Date: 20140730

Docket: IMM-81-13

Citation: 2014 FC 756

Ottawa, Ontario, July 30, 2014

PRESENT:    The Honourable Mr. Justice O'Reilly

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.

JUDGMENT

THIS COURT’S JUDGMENT is that the application for judicial review is allowed. The matter is referred back to another officer for reconsideration. No question of general importance is stated.

“James W. O’Reilly”

Annex

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: