BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] These reasons follow the hearing on the 15th of November, 2006, at Toronto, of an application for judicial review of a decision of a Pre-Removal Risk Assessment Officer (the “Officer”) wherein the Officer determined:
After a consideration of the facts of this application and the documentary evidence in reference, it is my finding that the applicant does not face more than a mere possibility of persecution for any of the Convention grounds in Serbia and Montenegro. This application does not meet the requirements of Section 96 of the Immigration and Refugee Protection Act.
The evidence was also carefully assessed in considering the application of Section 97 of the Immigration and Refugee Protection Act. I find that there is insufficient evidence to conclude that the applicant, if returned to Serbia and Montenegro, would be subjected to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture.
Furthermore, I find that it is unlikely that the applicant would be subjected personally to a risk to his life or to a risk of cruel and unusual treatment or punishment. As a result, this application for protection does not meet the requirements of subparagraph 97(1)(b)(i) of the Immigration and Refugee Protection Act.
In the result, the Applicant’s PRRA application was rejected. The decision under review is dated the 20th of December, 2005.
BACKGROUND
[2] The Applicant is a citizen of the former Yugoslavia. He arrived in Canada in 1966, at the age of sixteen (16), under sponsorship by his father. He was for many years a permanent resident of Canada. He became a drug addict. He turned to crime to support his addiction. In the mid-1990s, he was diagnosed as suffering from Hepatitis C. By reason of his criminal activity, his permanent resident status was revoked.
[3] In or about 2001, the Applicant commenced methadone maintenance treatment and has been receiving counselling. According to evidence that was before the Officer from an addictions/community support worker for Toronto Public Health, the Applicant’s methadone maintenance treatment, in combination with the counselling, has since helped the Applicant to remain drug-free. That being said, he apparently remains challenged by ill health, due to his Hepatitis C. The addictions/community support worker expresses the opinion that:
…if [the Applicant] were to be removed from his network of medical, psychological and familial support, he would be at high risk of relapse to injection drug use, which can be fatal for those who suffer from hepatitis C.
[4] The Applicant, in his PRRA application, expresses the fear, supported by documentation accompanying that application, that no equivalent support network and methadone maintenance treatment would be available to him if he were required to return to what is now Serbia and Montenegro.
THE DECISION UNDER REVIEW
[5] The Officer reviews at some length the state of the health care system in Serbia and Montenegro. The Officer then goes on to apply his or her interpretation of that review to the specific concerns of the Applicant. The Officer writes:
The applicant submitted that he would face persecution as a drug addict and a sufferer from Hepatitis C, and that he would be at risk to his life because of the lack of adequate treatment. Furthermore, the applicant stated that methadone treatment is not available in Yugoslavia and that there is nothing to indicate that Yugoslavia is not able to provide adequate methadone treatment, therefore, it is a policy decision which discriminates against addicts, and causes a risk to their lives. Although the health sector has suffered due to the general crisis in Serbia in the past decade, based upon objective documentary evidence, it is my finding that Serbia and Montenegro with the financial assistance and efforts of other countries and international agencies, are making concrete efforts to confront the problematic issues that the health sector faces at the moment. Furthermore, according to “The Coordinating and Information Resource Center for International Travel by Patients Receiving Methadone and other Substitution Treatments for Opiate Addiction (“The Travel Resource Center”), as of August 31, 2005 methadone maintenance treatment (MMT) (including pilot programs) is available (approved) in Serbia. Therefore, I do not find that the applicant would be at risk of persecution due to being a member of a particular social group, as the Serbian government is not targeting individuals such as the applicant and causing them to be at risk of persecution or at risk to their lives. I also do not find that the Serbian government would be unwilling or unable to provide adequate protection to the applicant, or that they would deny or withhold medical care from the applicant if required. Based upon documentary evidence, it is my finding that there is insufficient persuasive evidence to indicate that the applicant would be denied access to the treatments and services afforded other citizens of Serbia and Montenegro and that he would be at risk due to his medical condition.
