Date: 20130312
Docket: IMM-4797-12
Citation: 2013
FC 228
Ottawa, Ontario, March 12, 2013
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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PATRICK RAYDON RICHMOND
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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
I. Overview
[1]
Mr
Patrick Raydon Richmond has lived in Canada for twenty years. He moved here
from Guyana when he was 14. Mr Richmond experiences schizophrenia and epilepsy,
and has a history of criminal behaviour and substance abuse. He was ordered to
be deported in 2008 and lost his appeal of that order. He then applied for a
pre-removal risk assessment (PRRA) based on the unavailability of treatment for
mental health issues in Guyana, but the PRRA officer dismissed his application,
finding that Guyana has made mental health care a priority.
[2]
The
officer accepted that Guyana’s efforts and plans to provide more resources for
the mentally ill showed that Mr Richmond would not be denied treatment on the basis
of discrimination. Therefore, he would not experience persecution if he
returned to Guyana. Further, Mr Richmond could not claim protection as a result
of inadequate medical care given that such a claim is excluded by s 97(1)(b)(iv)
of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] (see
Annex).
[3]
Mr
Richmond argues that the officer’s conclusions were unreasonable in light of
the evidence showing the limited mental health resources, and the
stigmatization of the mentally ill, in Guyana. Further, he suggests that the
exclusion for medical claims set out in s 97(1)(b)(iv) of the IRPA does
not apply. Mental health services are limited in Guyana due to discrimination
against the mentally ill, not merely because of a lack of resources. He asks me
to quash the officer’s decision and order another officer to reconsider his
application.
[4]
I
agree that the officer’s decision was unreasonable. The officer referred only
to evidence showing that the situation for the mentally ill in Guyana is improving, and did not point to any particular treatment or facility that Mr
Richmond could seek out. Further, the evidence suggested that the mentally ill
are stigmatized in Guyana, which explains, at least in part, the absence of
adequate treatment options. This means that the exclusion in s 97(1)(b)(iv)
does not apply because there is a discriminatory reason why the state of Guyana does not provide adequate medical resources for the mentally ill.
[5]
The
issues are:
1.
Did
the officer unreasonably conclude that Mr Richmond could receive appropriate
treatment in Guyana?
2.
Did
the officer unreasonably conclude that Mr Richmond’s claim was excluded under s
97(1)(b)(iv)?
II. The Officer’s
Decision
[6]
The
officer recognized that Mr Richmond would experience hardship if he returned to
Guyana. However, the officer found that the evidence showed that “the
government in Guyana is interested and invested in dealing with the
inadequacies of their health care system”. Still, its resources are limited.
However, a lack of resources is not a basis for a claim for protection
according to s 97(1)(b)(iv).
III. Issue One – Did the
officer unreasonably conclude that Mr Richmond could receive appropriate
treatment in Guyana?
[7]
The
Minister submits that the officer reasonably found that the government of Guyana was attempting to deal with mental health issues and to augment the resources
available to patients.
[8]
In
my view, this evidence does not show that adequate mental health care is
currently available in Guyana. It shows that, in the future, appropriate
resources may be available. In fact, the documentary evidence shows that
treatment is severely limited; medication is in short supply; the mentally ill
are stigmatized, discriminated against, and likely to be homeless; and the
police are ill-equipped to deal appropriately with mentally ill persons. Based
on this evidence, the officer’s conclusion that Mr Richmond would not
experience persecution or mistreatment in Guyana was unreasonable.
IV. Issue Two – Did the
officer unreasonably conclude that Mr Richmond’s claim was excluded under s
97(1)(b)(iv)?
[9]
The
Minister submits that Mr Richmond’s claim under s 97 of IRPA is based, in
essence, on the alleged inability of Guyana to provide adequate health care.
However, such a claim is specifically excluded by s 97(1)(b)(iv).
[10]
In
my view, the officer unreasonably concluded that Mr Richmond’s claim was
excluded under s 97(1)(b)(iv). The evidence before the officer showed
that mentally ill persons in Guyana are commonly viewed as “cursed” or
experiencing “spirit possession”. The mistreatment of patients and the
inadequacy of mental health resources derive, at least in part, from
discriminatory attitudes toward those experiencing mental health issues.
[11]
The
Federal Court of Appeal has recognized that the exclusion in s 97(1)(b)(iv)
would not apply where medical care was denied for illegitimate reasons, such as
persecutory grounds (Covarrubias v Canada (Minister of Citizenship and
Immigration), 2006 FCA 365 at para 41). The same, I believe, would be true
where there is a discriminatory basis for the denial of health care. There was
evidence before the officer that suggested that there was pervasive
discrimination against the mentally ill in Guyana. In my view, the officer
should have considered whether this explained, at least in part, the few
resources provided by the state for the treatment of the mentally ill. Absent
that analysis, the officer’s treatment of the relevant evidence was incomplete,
and unreasonable.
V. Conclusion and
Disposition
[12]
In
my view, the officer’s treatment of the evidence relating to the availability
of mental health care in Guyana and the reasons why it was so limited was
inadequate, to the point that the officer’s conclusions were unreasonable.
Therefore, I must grant this application for judicial review and order another
officer to reconsider Mr Richmond’s application. Neither party proposed a
question of general importance for me to certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed;
2.
The
matter is returned to another officer for reconsideration;
3.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act, SC 2001, c 27
Person
in need of protection
97.
(1) A person in need of protection is a person in Canada whose removal to
their country or countries of nationality or, if they do not have a country
of nationality, their country of former habitual residence, would subject
them personally
…
(b) to a risk to their life or to a risk of
cruel and unusual treatment or punishment if
…
(iv) the risk is not caused by the inability of
that country to provide adequate health or medical care.
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Loi
sur l’immigration et la protection des réfugiés (LC 2001, ch 27)
Personne
à protéger
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
[…]
b) soit à une menace à sa vie ou
au risque de traitements ou peines cruels et inusités dans le cas suivant :
[…]
(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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