Date: 20020307
Docket: IMM-6116-00
Neutral citation: 2002 FCT 257
Toronto, Ontario, Thursday the 7th day of March, 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
ANTONINA IVANOVNA MAZURYK and
VIKTOR SAVELYEVICH MAZURYK
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mrs. Antonina Ivanovna Mazuryk claims a personalized risk to her life if returned to Ukraine because of her deteriorating medical condition. Together with her husband, Viktor Savelyevich Mazuryk, she applied for consideration under the Post-determination Refugee Claimants in Canada ("PDRCC") Class. In this application they challenge the negative decision rendered on their application by the Post-Claim Determination Officer ("PCDO").
[2] The applicants argue that the exclusion of risk due to medical needs from the assessment of membership in the PDRCC class violates section 7 and subsection 15(1) of the Charter of Rights and Freedoms, ("Charter") and that this violation cannot be justified under section 1 of the Charter. The applicants also argue that to the extent that the PCDO relied on selected passages in an article concerning health care in Ukraine, the PCDO breached the duty of fairness because the applicants were not given a chance to reply to that article and the PCDO did not quote the entire article.
THE FACTS
[3] In July, 1997 Mr. and Mrs. Mazuryk travelled to the United States from Ukraine with the support of an American church which arranged for their food, housing and medical treatment for Mrs. Mazuryk. While in the United States no claim for refugee status was made by either Mr. or Mrs. Mazuryk.
[4] After approximately a year and a half, the church was financially unable to continue its support and Mr. and Mrs. Mazuryk came to Canada, claiming refugee status on December 14, 1998 at the border.
[5] In their Personal Information Form ("PIF") Mr. and Mrs. Mazuryk described their claim to a well-founded fear of persecution as follows:
My wife and I were forced to leave Ukraine in order to extend the life of my wife who is suffering from Parkinson's disease and Thyro-toxicosis. My wife was diagnosed with thyro-toxicosis in 1988 soon after the Chernobyl nuclear accident and then with Parkinson's Disease in 1995 due to a drug-induced reaction to medication which she was given at a hospital in her native city. Soon after taking this medication she became almost completely paralyzed and lost the ability to work (she had been a teacher). She was forced to live on a tiny pension of $40 (Canadian) a month. I could not continue working because I had to take care of my wife because she was fully dependent on me. Her monthly income (the pension) would be used up in one week for her medication and as time went by it became more and more difficult to get it. Furthermore, her medications are not generally available for ordinary people even if you have the ability to pay for them. Medical facilities and treatment in Ukraine are substandard, especially for people like us, who have no means to cover the expenses for our own treatment. However, without treatment she will die. Her thyro-toxicosis, requires expensive mediation and radio isotope therapy which is not available for ordinary citizens such as my wife and me. Because of this we had to leave our two children behind and came to America with the help of an American church (called Abundant Fellowship) for medical treatment.
The lack of medical facilities and treatment in Ukraine is worse when you are perceived by the authorities as its enemies. We are perceived as its enemies for several different reasons. First of all because we never supported any political party. Secondly, our public involvement in a Christian church. Third, because we publicly linked my wife illness to the nuclear accident of Chernobyl.
[...]
Therefore if we are forced to return to Ukraine, it would mean certain death for my wife since the type of treatment needed to sustain her life (which is available in Canada), would not available to us in Ukraine. In addition, now that the Communist party is gaining more control in the government, we are afraid that our religious affiliation and our lack of support for the communist party and our opinion about the nuclear accident will be seen as a threat to the authorities and that they will intentionally deny us even the few health services that are currently available.
[6] The refugee claim was denied by the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") in February of 2000 on two grounds. First, the harm feared by Mr. and Mrs. Mazuryk was not by reason of any of the grounds contained in the definition of Convention refugee. Second, Mr. and Mrs. Mazuryk demonstrated neither a subjective fear of persecution nor a valid basis for fearing persecution because of their religious beliefs.