[6] The Officer’s reliance on the Coordinating and Information Resource Center for International Travel by Patients Receiving Methadone and other Substitution Treatments for Opiate Addiction is, and this was not in dispute before the Court, drawn from a web site of that Center as it appeared on or shortly after the 31st of August, 2005. It was equally not in dispute before the Court that the Applicant made reference to that web site in his submissions and supporting material constituting his PRRA application. But the Applicant’s application was submitted well in advance of the 31st of August, 2005, at a time when the 31st of August, 2005 information relied on by the Officer was not part of the web site.
[7] The Officer did not refer the Applicant to the updated material on the web site on which he or she relied. The Applicant was provided no opportunity to comment on the updated material or the interpretation placed on it by the Officer. Subsequent to the release of the decision under review, Applicant’s counsel contacted the Center, that is to say the originator of the web site, and advised the Court, without objection on the part of the Respondent, that he had been provided with further information that might well have cast doubt on the Officer’s reliance on the 31st of August, 2005 material.
THE ISSUES
[8] In the Memorandum of Argument filed on behalf of the Applicant, the following issues on this application for judicial review are identified:
- Did the officer deny the applicant natural justice by relying on a document that was not in existence at the time of the applicant’s submissions as evidence of a change of circumstances - - i.e. As proof that methadone treatment would be available for members of the applicant’s particular social group?
- Did that error cause the officer to reject the applicant’s claim on the basis of s. 96 and s. 97 of the Immigration and Refugee Protection Act?
[9] In response, counsel for the Respondent urged that, whether or not the Officer relied on extrinsic evidence without providing the Applicant an opportunity to respond to that evidence, the result on the Applicant’s application would inevitably go against the Applicant by virtue of subparagraph 97(1)(b)(iv) of the Immigration and Refugee Protection Act[1] (the “Act”), since the Applicant, as an inadmissible person, is not entitled to protection on a Convention refugee ground and the Applicant is excluded from being a person in need of like protection in that the sole risk identified by him relates to the “inability” of Serbia or Serbia and Montenegro to provide adequate health or medical care.
ANALYSIS
Standard of Review
[10] On questions of procedural fairness or denial of natural justice, a pragmatic and functional analysis is not required. Rather, if the appropriate degree of procedural fairness or natural justice has not been accorded, no deference is owed and the decision must be set aside.[2]
[11] On issues of the standard of review to be applied to interpretation of sections 96 and 97 of the Act, and more particularly, medical access, the standard of review has been found to be correctness[3]. I am satisfied that, on the facts of this matter, “correctness” is the appropriate standard of review of the interpretation of subparagraph 97(1)(b)(iv) of the Act.
Denial of Natural Justice or Procedural Fairness
[12] As earlier indicated in these reasons, the Officer relied on information from a web site to which he or she had been directed by the Applicant, but the information on that web site that was relied on post-dated the date of the Applicant’s application and no opportunity was provided to the Applicant to respond to the information relied on.
[13] In Fi v. Canada (Minister of Citizenship and Immigration)[4], my colleague Justice Martineau wrote at paragraph 8:
First, the PRRA Officer violated the applicant’s right to procedural fairness in the determination of his application for protection. The principles mentioned by the Federal Court of Appeal in Mancia v. Canada (Minister of Citizenship and Immigration)…are applicable here. It is apparent that the PRRA officer consulted relevant documentary extrinsic evidence found on the internet, upon which the applicant was never given an opportunity to comment. Such unilateral use of the internet is unfair… . [citations omitted]
I am satisfied that precisely the same might be said here with the addition that not only was the web site information consulted relevant and extrinsic evidence, it was also evidence that was central to the Officer’s decision. In the result, barring a conclusion that the result of a reconsideration of the Applicant’s PRRA application would inevitably end in the same result here under review, by virtue of subparagraph 97(1)(b)(iv) of the Act, against a standard of review of correctness, the decision under review must be set aside.
Inevitable Result – Subparagraph 97(1)(b)(iv) of the Act
[14] Less than a week before the hearing of this application for judicial review, the Federal Court of Appeal issued reasons addressing the interpretation of subparagraph 97(1)(b)(iv) of the Act. In Covarrubias v. Canada (Minister of Citizenship and Immigration)[5], Justice Linden, for the Court, wrote at paragraphs 31 and 32 of his reasons:
Having considered the parties’ arguments and the limited authorities, I am of the view that the provision in issue [subparagraph 97(1)(b)(iv) of the Act] is meant to be broadly interpreted, so that only in rare cases would the onus on the applicant be met. The applicant must establish, on the balance of probabilities, not only that there is a personalized risk to his or her life, but that this was not caused by the inability of his or her country to provide adequate health care. Proof of a negative is required, that is, that the country is not unable to furnish medical care that is adequate for this applicant. This is no easy task and the language and the history of the provision showed that it was not meant to be.
