Covarrubias v Canada (Minister of Citizenship and Immigration)

2006 FCA 365
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The appellants were Mexican citizens who arrived in Canada and made a claim for refugee protection. Before their claim was heard, the male appellant was diagnosed with end-stage renal failure and was immediately put on life-sustaining hemodialysis treatment. The Immigration and Refugee Board (‘Board’) denied their claim for refugee protection. Among other findings, the Board found that the male appellant was not a person in need of protection on the basis of his medical problems.

The appellants then applied for protected person status under the pre-removal risk assessment (‘PRRA’) scheme of the IRPA on grounds of risk to life under section 97 of the IRPA. The PRRA officer rejected this application on the grounds that the appellants were excluded from protection by operation of subparagraph 97(1)(b)(iv) of the IRPA. This provision excludes a risk to life caused by the country of origin’s “inability…to provide adequate health or medical care.” The Federal Court upheld the PRRA officer’s decision.

The central issue was whether the Judge erred in upholding the PRRA officer’s finding that their claim did not disclose a risk to life protected by section 97.

The Court held that the applications Judge did not err in upholding the PRRA officer’s decision and dismissed the appeal.

The Court found that s. 97(1)(b)(iv) was intended to be interpreted broadly, so that applicants would rarely met the burden of proof. On a balance of probabilities, an applicant must establish that there is a personalized risk to her life, but also that this risk is not caused by her country’s inability to provide adequate health care. The Court clarified that the phrase “inability to provide adequate medical services” includes situations where a foreign government has the funds to provide these services, but allocates them to other areas.

The Court found that s. 97(1)(b)(iv) does not exclude all claims in respect of health care. Protection may be available when the applicant can show she faces a personalized risk to life due to her country’s unjustified unwillingness to provide her with adequate medical care, and the country is able to finance this care.

The Court found that the appellants failed to demonstrate that the applications Judge committed a palpable and overriding error in upholding the PRRA officer’s decision. The Court found that the appellants had failed to adduce evidence that, upon return to Mexico, there would even be a risk to the male appellant’s life due to lack of adequate medical care.

The Court declined to undertake a Charter analysis of s 97(1)(b)(iv) because there was no factual basis for it.

The IRPA is clear when it states that when considering risk to life under Section 97(1)(b), that risk cannot be caused by the inability of the country to provide adequate health or medical care. The claimants are not even alleging that health care is not available in Mexico, only that they cannot afford to pay for it … Whether or not one is sympathetic to this family because of the very serious health problems is not the point. The refugee or protected person process is not designed to address health care issues.” (para 9)

The applicant must establish, on the balance of probabilities, not only that there is a personalized risk to his or her life, but that this was not caused by the inability of his or her country to provide adequate health care. Proof of a negative is required, that is, that the country is not unable to furnish medical care that is adequate for this applicant. This is no easy task and the language and the history of the provision show that it was not meant to be.” (para 31)

In my view, the words “inability to provide adequate medical services” must include situations where a foreign government decides to allocate its limited public funds in a way that obliges some of its less prosperous citizens to defray part or all of their medical expenses. Any other interpretation would require this Court to inquire into the decisions of foreign governments to allocate their public funds and possibly second-guess their decisions to spend their funds in a different way than they would choose. In other words, this Court would have to decide that foreign governments must provide free medical services to their citizens who cannot pay for them to the detriment of other areas for which the governments are responsible. This cannot have been intended by Parliament without more specific language to that effect.” (para 38)

The wording of the provision clearly leaves open the possibility for protection where an applicant can show that he faces a personalized risk to life on account of his country’s unjustified unwillingness to provide him with adequate medical care, where the financial ability is present. For example, where a country makes a deliberate attempt to persecute or discriminate against a person by deliberately allocating insufficient resources for the treatment and care of that person’s illness or disability, as has happened in some countries with patients suffering from HIV/AIDS, that person may qualify under the section, for this would be refusal to provide the care and not inability to do so.” (para 39)

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