[7] Of relevance to this proceeding are the following remarks by the CRDD:
Because the claimants lived outside the prescribed area (a 30-km. radius) for her to be considered an "official" victim of the disaster, they said they were not able to obtain long term and short term assistance. They said this caused them considerable hardship. After the female claimant's condition deteriorated from the Parkinson's, she was granted a second level disability pension from April 1996 to May 1997, which was renewed until 1 May 1998. They left Ukraine for the United States in July 1997. The Abundant Life Fellowship paid their way to the United States, and the female claimant received free medical assessment and treatment and living expenses until they left the United States to come to Canada in December 1998.
Although the female claimant is very ill, there is no evidence before the panel to indicate that her illness was linked to her exposure to radiation. Even though the documentary evidence submitted speaks to long-term effects, both physical and psychological, of the Chernobyl disaster, the evidence does not link the female claimant's illness to it. She has qualified for a disability pension, and has been able to obtain medication, although at a higher price than that paid by those considered to be the direct victims. There is no evidence of persecution of the female claimant, and since her pension continued until some months after she left Ukraine, the panel finds that there is no indication there would be persecution in the future.
[footnotes omitted, underlining added]
[8] In their PDRCC submission it was stated on the applicants' behalf that:
Based on Dr. Norkus' opinion, it is clear that Mrs. Mazuryk would suffer greatly should she be forced to travel to the Ukraine. We ask that you consider the very real risk to her health as outlined in the medical report be considered as evidence of an objectively identifiable risk - one which is medically acknowledged and personal to her life.
Even if she were to make the long trip successfully, it is not likely that Mrs. Mazuryk would obtain the medical attention she needs owing to the discrimination she would face as an evangelical Christian, and would therefore continue to face serious risk to her life and well-being. The IRB itself acknowledged the societal discrimination faced by evangelical Christians in Ukraine, and this has been confirmed by the U.S. State Department in its most recent country report (please see attached excerpt). As evidenced by the fact of the Mazuryks' recent travels to the U.S. for treatment, there is a lack of appropriate health facilities for Parkinson's patients in Ukraine.
[9] This submission was supported by the medical report which, in its entirety, stated:
This is a statement on the above named patient, date of birth April 5, 1951, that she has severe Parkinsons-atypical form. The patient needs 24 hour supervision and assistance with any and all simple daily living activities. She needs anti-Parkinson medication; without them she would go into complete spasm and would not be able to move at all. Any travel for more than 20-30 minutes makes her condition much worse; she goes into spasms. Any longer travel at this time is impossible. Her illness is permanent and with time will get worse.
If you require any further assistance or information regarding this patient, please contact our office.
THE LEGISLATIVE FRAMEWORK
[10] The PDRCC class is established under the authority of subsection 6(5) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") which permits an exception to the visa requirement in subsection 9(1) by allowing an immigrant, and all dependents, to be granted landing for reasons of public policy. To qualify, the immigrant must be a member of a class prescribed by regulations enacted pursuant to paragraph 114(1)(e) of the Act.
