Docket: IMM-4606-16
Citation:
2017 FC 464
[ENGLISH TRANSLATION]
Ottawa, Ontario, May 8, 2017
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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MASHALA LUSE
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Applicant
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and
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MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant, a national of the Democratic
Republic of the Congo [DRC], has schizophrenia. He arrived in Canada in 2004 at
the age of 19 years old, but he lost his permanent resident status in 2015 for
serious criminality. He is subject to a deportation order and fears for his
life or his safety if he returns to his native country where, he says, persons
who suffer from mental health issues are discriminated against by the State and
persecuted by the population because, in Africans’ perception, mental pathology
is attributed to supernatural causes. In the doctors’ opinion, if he is removed
to the DRC, without the appropriate medication, the applicant could have a
decompensation episode, have a severe psychotic relapse, and become agitated
and aggressive. Also, without access to adequate care and treatment in the DRC,
the applicant, who has a substance abuse problem—alcohol and drugs—, will
relapse and his behaviour could lead him to prison where the detention
conditions are in themselves extreme and inhumane for a person suffering from
mental problems.
[2]
The applicant is now seeking the judicial review
of the decision dated September 30, 2016, by J. Martel, senior immigration
officer [officer], dismissing his pre-removal risk assessment [PRRA] application.
The officer found that the applicant had not demonstrated that there is more
than a mere possibility of persecution within the meaning of section 96 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], or that there are
substantial grounds to believe that he would be subject to torture, a risk to
his life or to a risk of cruel and unusual treatment or punishment within the
meaning of section 97 of the IRPA, if he were to return to his country of
origin.
[3]
The applicant argues that the officer
disregarded the medical evidence in the record and minimized the consequences
of his schizophrenia diagnosis, as well as the risks of returning to the DRC.
Also, the officer erred in law by requiring the applicant to demonstrate, under
section 96 of the IRPA, that persons who suffer from mental illness are
systematically targeted for persecution. The respondent, on the other hand,
defends the reasonableness of this decision in that the evidence submitted by
the applicant is simply insufficient to establish the alleged risks, and that
the officer did not err in the application of section 96 of the IRPA, even if
he used the expression [translation]
“systematically targeted”.
[4]
It is the standard of reasonableness that
applies to the officer’s findings of fact, while the standard of correctness
applies to the determination of the burden of proof under section 96 of the
IRPA.
[5]
It has been consistently held that the applicant
must provide evidence on all the elements of his application. Specifically, in
regard to a PRRA application, the onus is on the applicant to provide the
officer with all the evidence necessary for the officer to make a decision (Lupsa
v Canada (Citizenship and Immigration), 2007 FC 311, 159 ACWS (3d) 419 at
para 12 [Lupsa] citing Cirahan v Canada (Solicitor General), 2004
FC 1603, [2004] FCJ No. 1943 (QL) at para 13). If the evidence is insufficient,
the applicant must bear the consequences, (Lupsa at para 13 citing Selliah
v Canada (Minister of Citizenship and Immigration), 2004 FC 872, [2004] FCJ
No. 1134 (QL) at para 22 and Yousef v Canada (Citizenship and Immigration),
2006 FC 864, [2006] FCJ No.1101 at para 33).
[6]
In the case at bar, the issue of the applicant’s
mental health is determinative. Both parties agree that it is the Court’s
responsibility to determine whether the officer’s dismissal of, or assignment
of minimal weight to, the medical evidence in the record constitutes an
acceptable outcome that is defensible in respect of the evidence in the record
and the applicable law. In fact, an individual’s mental condition is a relevant
risk factor that must be examined in the context of a PRRA application. Given
that subparagraph 97(1)(b)(iv) excludes protection only when the inability to
provide adequate medical care is the direct cause of the apprehended fear, the
officer had to ask in particular whether the lack of adequate care or the
prohibitive cost of medications used to managed to the symptoms of
schizophrenia, in this context, could expose the applicant to a risk to his life
or to a risk of cruel and unusual treatment or punishment if he were forced to
return to the DRC (Lemika v Canada (Citizenship and Immigration),
2012 FC 467 at paras 27–30 [Lemika]; Ferreira v Canada (Citizenship
and Immigration), 2014 FC 756 at paras 10–14).
