Canada ends policy that forced immigration applicants and refugees to disclose HIV status to sponsors

2023/07/15 Leave a comment

Of note:

The federal government has revoked a controversial policy that required immigration applicants or refugees to disclose an HIV diagnosis to the person who was sponsoring them to Canada.

The immigration department’s move to put an end to the automatic partner notification policy was hailed by advocates who have criticized the rule, saying it discriminated against people living with HIV and failed to reflect medical advancements in treating the once-deadly virus.

On Friday, officials posted an update online noting the department would “discontinue” the program, days after the Star published a story about three advocacy groups demanding Ottawa rescind the policy. The change took effect immediately.

All permanent resident applicants are still required to undergo an HIV test as part of their medical screening. Being HIV positive does not make someone inadmissible due to a formal public health concern, but it can still lead to inadmissibility if the person’s anticipated health care exceeds a set threshold.

The notification policy has been in place since 2003 as a public health measure to stop the spread of HIV, which, if untreated, can lead to acquired immunodeficiency syndrome or AIDS, a disease that has killed millions.

Modern medical treatment has transformed the virus into a manageable condition, and advocates say that, after two decades, the “out-of-date and discriminatory” policy needed to go.

This policy was unique to HIV-positive applicants; there was no similar requirement for other health conditions. The rule also only applied to sponsored family members and refugees, not to visitors, international students, temporary foreign workers or those applying for permanent residence under the economic class.

“Congratulations to the Immigration Minister for doing the right thing,” said lawyer Michael Battista, who had represented immigration applicants caught in this situation, which further caused delays in processing their applications due to the long wait for a in-person interview that was subsequently required.

“The swift termination of this policy has been a tremendous relief for our clients. The policy added to their stress and sense of being stigmatized. It also achieved no purpose, because most sponsors were fully aware of their partners’ HIV status.”

In June, three groups wrote to Immigration Minister Sean Fraser and Marci Ien, the minister for women and gender equality and youth, demanding the policy be reconsidered. The signatories to the letter included the HIV & AIDS Legal Clinic of Ontario (HALCO), the HIV Legal Network and the Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA).

“Canada has long claimed to be a leader on the world stage when it comes to both HIV and human rights. This is certainly a positive step in that direction,” said the HIV Legal Network in a statement to the Star.

The network, however, said the medical inadmissibility provision will continue to be a barrier for applicants with medical needs by reducing them to the cost of their health care.

Source: Canada ends policy that forced immigration applicants and refugees to disclose HIV status to sponsors

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Being HIV positive is no longer a death sentence. So why does Canada insist on sharing immigration applicants’ HIV status with their sponsors?

2023/07/06 Leave a comment

Of note:

When they found love in Mexico 10 years ago, one of the first things the Canadian man’s boyfriend confided in him was that he was HIV-positive.

But the medical condition was no longer seen as the health threat it had once been, and it wasn’t going to stop their budding relationship.

The couple maintained a long-distance romance for four years before the Mexican partner moved to Toronto in 2017 on a work permit.

It was when they started their spousal sponsorship application in 2020 that the couple learned of Canada’s automatic HIV-partner-disclosure policy.

It’s a policy that mandates an immigration applicant or refugee prove they have disclosed their medical condition to the person who is sponsoring them to Canada.

The couple say they found the formal process not only offensive but frustrating, as it delayed the processing of their file for an additional 18 months.

Finally, they were scheduled for the long-awaited brief interview in April to confirm, in person, that the sponsored partner’s HIV status had been disclosed.

“It’s not just a privacy issue. I also just feel incredibly stigmatized,” said the 55-year-old Canadian fashion designer, who asked not to be identified to protect his partner’s privacy.

“I don’t feel it’s anybody’s business, and I don’t feel it’s something that needs to be addressed for my partner.”

The so-called “automatic partner notification policy” has been in place since 2003 as a public health measure to stop the spread of the HIV virus, which, if untreated, can lead to acquired immunodeficiency syndrome or AIDS, a disease that has killed millions.

However, modern medical treatment has transformed the virus into a manageable medical condition, and advocates say that, after two decades, the immigration department’s “out-of-date and discriminatory” policy should go.

In mid-June, three organizations wrote to Immigration Minister Sean Fraser and Marci Ien, the minister for women and gender equality and youth, demanding the policy be revoked and saying that it was discriminating against people with HIV and violating their right to equal treatment under the Canadian Charter.