[11] The Governor-in-Council, as authorized by paragraph 114(1)(e) of the Act, has prescribed a class of immigrants defined in subsection 2(1) of the Immigration Regulations, 1978 SOR/78-172 as the PDRCC Class. That definition is as follows:
| "member of the post-determination refugee claimants in Canada class" means an immigrant in Canada (a) who the Refugee Division has determined on or after February 1, 1993 is not a Convention refugee, other than an immigrant (i) who has withdrawn the immigrant's claim to be a Convention refugee,(ii) whom the Refugee Division has declared to have abandoned a claim to be a Convention refugee, pursuant to subsection 69.1(6) of the Act, (iii) whom the Refugee Division has determined does not have a credible basis for the claim, pursuant to subsection 69.1(9.1) of the Act, (iv) who has left Canada at any time after it was determined that the immigrant is not a Convention refugee, (v) who, as a result of a determination by the Refugee Division, is considered to be a person referred to in section F of Article 1 of the United Nations Convention Relating to the Status of Refugees, set out in the schedule to the Act, (vi) who is a person described in paragraph 19(1)(c), subparagraph 19(1)(c.1)(i), paragraph 19(1)(e), (f), (g), (j), (k) or (l) or subparagraph 27(1)(a.1)(i) of the Act, or (vii) who has been the subject of a removal order, has left Canada and has, since the date of execution of the removal order, stayed in the United States or St. Pierre and Miquelon for a period of not more than six months, and (b) [Repealed, SOR/97-182, s. 1] (c) who if removed to a country to which the immigrant could be removed would be subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country, (i) to the immigrant's life, other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care, (ii) of extreme sanctions against the immigrant, or (iii) of inhumane treatment of the immigrant; |
« demandeur non reconnu du statut de réfugié au Canada » Immigrant au Canada : a) à l'égard duquel la section du statut a décidé, le 1er février 1993 ou après cette date, de ne pas reconnaître le statut de réfugié au sens de la Convention, à l'exclusion d'un immigrant, selon le cas : (i) qui a retiré sa revendication du statut de réfugié au sens de la Convention, (ii) à l'égard duquel la section du statut a, en vertu du paragraphe 69.1(6) de la Loi, conclu au désistement de la revendication du statut de réfugié au sens de la Convention, (iii) à l'égard duquel la section du statut a déterminé, en vertu du paragraphe 69.1(9.1) de la Loi, que sa revendication n'a pas un minimum de fondement, (iv) qui a quitté le Canada à tout moment après qu'il a été déterminé qu'il n'est pas un réfugié au sens de la Convention, (v) qui est, par suite d'une décision de la section du statut, considéré comme une personne visée à la section F de l'article premier de la Convention des Nations Unies relative au statut des réfugiés figurant à l'annexe de la Loi, (vi) qui est une personne visée à l'alinéa 19(1)c), au sous-alinéa 19(1)c.1)(i), à l'un des alinéas 19(1)e), f), g), j), k) ou l) ou au sous-alinéa 27(1)a.1)(i) de la Loi, (vii) qui a été l'objet d'une mesure de renvoi, a quitté le Canada et est demeuré depuis la date de l'exécution de la mesure de renvoi soit aux États-Unis, soit à Saint-Pierre-et-Miquelon, pendant une période maximale de six mois; b) [Abrogé, DORS/97-182, art. 1] c) don't le renvoi vers un pays dans lequel il peut être renvoyé l'expose personnellement, en tout lieu de ce pays, à l'un des risques suivants, objectivement identifiable, auquel ne sont pas généralement exposés d'autres individus provenant de ce pays ou s'y trouvant : (i) sa vie est menacée pour des raisons autres que l'incapacité de ce pays de fournir des soins médicaux ou de santé adéquats, (ii) des sanctions excessives peuvent être exercées contre lui, (iii) un traitement inhumain peut lui être infligé. |
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This class therefore includes persons who have been denied refugee status, and who are not excluded by subparagraphs (a)(i) through (vii) of the definition.
[12] In addition to those requirements, an applicant must establish that in the country to which he or she would be removed, the applicant would be subject to an objectively
identifiable risk, where the risk is not a risk faced generally by other individuals in or from that country. That risk must be a risk to the immigrant's life, other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care, or a risk of extreme sanctions against the immigrant, or a risk of inhumane treatment of the immigrant. The applicant must show that this risk exists throughout the country.
[13] Under section 11.4 of the Immigration Regulations, members of the PDRCC Class and their dependents are subject to certain landing requirements. Medical admissibility, found under paragraph 19(1)(a) of the Act, is absent from the landing requirements for members of the PDRCC. Therefore, a person who is found to be a member of the PDRCC Class can be landed in Canada under less stringent admissibility criteria than, for example, applicants for landing under the humanitarian and compassionate provisions of the Act.