[7]
There are grounds to intervene in this case,
because the officer’s decision was unreasonable as a whole, and the officer
erred in assessing the burden of proof under section 96 of the IRPA.
[8]
First, it is not disputed that the applicant
suffers from auditory hallucinations that compel him to act in a way that could
compromise his own safety or the safety of others, and that, indeed, the
applicant had been hospitalized after drinking bleach following a psychotic
episode. The applicant was still in treatment in December 2015, when he
appeared before the Immigration Division [ID], following the inadmissibility
report prepared by an immigration officer pursuant to section 44 of the IRPA,
and the removal order issued in October by the Minister of Public Safety and
Emergency Preparedness. This explains why the ID could not proceed earlier and
why it had to appoint a designated representative for the applicant. On that
point, a [translation] “summary sheet” dated August 11, 2015, from the Jewish
General Hospital in Montréal, issued by the applicant’s attending physician, Dr.
K. Geagea, and psychology intern, Anne Holding, confirms the applicant’s
schizophrenia diagnosis, his dependence on drugs and alcohol, his depression,
as well as the medications that he was taking at the time of his assessment,
while a letter dated August 18, 2015, from the Centre NuHab Inc. certifies that
the applicant was admitted there for a minimum six-month treatment.
[9]
Second, in a letter dated August 3, 2016, filed
in support of the pre-removal risk assessment [PRRA] application, two
psychiatrists from the Jewish General Hospital in Montréal, Doctors Zoë Thomas
and G. Eric Jarvis—the applicant having been assessed on July 13, 2016, by the
Cultural Consultation Service [SCC] of the Jewish General Hospital in Montréal—confirm
that the applicant developed schizophrenia shortly after his arrival in Canada
and that his illness had not been treated for about ten years. The specialists
suggested that the crimes that led to his inadmissibility could have been
caused by auditory hallucinations, such that the applicant could have been
found not criminally responsible, but for his former counsel’s negligence. Both
specialists insist on the fact that the applicant’s situation could deteriorate
if he does not take the appropriate medication, especially since there is a
danger that he will end up on the street in the DRC and have new psychotic
episodes and become aggressive toward himself and others. The specialists refer
in particular to the recent suicide attempt where the applicant consumed bleach
under the effect of these auditory hallucinations.
[10]
The officer said that he had considered the
medical evidence in the record. Although the officer does not dispute the
schizophrenia diagnosis or the expertise of the two specialists, this did not
preclude the officer from questioning the fact that the applicant had suffered
from schizophrenia since his arrival in Canada in 2004, and since the two
specialists only assessed the applicant in July 2016, he dismissed the opinion
that the applicant could have been found not criminally responsible, but for
his former counsel’s negligence. As for the bleach incident, the officer
considers that it was an isolated incident and suggests that the applicant
could just as well have been under the influence of other substances proscribed
by his condition. Also, the information in the record is not sufficient to find
that if he were to return to DRC, without medication, the applicant could
relapse and could run the risk of being arrested and detained by the
authorities for criminal behaviour.
[11]
I agree with applicant’s counsel that the
medical evidence in the record could not be arbitrarily dismissed by the
officer. According to this unrefuted evidence from the two mental health specialists,
the applicant is a schizophrenic who has not been treated for many years.
