Canada who did not have access to health care in his home country which is similar to that available in Ontario would be entitled to Convention refugee status.
[8] In this particular case, it is submitted that applicants who are HIV-positive and claim refugee status and would not be adequately treated in their country of origin, the Board or the Court should determine that they form part of a special social group amounting to persecution.
[9] To support his contention that the lack of medical care can amount to discrimination, counsel refers me to the decision of Cheung v. Canada, [1993] 2 F.C. 314, where the Federal Court of Appeal wrote at paragraph 19:
The Board also erred in its treatment of the minor appellant. As a minor child dependent on Ms. Cheung, Karen Lee may also claim the benefit of such status on the principle of family unit. Moreover, if Karen Lee were sent back to China, she would, in her own right, experience such concerted and severe discrimination including deprivation of medical care, education and employment opportunities and even food, so as to amount to persecution. She was poignantly described as a "black-market person", denied the ordinary rights of Chinese children. As such, she is a member of a particular social group, that is, second children. Karen Lee has already experienced certain deprivations and may be subject to further persecution should she be returned to China.
(Emphasis added)
[10] I disagree with counsel's interpretation of Cheung, supra. A careful reading of the headnote satisfies me that the Court of Appeal was not suggesting that lack of adequate medical treatment can amount to discrimination. The headnote states as follows:
The Board misconstrued the law by focussing on the general aim of the one-child policy, rather than examining the methods used to enforce it. The Board decision ignored the severity of the intrusiveness of sterilization to a person's mental and physical integrity, and wrongly required that a "persecutory intent" be present, whereas a persecutory effect will suffice.
Women in China who have one child and are faced with forced sterilization satisfy enough of the criteria set out in Canada (Minister of Employment and Immigration) v. Mayers to constitute a particular social group. They share similar social status and hold a similar interest which is not held by their government. They are identified by a purpose which is so fundamental to their human dignity that they should not be required to alter it on the basis that interference with a woman's reproductive liberty is a basic right "rank[ing] high in our scale of values".
(Emphasis added)
[11] Counsel then refers me to International Conventions in which it is suggested that states adhering to such agreements have an obligation to undertake steps to the maximum of their available resources to achieve a certain standard of medical care. I am satisfied that Burkina Faso, considering its wealth or lack thereof, is making available such medical resources as can possibly be achieved in a disadvantaged country. The state has taken its adherence to International Conventions to the highest standard of physical and mental health that it can economically afford. U.N. Resolutions may, in some cases, be administered in a persecutory manner but such is not the case with regards to this applicant. To argue that refugee claimants having inadequate medical care in disadvantaged countries equals persecution would create an unmanageable situation. To look to refugee boards to determine independently what standard should be applied throughout the world or in each country of origin is not their function, as well it is beyond their expertise. How can they be expected to determine the adequacy of medical care being offered?
[12] As Madam Justice Reed wrote in Qing Bing Li v. The Minister of Citizenship and Immigration, IMM-5095-98, F.C.T.D., unreported:
The CRDD rejected this claim, recognizing that many people in the PRC live in poverty, and that the disabled are not well taken care of. The CRDD noted that this was not because the government was unwilling to provide medical care to the disabled, but because it was unable to do so, given the costs involved. The CRDD concluded that the hardships that were suffered by the applicant and his disabled family members did not constitute persecution and certainly did not constitute persecution for a convention reason "there was no nexus between the hardships and a convention reason (race, religion, membership in a particular social group, or political opinion)".
...
Despite a lack of detailed analysis, the CRDD's decision that the hardship suffered by the application and his family was not persecution, and that it was not visited on them because they fell within a particular social class, as the latter is defined in Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689, is fully supported by the record. I am not persuaded that a more detailed analysis could have led to any different result.
(Emphasis added)
[13] I am satisfied that the Board properly analysed the availability and accessibility to health care generally afforded to citizens in Burkina Faso.
[14] As Madam Justice Reed wrote, there is no nexus between hardships and a convention reason; that is, discrimination based on race, religion, membership in a particular social group, or political opinion.
[15] Counsel for the applicant then suggested that there was a question of sufficient general importance that should be submitted for certification. Though counsel's question is broken down into four distinct and separate paragraphs, it is best summarized by counsel for the respondent in which he suggests for certification pursuant to section 83 of the Immigration Act the following:
If a person is unable to access a reasonable level of medical care in their country of nationality, does that person thereby face a serious possibility of persecution?
[16] The respondent is satisfied that this may be a serious question of general importance and suggests that the answer should be "no" unless there is evidence that medical care is unavailable because of some persecutory reason; that even if sophisticated medical care is not available because of poverty, it does not amount to persecution. The respondent goes on to suggest that if a person, outside of Canada, not having access to a level of medical care similar to that in Ontario, would be granted asylum, it could give rise to a difficult situation and could have a potentially huge impact on refugee claims.
[17] I have not been convinced that the question should be certified pursuant to section 83. There has not been any evidence or any submission that satisfies me that there is any nexus established between poverty and unavailability of sophisticated medical care and the usual grounds underlying persecution.
[18] The application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
May 9, 2001