THE PCDO'S DECISION
[14] The PCDO's decision is reproduced in material part as follows:
· Documentary evidence on medical care in Ukraine states: "Currently Ukrainians can utilize three general forms of medical care. First are the familiar state clinics, financed by the central state budget. They are officially free and accept people who are registered ("propysani") in the city district or regional county in which they operate. There are also clinics that belong to large enterprises that have entered into joint ventures with Western firms. These clinics were created for the benefit of the workers and are somewhat less expensive than private medicine. The companies subsidize a part of the cost. Third are the private clinics, which are the most expensive in comparison. Ironically, although the costs vary, often the same doctors work both in state clinics and as staff in private clinics... Ironically, even with the higher prices charged by private clinics, the level of services often can be lacking." (The Ukrainian Weekly, October 17, 1999)
· The applicants may face discrimination from society as members of a nonnative religious organization; however, this discrimination cannot be seen as a risk of threat to life, inhumane treatment or extreme sanctions.
· In section 2(c)(i) of the Immigration Regulations it states "member of the post-determination refugee claimants in Canada class" means an immigrant in Canada who if removed to a country to which the immigrant could be removed would be subjected to an objectively identifiable risk, which risk would apply in every part of the country and would not be faced generally by other individuals in or from that country; to the immigrant's life, other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care.
· As defined in the regulations, I cannot consider risk for these applicants because they feel they will not receive adequate medical care. The medical care in Ukraine may not be the health care of choice for the applicants, however, state care is offered to all citizens who are registered in that area and is free of charge.
· Therefore it is my decision that the applicants would not face an objectively identifiable risk of threat to life, inhumane treatment or extreme sanctions that would apply in every part of the country and would not be faced generally by other individuals in or from that country.
THE ISSUES
[15] Mr. and Mrs. Mazuryk raise four issues with respect to the PCDO's decision:
1. Whether the PDRCC legislation contravenes section 7 of the Charter in excluding from the analysis of "personalized and objectively identifiable" risk faced by a refused refugee claimant, "risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care"?
2. Whether the PDRCC legislation contravenes section 15 of the Charter, and subsection 3(f) of the Act, in that it discriminates against the Applicants due to the female Applicant's physical disability?
3. Whether the exclusion of health care concerns from the PDRCC risk analysis is a reasonable limit which can be "demonstrably justified in a free and democratic society' in accordance with section 1 of the Charter?
4. Whether the PCDO's decision was made unfairly because the PCDO relied, in part, upon extrinsic evidence for her decision, and the Applicants were not given an opportunity to reply to this evidence?
[16] The respondent raised a preliminary objection that neither applicant had filed an affidavit in support of this proceeding. Rather, the affidavit of a law student in the office of the applicants' solicitor was filed. The affidavit was based on the student's review of the solicitor's file and attached documents contained in the file.
[17] The affidavit was said, therefore, not to comply with Rules 12(1) and 10(2)(d) of the Federal Court Immigration Rules, 1993 SOR/93-22.
[18] This omission was said to underscore the lack of an evidentiary basis for the application. By way of example, the respondent said that there is no evidence that Mrs. Mazuryk would face "immediate death" if returned to Ukraine or is in a "terminal state", both as alleged in the applicants' written submissions.
ANALYSIS
(i) The Absence of an Affidavit Sworn by an Applicant
[19] The applicable rules are Rule 10(2)(d) and Rule 12(1) of the Federal Court Immigration Rules. They provide:
| 10(2) The applicant shall serve on every respondent who has filed and served a notice of appearance, a record containing the following, on consecutively numbered pages, and in the following order [...] (d) one or more supporting affidavits verifying the facts relied on by the applicant in support of the application, |
10(2) Le demandeur signifie à chacun des défendeurs qui a déposé et signifié un avis de comparution un dossier composé des pièces suivantes, disposées dans l'ordre suivant sur des pages numérotées consécutivement : [...] d) un ou plusieurs affidavits établissant les faits invoqués à l'appui de sa demande, |
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12. (1) Affidavits filed in connection with an application shall be confined to such evidence as the deponent could give if testifying as a witness before the Court. |
12. (1) Tout affidavit déposé à l'occasion de la demande est limité au témoignage que son auteur pourrait donner s'il comparaissait comme témoin devant la Cour. |
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[20] I am not prepared to dismiss the application for judicial review on this basis. The affidavit of the law student properly establishes the fact of the PDRCC application and its linkage to the applicants so as to found the jurisdiction of the court to review the decision on the record before the PCDO.
