Docket: IMM-2361-15
Citation:
2015 FC 1394
Ottawa, Ontario, December 18, 2015
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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KOFI BOAKYE
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial
review of a decision of an immigration officer (“Officer” or “PRRA Officer”) of
Citizenship and Immigration Canada, dated March 23, 2015, in which the Officer
denied the Applicant’s Pre-Removal Risk Assessment (PRRA) pursuant to ss 112
and 113 of the Immigration and Refugee Protection Act, SC 2001, c 27
(IRPA).
[2]
The Applicant is a 31 year old citizen of
Ghana. He came to Canada in 1998 as a permanent resident having been sponsored
by his mother. In 2005, the Applicant was convicted of three criminal
offences. In 2008, he was diagnosed with Psychotic Disorder Not Otherwise
Specified and suspected schizophrenia (Certified Tribunal Record, p 130). This
diagnosis was confirmed in 2013. Also in 2008, the Immigration Division of the
Immigration and Refugee Board of Canada (“IRB”) found that the Applicant was
criminally inadmissible to Canada and, on January 31, 2008, a deportation order
was issued against him. The Applicant appealed the deportation order and on
May 9, 2009, his removal was stayed by the Immigration Appeal Division of the
IRB for three years. However, the Applicant reoffended and was convicted on
May 30, 2014. On July 30, 2014, the stay of his removal was cancelled and the
appeal of his January 2008 deportation order was terminated by operation of law
pursuant to s 68(4) of the IRPA. On October 21, 2014, the Applicant applied
for a PRRA based on his belief that his life would be at risk in Ghana because
he suffers from schizophrenia. On March 23, 2015, the PRRA Officer rendered a
negative decision which is the subject of this application for judicial review.
[3]
In his decision, the PRRA Officer stated that the
Applicant’s submissions were based on his belief that his life would be at risk
in Ghana because he suffers from schizophrenia. Further, the Officer noted the
Applicant’s submission that he has no immediate family in Ghana to assist him
and that inadequate treatment would place him at risk of being stigmatized
and/or discriminated against. He also noted counsel’s submission that Ghana’s
inability to provide adequate health care would result in his illness being
untreated, likely rendering the Applicant homeless.
[4]
The PRRA Officer found that he had been provided
with insufficient objective evidence that the Applicant had seen or received
medication from a doctor since June 2012. And, while his independent research
of country conditions clearly indicated that discrimination against persons
with disabilities continues to be a problem in Ghana, it was also clear that
the government was making serious efforts to change this. Because Ghana is a
democracy with a functioning police force and a judicial system capable of
assisting the Applicant should the need arise, the PRRA Officer found that the
Applicant did not meet the requirements of s 96 of the IRPA. Based on the same
evidence, the PRRA Officer found that the Applicant would not be at risk of
torture pursuant to s 97(1)(a) of the IRPA because the risk arose from his
medical condition, it was not pain or suffering inflicted or consented to by
government or its agents and therefore did not fall under the definition of
torture. The PRRA Officer accepted the 2008 diagnosis of a psychotic disorder
not otherwise specified and the possibility that the Applicant’s symptoms
represented the evolution of schizophrenia, but found the risk caused by
Ghana’s inability to provide adequate health or medical care was excluded by s
97(1)(b)(iv) of the IRPA. Further, the absence of a social support network in
Ghana was a humanitarian and compassionate factor which he was not able to consider
in the context of a PRRA.
[5]
The PRRA Officer found that there was
insufficient evidence before him to conclude that the Applicant faces more than
a mere possibility of persecution on any Convention ground. And, on a balance
of probabilities, he found that it is not likely that the Applicant will face a
risk of torture, or a risk to life or cruel and unusual treatment or punishment
upon return to Ghana.
[6]
In light of the PRRA Officer’s finding that
there was insufficient evidence that the Applicant was taking medication, his
counsel submitted a request for reconsideration on May 15, 2015, including a
doctor’s note confirming the Applicant’s recent treatment and ongoing
medication. The Applicant claims that he did not receive a response to his
request. However, since this letter was sent after the PRRA Officer’s decision
was rendered, it was therefore not a part of the record before the PRRA Officer
when he rendered his decision and, for that reason, it is also not to be
considered by this Court when reviewing the Officer’s decision (Assn of Universities and Colleges of
Canada v Canadian Copyright Licensing Agency,
2012 FCA 22 at paras 19-20).
[7]
The Applicant submits that the PRRA Officer erred
by applying a “serious efforts” rather than
operational adequacy test when assessing whether state protection was available
to him (Balogh v Canada (Citizenship and Immigration), 2015 FC 76 at
paras 27-28; Kanto v Canada (Citizenship and Immigration), 2014 FC 628
at para 21; Fazekas v Canada (Citizenship and Immigration), 2013 FC 694
at paras 9-11; Molnar v Canada (Citizenship and Immigration), 2013 FC
296 at para 26; Gulyas v Canada (Citizenship and Immigration), 2013 FC
254 at para 79).
