This afternoon, the Honourable Madam Justice Gleason of the Federal Court ordered a stay of removal in the case of a stateless person (Bidun) originally from Kuwait who suffers from severe ulcerative colitis.  The Applicant’s refugee claim was rejected in May 2013 and he applied to the Federal Court for leave to review that decision.  Despite new evidence of risk provided by his doctors documenting his current medical condition, due to the new legislation barring Pre-Removal Risk Assessment (‘PRRA’) applications for one year after a negative refugee decision, the Applicant was unable to apply to have his risk assessed by a PRRA Officer.

Canada Border Service Agency informed the Applicant that he was going to be removed from Canada on February 10 2014, despite his serious medical condition and despite the evidence before the Officer from his doctor in Kuwait that stateless individuals do not receive the type of treatment that is vital for his condition.

The Court held that objective documentary evidence before the Officer indicated that Kuwait discriminates in the provision of medical services between nationals and stateless individuals (of whom there are many in Kuwait). The documentation indicated that medical insurance may be purchased by stateless individuals, but did not state to what extent it covers the cost of drugs, like Remicade. In addition, the Court acknowledged that the applicant is currently unable to work due to his disability and is in receipt of benefits under the Ontario Disability Support Program. As such, he would be unable to work to acquire funds to purchase health insurance if returned to Kuwait.

The Court stated:

In the face of this evidence, the Officer concluded that the applicant would be able to

obtain Remicade in Kuwait. In my view, there is a strong argument that this conclusion is unreasonable, as it contradicts the documentary evidence before the Officer. Thus, I find that the applicant has established the presence of a serious issue.

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I also find that the applicant has established that he will suffer irreparable harm if

returned to Kuwait. The evidence shows that he requires Remicade, failing which he will need surgery to resect his bowel. This surgery would leave him with an ileostomy. The only evidence before me regarding the availability of Remicade for the applicant in Kuwait is from the applicant’s Kuwaiti physician, who stated that the drug is not available to the applicant. There is likewise no evidence that the applicant would be able to obtain the surgery he would need in Kuwait if he does not continue with his Remicade regimen, and without such surgery his life would be at risk.

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I find that the applicant has met this higher threshold and has established that there is a strong argument that the Officer committed a reviewable error in determining that the applicant would likely be able to benefit from the medical care he needs if returned to Kuwait.

I note that the respondent did not refer this file to one of its medical specialists for advice prior to ruling on the applicant’s deferral request and did not inquire as to the availability in Kuwait of the required Remicade treatment for the applicant.

Ultimately, the Court concluded that the Applicant had met the tripartite test, demonstrating a serious issue, irreparable harm and that the balance of convenience was in his favour.  As such Justice Gleason ordered a stay of his removal.