Whether or not the applicant developed this illness when he arrived in Canada,
the serious symptoms and auditory hallucinations that tormented him and that
still torment him are no less real. In the opinion of the two specialists, it
is practically impossible for the applicant to refuse to obey the voices that
order him to do things that are harmful, if not criminal. Objectively speaking,
the associated risks in such circumstances are corroborated by the recent
episode that led to the applicant’s hospitalization because he received the
order to kill himself by drinking bleach. Although it is hypothetical to ask
now whether the applicant could have been acquitted based on mental incapacity,
the fact remains that, without medication, the applicant is likely to have new
psychotic episodes in the very short term. Whether the applicant commits new
criminal acts because he is in crisis or because he is under the influence of
proscibed drugs, the fact remains that there is a risk that this problem will
occur in the DRC if the applicant is without assistance—he currently lives with
his parents in Canada—and does not have access to medication or appropriate
treatment because of their exorbitant cost in the DRC, which is indeed well-documented
by the evidence in the record.
[12]
The applicant also submits that the officer
required a burden of proof that is more onerous than the one required under
section 96 of the IRPA (“more than a mere possibility
of persecution”). Although the respondent relies on the fact that, at
the end of the decision, the officer did indeed state the correct evidentiary
standard that applies to section 96 of the IRPA, this does not change the fact
that, when we read the decision as a whole, it indeed appears that the officer
required a more onerous burden of proof than the one required by law or by the jurisprudence.
[13]
With regard to the general conditions of the
country, the officer recognizes that persons who suffer from mental illness are
often stigmatized, if not persecuted, and that they can constitute a particular
social group. The officer does not dispute the fact that in Africa, all mental
illness is suspect and that persons who suffer from it can be subject to irrational
accusations of witchcraft. The documentation in the record also refers to many
cases of discrimination, lynching, and assault toward individuals with physical
or mental handicaps. However, according to the officer, this objective evidence
is not sufficient to persuade him that the applicant discharged [translation] “his
burden of proving that he could be the victim of persecution in the DRC because
of his mental health”, because [translation]
“it is not clear that persons who suffer from
mental illness in the DRC are now systematically targeted”
[Emphasis added]. In fact, according to the officer, [translation] “the applicant’s
profile [is not consistent] with the profile of someone who is persecuted, or
otherwise targeted, in the DRC because of his mental illness”. According
to the officer, the categorization of [translation]
“witch” most often affects children in
urban areas, and older women in rural areas. Also, even though the incidents of
witchcraft accusations are widespread in the DRC and that the persons suffering
from mental illness are no exception, adults are not part of a group that is
particularly affected. In doing so, the officer made a reviewable error.
[14]
At best, the officer’s reasoning is not clearly
articulated and suggests a certain laxity in the understanding of the
distinguishing criteria for the analysis of evidence of persecution or
apprehension of danger that we find in sections 96 and 97 (similarly situated
vs. personalized risk) of the IRPA. In fact, the documentary evidence objectively
demonstrates that the applicant’s membership in a social group of persons
suffering from a mental disorder puts him at risk of persecution on one of the
grounds stated in section 96 of the IRPA. Indeed, the officer accepts that
there is generally, within the Congolese population, an irrational belief
against this particular social group. Yet, it is not because children born with
a mental handicap are considered to be witches that other persons suffering
from the same mental problems are not. On this point, I agree with the
applicant that he did not have to demonstrate to the officer on a balance of
probabilities that persons who suffer from mental illness are “systematically targeted”, but rather that there is “more than a mere possibility of persecution” by the
civilian population, which required the officer to determine whether protection
was available to the applicant in the Congolese State, if necessary.
[15]
Yet, when the officer makes a reviewable error
regarding a fundamental issue, such as the appropriate standard of proof, the
Court must generally return the matter for reconsideration, unless it is
obvious that the PRRA application could not possibly succeed (Alam v Canada
(Minister of Citizenship and Immigration), 2005 FC 4, [2005] FCJ No.15 at
paras 13–16; Fi v Canada (Citizenship and Immigration), 2006 FC 1125,
[2006] FCJ No. 1401 at paras 11–14; and Paz Ospina v Canada (Citizenship and
Immigration), 2011 FC 681, [2011] FCJ No. 887 at paras 31–34).
[16]
For these reasons, this application for judicial
review is allowed. The impugned decision is set aside, and the matter must be
reconsidered by another officer. No question of general importance was proposed
by counsel.
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