Docket: IMM-5228-11
Citation: 2012 FC 467
Ottawa, Ontario, April 20,
2012
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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ROGER AGWAME LEMIKA
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Roger
Agwame Lemika seeks judicial review of a negative pre-removal risk assessment
(PRRA). I agree with Mr. Lemika that the PRRA Officer erred in assessing the
risk that he faces in the Democratic Republic of Congo (DRC) as a result of his
major mental illness. As a result, the application for judicial review will be
allowed.
Background
[2]
Mr. Lemika
suffers from schizophrenia. His illness is evidently well controlled with
medication. However, when untreated, Mr. Lemika can become agitated,
aggressive and psychotic. The record indicates a history of suicide attempts,
and makes reference to Mr. Lemika’s delusional belief that he is the son of God
and has special powers.
[3]
Although
he was employed for some time after his arrival in Canada, it appears that Mr. Lemika’s illness
led to him being unemployed and homeless for a number of years. The illness has
also brought Mr. Lemika into contact with the criminal justice system.
[4]
Mr. Lemika
asserted in his PRRA application that he would be at risk in the DRC as a
result of his mental illness.
[5]
He further
submitted that he was not excluded from protection by paragraph 97(1)(b)(iv) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which
precludes a finding of risk to life or of cruel and unusual treatment “caused
by the inability of [the country of origin] to provide adequate health or
medical care”.
[6]
Mr. Lemika
asserted that the harm he fears is not his inability to access medical care as
such, but rather that his lack of access to medical care increased the risk of
persecution that he faced from state security forces and his fellow citizens as
a result of his untreated illness.
[7]
Mr. Lemika
submitted that his inability to access medical treatment, including medication,
in the DRC would lead to a deterioration in his mental state and would allow
the symptoms of his illness to emerge.
[8]
His
illness would render Mr. Lemika unable to access the necessities of life such
as food and shelter. Moreover, the manifestation of his symptoms could include
bizarre behaviour on his part that could lead to his arrest and detention by
state security officers. If arrested, Mr. Lemika says that he would be held in
prison conditions that are extreme and potentially life-threatening.
[9]
Mr. Lemika
also says that the general population in the DRC does not understand mental
illness. The mentally ill are often viewed as victims of spells and are treated
with prayer or sorcery. According to Mr. Lemika, these societal attitudes would
also put him at risk if he began to exhibit bizarre behaviour in the DRC. In
addition to social ostracism, Mr. Lemika says that he risks ill-treatment at
the hands of his compatriots on account of his illness.
[10]
Finally,
Mr. Lemika asserts that he faces a risk of targeting at the port of entry as a
returnee, and as a result of the internal armed conflict in the DRC.
The
PRRA Decision
[11]
The PRRA
Officer reviewed the evidence regarding Mr. Lemika’s psychiatric condition and
medical treatment history. The Officer accepted that Mr. Lemika suffers from a
chronic and long-term disability, but concluded that his mental illness can be
controlled with prescription drug treatment, and that he has been willing to
accept such treatment in the past.
[12]
The
Officer pointed to evidence that treatment for mental disorders is available
through the DRC’s primary health care system, finding that Mr. Lemika would not
be denied medical treatment in the DRC “for any reason”. As a result, the
officer concluded that Mr. Lemika was not a person in need of protection for
the purposes of section 97 of IRPA.
[13]
The
Officer further concluded that Mr. Lemika was not wanted for questioning,
arrest or detention in the DRC. Nor was the Officer persuaded that Mr. Lemika
would be targeted by any person within the context of the armed conflict in
that country. Finally, the Officer was also satisfied that, in any event,
adequate state protection would be available to Mr. Lemika in the DRC.
Standard of Review
[14]
I agree with the parties that the Officer’s decision is to be reviewed
against the standard of reasonableness: see Buchung v. Canada (Minister of Citizenship and
Immigration), 2009 FC 381, 79 Imm. L.R. (3d) 94 at
para. 26; Perea v. Canada (Minister of Citizenship and Immigration), 2009 FC 1173, [2009] F.C.J. No. 1472 (QL) at paras. 23-24.
[15]
In
reviewing a decision against the reasonableness standard, the Court must
consider the justification, transparency and intelligibility of the
decision-making process, and whether the decision falls within a range of
possible acceptable outcomes which are defensible in light of the facts and the
law: see Dunsmuir v. New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190 at para. 47, and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 59.
Analysis
[16]
The
foundation of the PRRA Officer’s decision is the determination that Mr. Lemika
would not be denied the medical care that he requires for his schizophrenia in
the DRC.
[17]
In coming
to this conclusion, the Officer noted that “mental health is part of the
primary care system in the Democratic Republic of Congo, and that the treatment
of severe mental disorders is available at the primary level”. The Officer
also observed that “[t]here is one mental health care centre and about twenty-two
psychiatrists in the capital city [of Kinshasa]”
and that “[c]ompetent doctors practice on the spot, with medicines which are
normally available”.
[18]
All of
these statements are borne out by the evidence. What the Officer does not
consider is whether this treatment would actually be available to Mr. Lemika,
were he to return to the DRC.