[21] Having said that, the practice of having a third party and not an applicant swear supporting affidavits is poor practice. Evidence not based on personal knowledge and not otherwise admissible pursuant to the common-law exceptions to the hearsay rule ought to be given no weight. It is also to be remembered when considering the content of an affidavit in support of judicial review that evidence not before the decision maker is only admissible in very limited circumstances as, for example, where it is needed to establish a breach of natural justice.
(ii) A Proper Understanding of the PCDO's Decision
[22] Before embarking on the Charter arguments urged by counsel for the applicants, it is necessary to consider carefully the conclusions of the PCDO.
[23] The definition of a member of the PDRCC Class in the part material to this application speaks to a person who, among other things, if removed to a country would be subject to an objectively identifiable risk to his or her life other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care.
[24] In determining that the applicants would not face an objectively identifiable risk of threat to life the PCDO wrote:
As defined in the regulations, I cannot consider risk for these applicants because they feel they will not receive adequate medical care. The medical care in Ukraine may not be the health care of choice for the applicants, however, state care is offered to all citizens who are registered in that area and is free of charge.
[25] I find two conclusions to be derived by the PCDO in that statement. First, the conclusion of law that a risk to life caused by the inability of a country to provide adequate health or medical care is not a risk which the PDRCC Class is designed to provide protection against. Second, the conclusion of fact that the level of medical care provided by Ukraine is not so inadequate as to cause a risk to Mrs. Mazuryk's life.
[26] Both findings were relevant to a proper consideration of the PDRCC application. Mrs. Mazuryk was required to establish a serious risk to her life in order to fall within the definition. If that risk was established the PCDO would be required to consider if the risk was caused by the inability of the country to provide adequate health or medical care.
[27] That the PCDO considered the level of health or medical care provided in Ukraine is reflected in her analysis of the documentary evidence on medical care. That the PCDO did not consider the level of health or medical care provided to lead to a risk to life is reflected in the PCDO's decision letter where she wrote "I have examined your case to determine whether you would be subjected to a serious personal risk to your life ... if you were required to leave Canada. I have determined that you would not be exposed to [that risk] if you were returned to Ukraine."
(iii) Was the PCDO's Conclusion that Mrs. Mazuryk Would Not Be Subjected to a Serious Personal Risk to Her Life One Reasonably Open to the PCDO?
[28] The material before the PCDO consisted of the PDRCC submission, the applicants' PIF, the decision and reasons of the CRDD, the 1999 U.S. Department of State Human Rights Report for 1999, Ukraine, and an article from The Ukrainian Weekly dated October 17, 1999. Contained in those materials were the following:
· The statement of the CRDD as to the evidence before it that Mrs. Mazuryk qualified for a disability pension and was able to obtain medication in Ukraine, albeit at a higher price than others.
· The assertions in the PDRCC submission on the applicant's behalf which went no further than that based on the medical opinion Mrs. Mazuryk "would suffer greatly should she be forced to travel to the Ukraine"; "even if she were to make the long trip successfully, it is not likely that Mrs. Mazuryk would obtain the medical attention she needs owing to the discrimination she would face as an evangelical Christian, and would therefore continue to face serious risk to her life and well-being"; and "as evidenced by the fact of the Mazuryks' recent travels to the U.S. for treatment, there is a lack of appropriate health facilities for Parkinson's patients in Ukraine".
· The medical report quoted above.
[29] Noticeably absent was evidence supporting the applicants' concerns as to the health facilities provided for Parkinson's patients in Ukraine and evidence relating to Mrs. Mazuryk's thyro-toxicosis condition. While reliance was placed on discrimination Mrs. Mazuryk was said to face as an evangelical Christian in Ukraine, no explanation was provided as to why medication previously available to her in Ukraine would no longer be available.
