[2012] 2 F.C.R. D-11
CitIZENSHIP AND Immigration
Status in Canada
Convention Refugees and Persons in Need of Protection
Judicial review of decision by Refugee Protection Division of Immigration and Refugee Board (Board) rejecting applicant’s refugee claim—Applicant, citizen of St. Vincent and the Grenadines, entering Canada as visitor, Canada without status—While without status, diagnosed with benign tumor affecting brain, pituitary gland—Evidence applicant requiring daily doses of certain medicines for rest of life, requiring occasional testing to determine whether tumor recurring—Applicant filing refugee claim alleging risk to life should applicant return to St. Vincent because of inability to access adequate medical treatment there—One year later, applicant filing application for permanent residence on H&C grounds on basis unable to afford life sustaining medication should applicant be returned to St. Vincent—Application remaining outstanding—According to Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 97(1)(b)(iv), person cannot be considered person in need of protection from risk to life or cruel, unusual treatment or punishment if threat or risk caused by inability of person’s home country to provide adequate health or medical care—Applicant arguing Act, s. 97(1)(b)(iv) unconstitutional having regard to Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 15(1)—According to applicant, s. 97(1)(b)(iv) applying only to people with medical conditions treatable in Canada, but not country of origin—Thus, s. 97(1)(b)(iv) imposing, according to applicant, differential treatment solely on basis of person’s individual disability, individual country of origin—Board’s finding that applicant not denied medical treatment or discriminated against in St. Vincent reasonable—Applicant’s assertion that at risk of receiving inadequate medical treatment resulting in possible death if removed to be assessed according to Act, s. 97(1)(b)(iv); namely, whether risk to life—However, in H&C application, test different—Respondent to instead consider hardships affecting foreign national pursuant to Act, ss. 25(1), (1.3)—Question in case thus primarily whether s. 97(1)(b)(iv) discriminatory on ground different criteria from those under ss. 25(1), (1.3) in respect of same assertion of risk to life provided—In light of Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365, [2007] 3 F.C.R. 169, s. 97(1)(b)(iv) not discriminatory or violating Charter, s. 15—Applicant suffering no discrimination while in Canada—Regarding whether applicant deprived of right to life contrary to Charter, s. 7, section not imposing positive obligation on Board to adjourn hearing until determination of H&C application—Application dismissed.
Laidlow v. Canada (Citizenship and Immigration) (IMM-3383-11, 2012 FC 144, Hughes J., judgment dated February 3, 2012, 19 pp.)