[19]
The
documentary evidence before the Officer indicates that the few mental health
facilities that there are in Kinshasa lack the specialists to treat
schizophrenia, and that medication to treat psychiatric patients is often too
expensive for the patient. Indeed, the thrust of all the documentary evidence
that was before the Officer is that the limited mental health care that is
available in the DRC is generally only accessible to those who can pay for it.
[20]
There was
some evidence before the Officer to indicate that hospitals may, in some cases,
provide an initial consultation, diagnosis and treatment free of charge. After
that, however, it appears that the patient will be responsible for the ongoing
cost of his or her own treatment.
[21]
No
disability benefits are available to persons with mental disorders in the DRC,
and Mr. Lemika is estranged from his family. There was, moreover, no evidence
before the Officer that the family would have either an interest in or the
means to assist Mr. Lemika with his medical expenses.
[22]
As a
result, I am satisfied that the Officer’s finding with respect to Mr. Lemika’s
ability to access mental health care was made without regard to the evidence in
the record.
[23]
The result
of the Officer’s finding regarding Mr. Lemika’s ability to access mental health
care was that the Officer did not assess whether the risks asserted by Mr.
Lemika were in fact “caused by the inability of [the country of origin] to
provide adequate health or medical care” for the purposes of paragraph
97(1)(b)(iv) of IRPA.
[24]
Typically,
cases under paragraph 97(1)(b)(iv) of IRPA involve situations where
life-saving medical treatment such as kidney dialysis is unavailable or unaffordable
in the PRRA applicant’s country of origin: see, for example, Covarrubias v.
Canada (Minister of Citizenship and Immigration), 2006 FCA 365, [2007] 3
F.C.R. 169 (QL) (F.C.A.).
[25]
That is,
the risk asserted by the PRRA applicant in such cases is that his or her
inability to access medical care will directly cause the apprehended harm.
[26]
This case
is somewhat different.
[27]
The harm
that Mr. Lemika apprehends in the DRC is not that his inability to access
health care will itself cause a risk to his life or cruel and unusual
treatment. Rather, Mr. Lemika says that if he cannot access treatment, his
health will decline, and he will start to experience symptoms of his
schizophrenia. These symptoms may include disordered thinking, delusions,
psychosis, and aggressive or bizarre behaviour.
[28]
It is the
manifestation of the symptoms of his illness that Mr. Lemika says will likely
attract the attention of state security officials and result in his arrest and
detention, thus exposing him to life-threatening prison conditions. His unusual
behaviour will also attract the attention of Mr. Lemika’s fellow citizens, and
will result in his inability to access the necessities of life, social
ostracism and abuse.
[29]
The nature
of Mr. Lemika’s claim requires an assessment of causation. That is, is the harm
apprehended by Mr. Lemika “caused by the inability of [the DRC] to provide
adequate health or medical care”, or does the apprehended intervening actions
of third parties mean that the harm is sufficiently removed from the initial
inability to access medical care as to escape the purview of paragraph
97(1)(b)(iv) of the Immigration and Refugee Protection Act?
[30]
This
determination involves an assessment of the facts of this case, and is one that
should properly be made in the first instance by a PRRA Officer.
[31]
This then
leads us to the Officer’s alternative finding, which is that, in any event,
adequate state protection would be available to Mr. Lemika in the DRC.
[32]
In support
of this finding, the Officer includes more than four pages of extracts from the
2010 United States Department of State Report. Although there are passing
references made to efforts to combat impunity in the report, the extracts paint
an almost uniformly grim picture of conditions within the DRC.
[33]
The report
notes that “state security forces continued to act with impunity throughout the
year committing many serious abuses”. These abuses are reported to include
arbitrary arrests and detention in “severe and life-threatening” conditions.
Food is not provided to detainees, who are dependant on family members for
nourishment, and prisoners regularly die of starvation.
[34]
The DOS
report also shows that medical care is often unavailable to prisoners, and
infectious diseases are rampant. Cells may have no windows, running or potable
water, lights, electricity or toilet facilities. Sexual violence is prevalent,
as are sexually transmitted diseases, including HIV/AIDS.
[35]
The report
also indicates that soldiers face “‘no risk of punishment’ for abuses, partly
due to their anonymity”.
[36]
Nevertheless,
without any real analysis of this evidence, the Officer concluded that Mr.
Lemika had not provided clear and convincing evidence to rebut the presumption
that the DRC will be able to protect its citizens. This aspect of the Officer’s
decision thus lacks the justification, transparency and intelligibility
required of a reasonable decision.
[37]
Moreover,
recourse to the record does not assist in supplementing the Officer’s decision,
as the other documentary evidence before the Officer regarding conditions in
the DRC is itself almost uniformly grim.
[38]
I am thus
satisfied that the PRRA Officer’s decision was unreasonable. Given my
conclusion on this issue, it is not necessary to address the other sources of
risk identified by Mr. Lemika.
Conclusion
[39]
For these
reasons, the application for judicial review is allowed.
[40]
Mr. Lemika
has proposed a question for certification relating to the interpretation of
paragraph 97(1)(b)(iv) of the Immigration and Refugee Protection Act. I
am not persuaded that the question proposed would be dispositive of an appeal,
in light of my conclusion that the applicability of this provision requires a
factual assessment of causation that should properly be made by a PRRA Officer
in the first instance. As a result, no question will be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different PRRA Officer for re-determination; and
2. No serious question of general importance
is certified.
“Anne
Mactavish”
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