Adviento v Canada (Minister of Citizenship and Immigration)

2003 FC 1430
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The applicant was a citizen of the Philippines who entered Canada in 1990 under the Foreign Domestic Program, later renamed the Live-In Caregiver Program. She remained legally employed as a caregiver until her employment authorization expired in 1998. Nonetheless, she continued to stay and work in Canada.

In 1994, the applicant was diagnosed with kidney failure. Without a kidney transplant, she would require dialysis and medications for the rest of her life. In 1995, the applicant applied for permanent residence in Canada, but her application was refused because her then husband was under an effective removal order. The applicant made an initial H&C application in 1996 based on her medical condition and other compassionate grounds. Her application was refused because her admission to Canada would, or might reasonably be expected to, cause excessive demands on health or social services. Her second H&C application was refused because the immigration officer determined that the applicant had access to proper health facilities in the Philippines, and that governmental funding was available for her treatments and medications. After failing to meet with a removal officer, the applicant was arrested in 2002. After considering the evidence relating to the applicant’s yet undecided third H&C application, the removal officer determined that a deferral of the removal order was not appropriate.

The applicant applied for judicial review of the removal officer’s decision to not defer the removal offer, and sought a declaration that her removal from Canada would violate her s 7 Charter right to life, liberty and security of the person.

In this application, the central factual issue was whether the applicant’s life would be endangered by her removal from Canada and return to the Philippines, and, if so, whether her removal violated her s 7 rights under the Charter.

The Court dismissed the application for judicial review and found that the applicant’s s 7 Charter rights were not engaged.

The Court found that the removal officer did not err in law in making her removal decision, and that her determination was not unreasonable.

The Court held that it was inappropriate for the applicant to request relief under the Charter before exhausting the remedies contained within the governing legislative scheme, specifically judicial review of the negative H&C decisions.

The Court found the applicant’s life was not endangered, provided that she had access to the needed supplies and medications. The Court also found that under Philippine legislation, all citizens of the Philippines were entitled to access to health services and to coverage by the National Health Insurance Program for inpatient and outpatient care, including prescription drugs and emergency treatment. The Court found that the applicant had failed to satisfy the requisite evidentiary threshold to prove a violation of s 7.

“It is well-established law that the discretion to defer a removal is very limited. It would be contrary to the purposes and objects to the Act to expand, by judicial declaration, a removal officer’s limited discretion so as to mandate a “mini H & C” review prior to removal.” (para 37)

"The applicant has failed to provide any evidence with respect to the cost of continuing to perform CAPD. As pointed out by the respondent, the Philippine National Drug Formulary at page 59 lists Peritoneal Dialysis Solution as a medication covered by the National Health Insurance Program (NHIP). According to PhilHealth Circulars No. 14 and 20 (s-2003), out patient services at free-standing dialysis clinics is now covered under the NHIP. This expansion of coverage has not been addressed by the applicant." (Para 67)

“On numerous occasions, the Supreme Court of Canada has reiterated that a Charter decision should not be made in a factual vacuum since doing so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of a solid factual foundation is essential to a proper consideration of Charter issues.” (para 79)

"In conclusion, I find that the applicant did not provide this Court with a solid factual foundation in order to properly assess the Charter issue. In any event, when evaluating the evidence filed before the Court I find that the applicant has not satisfied the requisite evidentiary threshold to prove a violation of section 7 of the Charter. Therefore, the applicant cannot claim that the removal officer breached her Charter rights." (Para 80)

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