[8]
The Applicant submits that in his PRRA
application he had relied largely on a recent Human Rights Watch (“HRW”) report
on the treatment of persons with mental health issues by psychiatric hospitals
and in prayer camps in Ghana. The Applicant quotes extensively from his counsel’s
submissions in his application for a PRRA, which includes quotes from the HRW
report. Those submissions by counsel state that the report discusses prayer
camps run by private religious organizations where mental health patients are
subjected to various abuses, including denial of food and medicine,
overcrowding, prolonged detention and physical and verbal abuse. And, at
Ghanaian psychiatric hospitals, patients are beaten if they refuse treatment
which often consists of local, traditional remedies or electroconvulsive
therapy. The Applicant also quotes from a recent study on mental health and
discrimination in Southern Ghana in support of his submission that he would be negatively
affected by societal stigmatization, discrimination and the loss of familial
supports.
[9]
According to the Applicant, the documentary
evidence confirms that stigma continues to affect persons living with mental
health issues and that services in psychiatric hospitals constitute cruel and
unusual treatment or punishment. However, the Applicant submits that this
evidence was ignored and, in reliance solely on the United States Department of
State Ghana 2013 Human Rights Report (“US DOS Report”), the PRRA Officer
concluded that the government of Ghana was making serious efforts to change the
treatment of those who suffer from mental illness. However, the PRRA Officer
pointed to no evidence that such efforts have amounted to protection for
persons with mental illness in Ghana; rather, the evidence supports the
opposite conclusion.
[10]
The Respondent submits that the PRRA Officer’s
single reference to serious efforts is taken out of context and is insufficient
to ground an argument that the Officer applied the wrong test. In Barragan
Gonzalez v Canada (Citizenship and Immigration), 2015 FC 502 [Barragan],
Justice Boswell found that the use of the words “serious efforts” was not an
error since it was drawn from the Federal Court of Appeal case, Canada
(Minister of Employment and Immigration) v Villafranca, [1992] FCJ No 1189
(FCA).
[11]
As I have previously stated in Beri v Canada
(Citizenship and Immigration), 2013 FC 854 at para 35, adequate state
protection involves more than making “serious efforts” to address problems and
protect citizens (De Araujo Garcia v Canada (Citizenship and Immigration),
2007 FC 79). Instead, the focus must be on what is actually happening in a
country, that is, evidence of actual or operational level protection, and not
on efforts that a state is endeavouring to put in place (Hercegi v Canada
(Citizenship and Immigration), 2012 FC 250 at para 5).
[12]
There are also many decisions of this Court
which speak to the relevance of legislation in assessing the adequacy of state
protection. As stated by Justice Gagné in Molnar v Canada (Citizenship and
Immigration), 2013 FC 296 at para 26:
[26] Needless to say that the
operational adequacy of state protection is best determined in light of the
most recent evidence put before the panel, rather than through generalities
based on evidence emanating from state authorities about legislative and
procedural measures that the government has, or has attempted to, put in place.
[13]
Similarly in Bautista v Canada (Citizenship
and Immigration), 2009 FC 1187 at para 32, Justice Kelen stated that if
serious efforts of the state are considered, they should be viewed at the
operational capacity level and not only at the legislative stage (citing Elcock
v Canada (Minister of Citizenship and Immigration), (1999) 175 FTR 116 at
para 15).
