Ottawa, Ontario, March 23, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
AND IMMIGRATION
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.
« Michel Beaudry »
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3727-06
STYLE OF CAUSE: DMITRI ZLOBINSKI and THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 15, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: Beaudry J.
DATED: March 23, 2007
APPEARANCES:
Lorne Waldman FOR APPLICANT
Robert Bafaro FOR RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates FOR APPLICANT
Toronto, Ontario
John Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada