Docket: IMM-5233-11
Citation: 2012 FC 468
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 the refusal of his application for
permanent residence on humanitarian and compassionate grounds.
[2]
An
immigration officer determined that Mr. Lemika would not suffer unusual and
undeserved or disproportionate hardship if he were required to obtain a
permanent resident visa from outside Canada.
For the reasons that follow, I am satisfied that the officer erred in assessing
the hardship that Mr. Lemika would face 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
[3]
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.
[4]
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.
[5]
Mr. Lemika
asserted in his H&C application that he would face unusual, undeserved or
disproportionate hardship in the DRC as a result of his mental illness. He says
that he would be unable to access medical treatment, including medication, in
the DRC. This would lead to a deterioration in his mental state and would allow
the symptoms of his illness to emerge.
[6]
Not only
would he be unable to access the necessities of life such as food and shelter
if he were to become ill in the DRC, Mr. Lemika says that 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.
[7]
Moreover,
Mr. Lemika 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.
[8]
Finally,
Mr. Lemika asserts that he would face hardship as a result of targeting at the
port of entry as a returnee, and as a result of the internal armed conflict in
the DRC.
The H&C Decision
[9]
The
immigration officer concluded that Mr. Lemika would not suffer unusual,
undeserved or disproportionate hardship if he were to return to the DRC.
[10]
Accepting
that he had a degree of establishment in Canada as a result of the 16 years that Mr.
Lemika had spent in this country, the officer was not satisfied that his
establishment was due to factors beyond his control, or that severing these
ties would cause him unusual and undeserved or disproportionate hardship.
[11]
The
officer reviewed the evidence and submissions relating to possible hardship in
the DRC, including those related to Mr. Lemika’s schizophrenia. The officer
accepted that Mr. Lemika suffers from a chronic and long-term disability, but
observed that he had been willing to take prescription medication to control
his symptoms in the past.
[12]
Most
importantly, the officer found that treatment, including medication, would be
available to Mr. Lemika in the DRC, particularly in Kinshasa, where his family resides, and where a
specialized psychiatric facility exists.
[13]
The
officer also considered whether Mr. Lemika would face hardship as a result of
targeting at the port of entry as a returnee, or due to the internal armed
conflict generally, concluding that he would not. While acknowledging the
widespread problems in the DRC, the officer found no evidence that Mr. Lemika
would be personally affected by these problems.
[14]
Accordingly,
the officer determined that although Mr. Lemika might face some hardship in
re-establishing himself in the DRC, there were insufficient humanitarian or
compassionate grounds to warrant a humanitarian and compassionate exemption.
Standard of Review
[15]
I agree
with the parties that the officer’s decision is to be reviewed against the
standard of reasonableness: Kisana v. Canada (Minister of Citizenship and
Immigration),
2009 FCA 189, [2010] 1 F.C.R. 360 at para. 18; Paz v. Canada (Minister of Citizenship and
Immigration),
2009 FC 412, 176 A.C.W.S. (3d) 1124.
[16]
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
[17]
While
recognizing that deference is to be accorded to decisions such as the one in
issue in this case, I am nevertheless satisfied that the officer erred in
assessing the hardship that Mr. Lemika would face in the DRC as a result of his
mental illness.
[18]
In
concluding that Mr. Lemika would be able to access medical care in the DRC, 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”.
[19]
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.
[20]
The documentary
evidence before the officer indicates that the few mental health facilities 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
before the officer was that the limited mental health care that is available in
the DRC is generally only accessible to those who can pay for it.
[21]
There was
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.
[22]
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.
[23]
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.
[24]
This
finding then led the officer to conclude that by seeking medical treatment, Mr.
Lemika could avoid problems resulting from impunity and poor prison conditions
in the DRC.
[25]
However,
there was evidence before the officer to indicate that the consequences for Mr.
Lemika if he is unable to access proper medical care in the DRC are potentially
life-threatening and non-speculative.
[26]
When
untreated, Mr. Lemika’s illness has led to aggressive behaviour that has
brought him into contact with police and criminal justice system in Canada. There is no reason to
believe that this would not happen in the DRC if he was unable to access
appropriate medical treatment. However, the consequences for Mr. Lemika, if he
were arrested and detained in the DRC, would be very different.
[27]
The
evidence before the officer regarding prison conditions in the DRC is horrific.
For example, a 2010 United States Department of State Report describes prison
conditions in the DRC as “severe and life-threatening”. Food is not provided to
detainees, who are dependant on family members for nourishment, and prisoners
regularly die of starvation.
[28]
The
evidence 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.
[29]
While the
immigration officer appears to have been aware of problems with prison
conditions in the DRC, the finding with respect to Mr. Lemika’s ability to
access medical care meant that the officer did not consider whether the risk of
imprisonment resulting from his untreated schizophrenia amounted to unusual,
undeserved or disproportionate hardship.
[30]
I am thus
satisfied that the officer’s decision was unreasonable. Given my conclusion in
relation to this issue, it is not necessary to address the other sources of
hardship identified by Mr. Lemika.
Conclusion
[31]
For these
reasons, the application for judicial review is allowed. I agree with the
parties that the case does not raise a question for certification.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different immigration officer for re-determination; and
2. No serious question of general
importance is certified.
“Anne Mactavish”
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