[14]
In this case the PRRA Officer did not explicitly
state what test for state protection was being applied. And while it is true,
as the Respondent submits, that mere reference to the term “serious efforts”
does not establish that the wrong test was used (Majlat v Canada
(Citizenship and Immigration), 2014 FC 965 at paras 35-36; Medina v
Canada (Citizenship and Immigration), 2008 FC 728 at para 11), the
Respondent’s reliance on Barragan is misplaced. There Justice Boswell stated:
Although it can be an error if the RPD fails
to understand that the seriousness of the state’s efforts must be evaluated at
the operational level (Toriz Gilvaja v Canada (Citizenship and Immigration),
2009 FC 598 at paragraph 39, 81 Imm LR (3d) 165), the RPD cannot be faulted for
couching its analysis in the words used by the Federal Court of Appeal
[15]
In this case, there is nothing in the PRRA
Officer’s decision to suggest that he understood that operational adequacy of
state protection is the correct test for establishing state protection under ss
96 and 97 of the IRPA. Nor is there any suggestion that he applied the
operational adequacy test to the evidence before him. Read as a whole, the
decision suggests that the Officer incorrectly adopted a “serious efforts”
test.
[16]
The PRRA Officer quoted extensively from the US DOS
Report. From it, he concluded that it was clear that “discrimination
against persons with disabilities continues to be a problem in Ghana”,
but that “it is also clear that the government of Ghana
is making serious efforts to change this”. The Officer further states, “I note that the law explicitly prohibits discrimination
against persons with physical, sensory, intellectual and mental disabilities”.
The Officer also references the creation of “several
government agencies” and the involvement of National Government Organizations
to address discrimination against people with disabilities.
[17]
However, as the Applicant points out, the same
US DOS Report, in fact the same section quoted in the PRRA Officer’s decision, acknowledges
criticisms of Ghana’s implementation of its legislative schemes. For example,
The constitution prohibits discrimination on
the basis of race, gender, disability, language or social status; however,
enforcement was generally inadequate.
[…]
Activists supporting the rights of persons
with disabilities, including Voice Ghana (a disability advocacy organization)
complained of slow implementation of the law, especially the lack of
legislative instruments to implement it. Despite legal protection provided in
the law, discrimination against persons with disabilities in employment and
inaccessibility of public buildings continued to be problems.
[18]
The internet articles submitted by the Applicant
to the PRRA Officer also contain evidence pertaining to the operational
ineffectiveness of Ghanian legislation on mental health issues. In the 2014
article from Journalists for Human Rights, “Unavailable and underfunded: mental
healthcare in Ghana”, the author discusses the Mental Health Bill, stating “The massive investment required for the full implementation
of what is in the Bill seems unlikely in the near future”. And, in the
2011 article titled “GHANA: Mental health bill to address stigma”, the chief
psychiatrist in Ghana’s national health service recognized the importance of
implementation, stating “if we pass the bill and we
take steps to implement it, within five years we will see a new face of mental
health in Ghana”.
[19]
Whether the Officer
identified and adopted the proper test for state protection is reviewed on the
correctness standard (Ruano v Canada (Citizenship and Immigration), 2015
FC 1023 at para 35; Koky v Canada (Citizenship and Immigration), 2011 FC
1407, at para 19). The jurisprudence has established a
clear test for state protection and it is not open to the Officer to apply a
different test (Ruszo v Canada (Citizenship
and Immigration), 2013 FC 1004
at para 22 [Ruszo]). In my view, the PRRA Officer failed to
identify and adopt the operational adequacy test in his state protection
analysis. On this ground alone I would grant the application.
[20]
However, even if the Officer had intended to adopt the correct test, he erred
in applying it by accepting evidence that demonstrated the abuses suffered in
Ghana by persons with mental illness and disability, and failing to address
evidence that suggested a lack of operational adequacy in the protection of the
mentally ill in Ghana. Where the question
is whether the officer properly applied the correct test to the evidence on
state protection before him, the standard is reasonableness (Burai
v Canada (Citizenship and Immigration), 2013 FC 565 at para 34; Ruszo at para 22). The
Officer’s focus on Ghana’s serious legislative efforts led to the unreasonable
decision that the Applicant would have access to state protection.
[21]
Given my finding above, I need not address the
Applicant’s further submission that the PRRA Officer erred in failing to
consider s 97(1)(b) of the IRPA. However, before concluding that the
Applicant’s risk flowed from the unavailability of medical treatment,
particularly given the documentary evidence quoted by the PRRA Officer concerning
the treatment of those with mental illness in Ghana, in my view the Officer was
required to assess the nature or cause of the risk based on the facts of the
case (Lemika v Canada (Citizenship and Immigration), 2012 FC 467 at paras
27-30; Ferreira v Canada (Citizenship and Immigration), 2014 FC 756 at
paras 11-13).
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