The ability of the different countries of the world to provide adequate health care varies dramatically. Some might contend that even countries such as Canada, the United Kingdom and the United States, though financially able, are not providing “adequate” health care to some of their people. These countries might respond that they are “unable” to provide more care, given their other financial obligations. Some might disagree and argue that these countries would, if they altered their priorities, be able to provide more. Whether this reluctance to provide more means that a country is unable to provide more is not a task that Courts can easily assess, except in cases such as the denial of health care on prosecutorial grounds or other similar bases. This will be a difficult evidentiary hurdle to overcome.
[emphasis added]
[15] Justice Linden continued at paragraph 39 of his reasons.
This is not to say that the exclusion in subparagraph 97(1)(b)(iv) should be interpreted so broadly as to exclude any claim in respect of health care. The wording of the provision clearly leaves open the possibility of protection where an applicant can show that he faces a personalized risk to life on account of his country’s unjustified unwillingness to provide him with adequate medical care, where the financial ability is present. For example, where a country makes a deliberate attempt to persecute or discriminate against a person by deliberately allocating insufficient resources for the treatment and care of that person’s illness or disability, as has happened in some countries with patients suffering from HIV/AIDS, that person may qualify under the section, for this would be refusal to provide the care and not inability to do so. However, the applicant would bear the onus of proving this fact.
[emphasis added]
[16] On the facts of this matter, it is clear that the Applicant urged before the Officer that Serbia and Montenegro would refuse to provide the care that he receives in Canada, and that there was evidence that he will need to continue to receive, whether or not Serbia and Montenegro have the ability to provide such care. This issue is raised directly by the extrinsic evidence on which the Officer has relied in reaching his or her decision and it is on this same issue that the Applicant urges that he is in a position to provide, and would have provided if given an opportunity, relevant and cogent evidence.
[17] While, as emphasized by Justice Linden, the burden that would be on the Applicant to take his situation outside the ambit of subparagraph 97(1)(b)(iv) of the Act would be a heavy one, Justice Linden acknowledges that it is not necessarily an insurmountable burden. Put another way, I conclude that, if the decision under review were set aside and the Applicant’s application were referred back for reconsideration and re-determination, the result would not be inevitable.
CONCLUSION
[18] Based upon the foregoing analysis, at the close of the hearing of this application for judicial review, I advised counsel that the application would be allowed, that the decision under review would be set aside and that the Applicant’s application would be referred back for reconsideration and re-determination, taking into account these reasons. Given that information, when consulted on whether this matter raises a serious question of general importance for certification, both counsel answered in the negative. I am in agreement with counsel. This matter turns on its very unique facts. No serious question of general importance that would be determinative on an appeal from my decision herein arises.
Ottawa, Ontario
November 27, 2006
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-694-06
SYTLE OF CAUSE: BRANISLAV GLUVAKOV
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 15, 2006
REASONS FOR ORDER
AND ORDER BY: GIBSON J.
APPEARANCES BY:
Jack C. Martin For the Applicant
Lorne McClenaghan For the Respondent
SOLICITORS OF RECORD:
Jack C. Martin
Barrister and Solicitor
Toronto, Ontario For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario For the Respondent
[1] S.C. 2001, c. 27.
[2] 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; and Sketchley v. Canada (Attorney General) [2005] F.C.J. No. 2056 (QL), 2005 FCA 404 at paragraphs 52 and 53; recently followed in the immigration context in Hoque v. Canada (Minister of Citizenship and Immigration) 2006 FC 772 at paragraph 11.
[3] See: Singh v. Canada (Minister of Citizenship and Immigration) [2004] 3 F.C. 323.
[4] [2006] F.C.J. No. 1401 (QL), 2006 FC 1125.
[5] 2006 FCA 365, Court file A-418-05, November 10, 2006.