[30] On the evidence before her the PCDO could reasonably conclude that the applicants would not be exposed to a serious personal risk to Mrs. Mazuryk's life.
[31] The only argument advanced by the applicants in this application for judicial review relevant to this conclusion was that the PCDO quoted extrinsic information on medical care in Ukraine from a document that was not provided to the applicants' counsel for reply. This document was also said to have been selectively quoted by the PCDO to the applicants' detriment.
[32] The Federal Court of Appeal held in Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461, that fairness does not require a PCDO to disclose in advance of the decision documents relied upon from public sources in relation to general country conditions which were available at the time submissions were made to the PCDO by the applicant. I am satisfied that the article from the Ukrainian Weekly falls within this category of document.
[33] In addition, while the PCDO did not quote the article in its entirety I find the statements omitted from the article to be innocuous.
[34] Therefore, no breach by the PCDO of the duty of fairness has been established.
CONCLUSION
[35] Having found that the PCDO reasonably concluded, as a matter of fact, that the applicants had not shown a serious personal risk to Mrs. Mazuryk's life if they were required to leave Canada, it is unnecessary to consider the alleged Charter violations. Even if it were found that the impugned provisions violated the Charter, which I doubt, the PCDO's decision would still stand on the factual ground.
[36] In any event, the applicants' premise their Charter challenges upon the assertion that Mrs. Mazuryk's return to Ukraine would result in her immediate death. In the face of this "clear personalized risk to life" that is said to be faced by Mrs. Mazuryk, her exclusion from the PDRCC Class is said to constitute a violation of section 7 of the Charter. With respect to section 15 of the Charter, while it is acknowledged that the exclusion caused by the inability of a country to provide adequate health or medical care applies to all applicants in the PDRCC Class, its impact on the applicants is alleged to be discriminatory due to Mrs. Mazuryk's physical disability. It is argued that whereas other rejected PDRCC applicants might also be at risk of not being able to access adequate health care upon returning to their country of origin, this affects their "quality of life" not resulting in their immediate death, as it would be for Mrs. Mazuryk.
[37] However, as argued by the Minister in his preliminary objection, the medical evidence before the PCDO and this Court set out in paragraph 9 above does not support those assertions.
[38] The Supreme Court of Canada has been explicit that Charter decisions are not to be made in a factual vacuum. See, for example, MacKay v. Manitoba, [1989] 2 S.C.R. 357.
[39] Here, where the applicants rely upon the effect of the legislation upon Mrs. Mazuryk, the absence of a proper evidentiary basis to support their argument is a flaw fatal to their application.
[40] For these reasons, the application for judicial review will be dismissed.
[41] Counsel for the applicants sought certification of a number of questions as framed in the Notice of Constitutional Question. In view of the fact that I have concluded that the case turns on the specific evidence before the PCDO and her conclusion that there was no serious personal risk to Mrs. Mazuryk's life, and in view of my conclusion that there is no evidentiary basis for the Charter arguments as presented by the applicants, no question will be certified.
ORDER
IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
2. No question is certified.
"Eleanor R. Dawson"
Judge
Toronto, Ontario
March 7, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-6116-00
STYLE OF CAUSE: ANTONINA IVANOVNA MAZURYK and VIKTOR SAVELYEVICH MAZURYK
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, DECEMBER 4, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: DAWSON J.
DATED: THURSDAY, MARCH 7, 2002
APPEARANCES BY: Ms. Geraldine Sadoway
For the Applicants
Mr. Stephen H. Gold
For the Respondent
SOLICITORS OF RECORD: Geraldine Sadoway
Parkdale Community Legal Services
1266 Queen Street West
Toronto, Ontario
M6K 1L3
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020307
Docket: IMM-6116-00
BETWEEN:
ANTONINA IVANOVNA MAZURYK and VIKTOR SAVELYEVICH MAZURYK
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER