Federal Court

Constitutional Law

Return to St. Vincent will not endanger applicant’s life

Application for judicial review of denial of refugee claim. Applicant was adult male citizen of Saint Vincent and Grenadines who entered Canada in 2007 on visitor visa, overstayed his visa and remained in Canada, without status, since that time. Applicant was hospitalized in July 2009 after losing his eyesight and memory. Applicant was diagnosed with benign tumor that was surgically removed. Evidence was that he would require daily doses of certain medicines for rest of his life and would require occasional testing to determine if the tumor had recurred. Applicant filed refugee claim in September 2009 on grounds that he faced risk to his life were he to return to Saint Vincent, in that he would be unable to access adequate medical treatment there. In September 2010, applicant filed application for permanent residence based on humanitarian and compassionate (“H&C”) grounds, which remains outstanding, on basis that he would be unable to afford life sustaining medication were he to be returned to Saint Vincent. Applicant’s claim for refugee protection was scheduled for hearing September 17, 2010. At request of his counsel, this hearing was adjourned to March 2011. In February 2011, applicant’s counsel again requested adjournment on basis that applicant had raised Charter issue as to whether s. 97(1)(b)(iv) of Immigration and Refugee Protection Act (Can.), was unconstitutional in that it violated applicant’s rights to life and security of person under s. 7 of Canadian Charter of Rights and Freedoms and his right to equality under s. 15(1) of Charter, and whether these violations could be justified under s. 1 of the Charter. Applicant also contended that board should wait until applicant’s H&C application was determined. Board refused adjournment, finding that there were no exceptional circumstances to warrant delay and that denying adjournment would not cause any prejudice to refugee protection claim. Hearing was held on March 22, 2011, and applicant’s refugee claim was rejected. Board found that applicant would not be denied medical treatment or be discriminated against in respect of medical treatment in Saint Vincent. Application dismissed. Section 97(1)(b)(iv) does not discriminate against applicant individually or as member of particular class. While in Canada he suffered no discrimination, if removed to Saint Vincent he will not suffer risk to life. There was no violation of s. 15 of Charter. With respect to s. 7 of Charter, applicant has not been deprived of right to life because his refugee claim was determined without postponement until H&C application was determined. Return to Saint Vincent will not endanger his life. Section 7 did not impose positive obligation on board to adjourn its hearing until determination of H&C application.

Laidlow v. Canada (Minister of Citizenship and Immigration)

(Feb. 3, 2012, F.C., Hughes J., File No. IMM-3383-11) 213 A.C.W.S. (3d) 444 (20 pp.).

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