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Covarrubias v. Canada (Minister of Citizenship and Immigration) 2006 FCA 365 (F.C.A.)
March 23, 2012
April 13, 2011
January 20, 2011
This appeal focused on the interpretation s. 97(1)(b)(iv) of the Immigration and Refugee Protection Act, which excludes refugee protection from a risk to life caused by the “inability [of a claimant’s country of nationality] to provide adequate health or medical care.”
The Covarrubiases were refugee claimants but before their hearing, Mr. Covarrubias was diagnosed with end stage renal failure and was immediately put on life sustaining hemo dialysis treatment. Their claims for refugee protection were denied by the Immigration and Refugee Board, which found that they did not face a personalized risk of persecution and that state protection was available to them. As well, the Board found that Mr. Covarrubias was not a person in need of protection on the basis of his medical problems.
The Covarrubiases attempted to distinguish between a country’s unwillingness to provide medical care and a country’s genuine inability to provide medical care. Where a country has the financial ability to provide emergency medical care, but chooses, as a matter of public policy, not to provide such care freely to its underprivileged citizens it is a violation of international standards and precisely the type of risk to life that is contemplated by s. 97.
Citizenship and Immigration Canada argued for a broad interpretation of the exclusion in s. 97(1)(b)(iv) so as to exclude virtually any risk to life on account of a person's health care needs and drew no distinction between a country's unwillingness and its inability to provide such health care.
The Court concluded that s. 97(1)(b)(iv) is meant to be broadly interpreted, so that only in rare cases would the onus on the refugee applicant be met. Proof of is required that the country is not unable to furnish medical care that is adequate for the applicant or, in other words, that the country is able to provide medical care, but chooses not to.
A country's political decision not to provide a certain level of health care does not necessarily mean that the country is "unwilling" to provide that care to its nationals. The onus will be met where an applicant can show a personalized risk to life on account of the 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.
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