“Not only does the Policy significantly extend the length of processing of immigration applications for people living with HIV, it also perpetuates myths and stereotypes that people with HIV are deceptive and are less worthy of intimate relationships,” the letter noted.

The signatories of the letter include the HIV & AIDS Legal Clinic of Ontario (HALCO), the HIV Legal Network, and the Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA).

Michael Battista, their counsel, said the policy is discriminatory because only those applicants sponsored under the family and refugee classes are subject to the disclosure to partner policy.

Temporary residence visa applicants — visitors, international students, temporary foreign workers — and those applying for permanent residence under economic class are not under the same scrutiny even though they, too, could potentially be HIV positive.

“We let in HIV-positive foreign students, foreign workers. We don’t ever force them to reveal to their intimate partners that they’re HIV positive. Why are we singling out the family class and dependent refugees?” asked Battista.

“It’s not even serving the ends of its public health concern.”

The policy is unique to HIV-positive applicants. There is no similar mechanism for other health conditions.

Immigration applicants with active pulmonary tuberculosis (TB) and untreated syphilis can be found inadmissible to Canada, unless they are treated, on the grounds that their condition is a danger to public safety, according to the standards laid down by Health Canada.

However, unlike TB and untreated syphilis, immigration officials do not consider HIV a danger to public health.

When the original policy was implemented, it required consent of the HIV-positive applicant for immigration officials to contact their sponsor in Canada about their HIV status and assess whether the sponsor would withdraw their application.

To avoid the impression that the policy was prompting sponsors to withdraw their applications, the updated policy has, since 2016, given the HIV-positive applicant 60 days to provide proof they have informed their sponsor of their diagnosis or to withdraw their application. If the applicant takes no action, immigration officials will then inform the sponsor about their HIV status after 60 days have elapsed.

HIV-positive sponsorship applicants must also attend a compulsory interview that is not required of other sponsorship applicants.

Battista said immigration officials had not strictly adhered to the policy until about 18 months ago, when he started to see the processing times of the HIV positive clients’ cases “inexplicably lengthened.”

“The explanation we got was they were being put into the interview stream automatically. We tried to be proactive and provide evidence that the sponsor was advised of the HIV-positive health condition of the person being sponsored,” said Battista. “But they just didn’t budge.”

He said the policy perpetuates a stereotype that people with HIV are morally blameworthy and irresponsible in taking precautions to prevent the transmission of HIV.

On its website, the immigration department said the policy does not intend to “inflict unnecessary hardship” on applicants or sponsors.

“Rather, it is a measure that will protect the health and safety of the spouses and partners (residing in Canada) of applicants in the family and dependent refugee classes who test positive for HIV,” it noted.

While the change of language in the 2016 policy was an improvement, Avineet Cheema, staff lawyer at HALCO, said it still doesn’t reflect modern science.

“This is a policy that was implemented at a time when there wasn’t as much modern science advancements when it comes to HIV and suppressing viral loads and things like that,” said Cheema, who has seen cases in which an officer asked the sponsor why they’re comfortable marrying an HIV carrier.

“Being diagnosed with HIV is in no way a death sentence at this time. And it is very manageable with medications to the point that there isn’t even a real decrease in life expectancy.”

There are other sexually transmitted infections, said Cheema, and singling out HIV further stigmatizes those living with the virus.

“That really targets the dignity of people who are living with HIV, because the Canadian government is essentially telling them, ‘You’re different. You are dangerous. Your health condition makes it so.’”

The policy, she added, disproportionately affects gay, trans, Black and other racialized people, due to the heightened impact of the HIV stigma.

The Canadian sponsor of the Mexican partner said they are committed and responsible adults, but were uncomfortable at their April interview at the immigration office in Niagara Falls.

“I felt there was homophobia hidden behind a mask of protocol,” he said. “I don’t think it’s fair that they single out people with HIV. It’s not fair for my partner to have to go through that.”

In an email to the Star, the immigration department said it doesn’t collect data on the notifications issued, interviews conducted and sponsorship withdrawals recorded under the policy.

A department spokesperson said the policy is currently under review and that any modifications will be made to the public when it is completed.

Source: Being HIV positive is no longer a death sentence. So why does Canada insist on sharing immigration applicants’ HIV status with their sponsors?

