Docket: IMM-81-13
Citation:
2014 FC 756
Ottawa, Ontario, July 30, 2014
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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FABIAN PHILMORE FERREIRA
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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
I.
Overview
[1]
Before his scheduled return to Jamaica, Mr Fabian Ferreira requested a pre-removal risk assessment (PRRA). The officer
conducting the PRRA concluded that Mr Ferreira had not established that he was
a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] (see Annex).
[2]
In his PRRA application, Mr Ferreira described
his experiences with schizophrenia, which had led him to commit a number of crimes.
He has been in Canada for over 15 years and has no remaining family in Jamaica. He is currently in his early 30s.
[3]
The officer reviewed the risks of harm that
might await Mr Ferreira in Jamaica – lack of care, physical mistreatment,
criminality and harsh incarceration - and concluded that they related primarily
to the inability of Jamaica to provide adequate mental health care to its
citizens. That kind of risk is expressly excluded from recognition under s 97(1)(b)(iv)
of IRPA. In any case, the officer reasoned, the risks Mr Ferreira feared were
speculative. The officer went on to note that mentally ill persons and the
homeless may be discriminated against in Jamaica, but that was not enough to
conclude that Mr Ferreira was exposed to a risk of persecution or serious
mistreatment.
[4]
Mr Ferreira contends that the officer’s decision
was unreasonable because it failed to appreciate that his application was not
based entirely on the inadequacy of mental health care in Jamaica; rather, he also claimed that, due to his symptoms and the lack of family support, he would
undoubtedly be unable to access treatment in Jamaica. As a result, he would be
exposed to a risk of harm as a homeless, crime-prone, mentally ill deportee,
with no material resources or family support.
[5]
I am satisfied that the officer failed to recognize
the particular risks to which Mr Ferreira would be exposed, resulting in an
unreasonable conclusion that Mr Ferreira had not made out a claim for
protection. I must, therefore, allow this application for judicial review.
[6]
The sole issue is whether the officer’s decision
was unreasonable.
II.
The Officer’s Decision
[7]
The officer accepted that Mr Ferreira
experiences schizophrenia. Mr Ferreira, therefore, bore the burden of proving
that the various risks he would face in Jamaica were not the product of
inadequate health care resources there (citing Covarrubias v Canada
(Minister of Citizenship and Immigration), 2006 FCA 365). The officer found
that the real basis of Mr Ferreira’s application was, indeed, a lack of proper
medical care in Jamaica.
[8]
The officer acknowledged that mentally ill
persons are stigmatized and suffer discrimination in Jamaica. However,
documentary evidence showed that those with mental “disabilities” are treated
worse than those with a mental “illness”. Other evidence showed that homeless
persons are victims of violence, but not all of them are mentally ill. The
officer also accepted that prison conditions in Jamaica are poor.
[9]
Overall, the officer was not satisfied that Mr.
Ferreira had established that he faced a risk of persecution or cruel and
unusual treatment in Jamaica that was not excluded by s 97(1)(b)(iv).
III.
Was the officer’s decision unreasonable?
[10]
The Minister contends that the officer properly
dismissed Mr Ferreira’s application because inadequate medical care is not a
valid basis for a PRRA. The other risks Mr Ferreira identified (homelessness,
imprisonment, violence) all flowed from the unavailability of suitable medical
treatment.
[11]
In my view, however, the officer leaped too
readily to the conclusion that the risks facing Mr Ferreira arose from the lack
of medical care in Jamaica. Actually, his application was based on his own
particular circumstances.
[12]
Mr Ferreira explained in his submissions that,
without sufficient medical oversight or the support of his family, he would be
unlikely to seek out treatment or stay on his medication. In Canada, his mother and a community worker help ensure that he stays on his medication. His
condition is stable when medicated. His doctors believe he needs this kind of support
in order to maintain compliance with his treatment. No such support exists for
him in Jamaica.
[13]
Therefore, no matter what level of treatment might
be available in Jamaica, Mr Ferreira would probably not benefit from it. He
would likely be drawn into a life of homelessness, crime and incarceration in a
country where the mentally ill endure undeniable hardship. His case parallels
others in which this Court has recognized that mistreatment resulting from an
applicant’s particular symptoms of mental disorder may be relevant to an
applicant’s PRRA because s 97(1)(b)(iv) only excludes protection where
the inadequacy of medical care is directly responsible for the anticipated harm
(see, eg, Lemika v Canada (Minister of Citizenship and Immigration),
2012 FC 467; Level v Canada (Minister of Citizenship and Immigration,
2013 FC 1226).
[14]
Where, as here, the applicant’s risk relates not
to the inability of the country of origin to provide adequate medical care but
to the applicant’s inability to access treatment, s 97(1)(b)(iv) does
not stand in the way of the applicant’s PRRA. This is not to say, of course,
that all persons from Jamaica who experience schizophrenia should benefit from
a positive PRRA. As the officer acknowledged, each case must be decided on its own
facts. However, where the risk relates not to the lack of care but to the
applicant’s inability to benefit from any care that may be available, s 97(1)(b)(iv)
will not defeat a PRRA application.
IV.
Conclusion and Disposition
[15]
In my view, the officer failed to appreciate the
essence of Mr Ferreira’s application and wrongly concluded that it fell within
the exception defined by s 97(1)(b)(iv) of IRPA. I find that the
officer’s conclusion was unreasonable and must, therefore, allow this
application for judicial review and order another officer to review Mr
Ferreira’s application. Neither party proposed a question of general importance
for certification, and none is stated.
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