HIV positive refugee claimant denied hearing at top court

Canada's highest court has decided not to hear a deportation appeal that could have added another legal wrinkle to refugee claims from HIV/AIDS patients. That wrinkle would have required the Supreme Court of Canada to determine if sending a refugee home to a country with a lack of health-care resources was effectively a death sentence. That was the argument from an HIV positive Zimbabwe man who argued he would not receive proper health care in his home country, putting his life at risk should he be deported.

The Supreme Court was his last chance to appeal his deportation.

The court does not traditionally give reasons for approving or denying a request for a hearing, or granting or denying leave to appeal. When the Federal Court looked at the case, it said these types of refugee claims "raise profound humanitarian, legal and social policy issues." Federal immigration laws allow the government to deny entry to any immigrant with a medical condition that could be a burden on the health-care system and the public purse. The courts have previously allowed refugee claimants with HIV/AIDS to stay in Canada if they are going to be discriminated against should they be sent home.

When the Zimbabwe man, known as A.B. in court documents, arrived with his family in 2001 on work and education visas, he reportedly didn't know he was HIV positive. According to court documents, it was while in Canada that A.B. learned of his condition. He has been receiving anti-retroviral therapy since April 2004 and, according to court documents, he was responding well to treatment.

A.B. argued to a Federal Court judge and to the immigration and refugee board that if he were sent back to Zimbabwe, he might not be able to access the same level of health care available in Canada, putting his life at risk. He also said he feared being ostracized because of his diagnosis that could impact his ability to get a job. The refugee board did not agree and ruled that A.B.'s health-care fears were "speculative" and the harm he feared upon his return to Zimbabwe "did not meet the definition of cruel and unusual treatment or punishment — albeit that (his) circumstances were sad and difficult."

A Federal Court judge disagreed and ordered a new review of A.B.'s case. The court in its ruling wrote that a refugee could stay in Canada if they would be denied treatment upon their return home, but that didn't appear to be the case here.