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Decision-maker slammed as ‘moral police’ for refusing immigration to HIV-positive man | Toronto Star

2018/01/16 Leave a comment

Understandable Federal Court decision given the comments by the decision-maker on the “morality” rather than possible medical burden:

The Federal Court has slammed an immigration tribunal adjudicator for acting as “moral police” in denying an HIV-positive man permission to reunite with his daughters in Canada, blaming him for contracting the virus from an affair.

In chastising Michael Sterlin, the decision-maker at the immigration appeal division (IAD) tribunal, the court said that how the 62-year-old immigration applicant got HIV had nothing to do with the sponsorship case. To protect the man’s privacy, he was only randomly identified by court as A.B.

“The circumstances under which Mr. A.B. contracted HIV are wholly irrelevant to the issue before the IAD, as are any issues related to the applicant’s father’s moral character,” said Justice Shirzad Ahmed in a recent decision to send the case back to the tribunal for a new assessment.

“The IAD appears to make judgments against Mr. A.B.’s moral character, and in doing so, the IAD acts as moral police.”

In 2009, one of A.B.’s two daughters — who are both Canadian citizens living in Ottawa — applied to sponsor him and his wife to come to Canada under family reunification.

During the course of A.B.’s medical exam, a routine requirement in the immigration process, it was discovered that he is HIV-positive. In 2013, immigration officials informed the family that his health condition would cause “excessive demand” on Canadian health services and his sponsorship application would probably be denied.

Although the family was willing and able to cover the cost of A.B.’s anti-retroviral medications and requested humanitarian and compassionate relief, Immigration Canada refused the application in 2014. The family subsequently appealed to the tribunal.

Last year, the tribunal upheld the immigration decision, concluding that there were “insufficient humanitarian and compassionate considerations to grant special relief.”

 

A.B.’s two daughters had argued that they were the only children and had the responsibility to care for their parents, who would be ostracized in their native China and suffer discrimination and prejudice because of his HIV status.

“The reason why it is claimed the family will shun (the couple) is a perception that such patients have loose morals, in that a key way the virus is transmitted is by having sex,” Sterlin, the tribunal adjudicator, wrote in dismissing the family’s appeal.

“In fact, it turns out that the father did get the virus from having an affair. It is noteworthy, perhaps, that this did not come out until the panel directly asked the appellant why her father had the virus.

“If there is any antipathy, the panel finds, then it would most likely be against the father for risking a long-standing marriage by having an affair in his middle age or later,” continued Sterlin, who left the tribunal last June shortly after he rendered his decision on A.B.’s case.

“It is unfortunate that the father had an affair which led him to become HIV positive. However this was, again, a risk he took, which was unlikely but reasonably foreseeable, and it has unfortunately presented him with very significant problems.”

Wennie Lee, the family’s lawyer, said her clients were pleased that the court quashed the tribunal decision and ordered a new hearing into the request for humanitarian and compassionate relief.

“It is a significant court decision as it provides clear direction to the tribunal to truly apply compassion in deciding whether to exercise (the humanitarian and compassionate) relief,” she said.

“For my clients, in the Chinese culture, where personal and community connections are of paramount importance, social exclusion because of HIV status takes on added significance and importance.”

Lawyer Meagan Johnston for the HIV & AIDS Legal Clinic Ontario, one of two intervening parties in the court case, said people with the virus are a dominant group negatively affected by immigration’s “medical inadmissibility” policy that prevents them from immigrating.

In fact, immigration data shows 74 per cent of economic-class immigration applicants with HIV were found to be inadmissible to Canada in 2014 alone, she said, while 61 per cent of those with the virus were denied a work permit or study visa.

“It is repugnant that they are not given a fair chance and their HIV status and morality is used against them in their applications,” Johnston said. “That kind of attitudes against people with HIV is more common than what Canadians would like to admit.”

The immigration appeal tribunal declined to comment on the decision. Sterlin could not be reached for comment.

A spokesperson for the tribunal, which is part of the Immigration and Refugee Board, said the board does not have guidelines addressing cases involving person with HIV and AIDS specifically, but its procedures with respect to “vulnerable persons” speaks to the need to treat vulnerable individuals with “sensitivity and respect.”

via Decision-maker slammed as ‘moral police’ for refusing immigration to HIV-positive man | Toronto Star

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