Canada: Ruling Gives AIDS Sufferer Grounds for Refugee Claim: Federal Court Decision Has Immigration Experts Divided

A federal judge has suspended the deportation of an HIV-positive Nigerian women and her toddler, ruling that the "discrimination and stigmatization faced by Nigerians living with HIV-AIDS" could be grounds for obtaining refugee status in Canada. Immigration experts are divided on whether the case, which Justice Michel Shore sent to another panel for reconsideration, will make it easier for HIV-positive Africans to make successful asylum claims.

Joy Omoregbe was eight months pregnant when she came to Canada in 2000, claiming she was fleeing a Nigerian chief who had raped her repeatedly. If she is forced to return, she will be treated as "immoral and loose" and will be denied health care, she said. "Because HIV is seen as a curse from God that strikes sinners, many people do not care about people with HIV-AIDS," her affidavit said. "They are ostracized, discriminated against and are even victims of violence."

HIV-positive refuges seeking asylum for other reasons are often permitted to stay in Canada, but the very fact of having HIV has not been considered a legitimate reason. Almost a decade ago, the UN High Commission on Refugees recognized that AIDS patients could be eligible for asylum in limited cases, but there have rarely been successful claims in Canada or elsewhere. Denial of health care would have to be selective in order to fall within international refugee conventions.

David Matas, a leading Canadian immigration lawyer, said the case could be significant. "The bottom line is that in principle, if you've got AIDS and you're going to be ostracized, discriminated against and stigmatized because of it, you can be a refugee," noted Matas. But Janet Dench, executive director of the Canadian Council for Refugees, said Omoregbe's argument is a long shot: "Many people suffer discrimination, which is quite painful, but that is not going to automatically lead to you being found to be a refugee."

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