HALCO welcomes the Federal Court’s recent decision overturning a decision of the Immigration Appeal Division of the Immigration and Refugee Board (IRB) of Canada. The Federal Court’s decision was in part due to HIV-related stigma on the part of the IRB Member.
During the medical exams conducted as part of a Canadian citizen’s application to sponsor her parents, the applicant’s father was diagnosed with HIV. Since Canada’s medical inadmissibility laws generally prevent the immigration of anyone whose health care may cost more than that of the average Canadian, immigration officials refused the sponsorship application. The family appealed the refusal to the IRB. The IRB Member found that there were insufficient humanitarian and compassionate grounds to allow the appeal. The family challenged this second refusal in Federal Court.
HALCO and the Canadian HIV/AIDS Legal Network jointly intervened in the Federal Court case due to the HIV-related stigma in the IRB Member’s decision. At several points in the decision, the IRB Member referred to the manner in which the Applicant’s father contracted HIV, with the Board Member implying that the father was morally culpable for his HIV infection. The implication of the IRB decision was that people living with HIV could be subject to additional scrutiny and be found less deserving of compassion. HALCO and the Legal Network argued that these references were classic examples of HIV-related stigma.
The Federal Court agreed with HALCO and the Legal Network’s position that the decision-maker had “unduly chastise[d]” the applicant for having HIV, and that the decision-maker was acting “as moral police.” The Federal Court further confirmed that “the circumstances under which [the applicant] contracted HIV are wholly irrelevant to the issue”, “as are any issues related to the applicant’s father’s moral character.” The matter has now been sent back to the IRB for a hearing with a new decision-maker.
Here are links to more information:
- Factum of the interveners on our website: www.halco.org/wp-content/uploads/2018/03/Medical-Inadmiss-Factum-2017Nov.pdf
- Federal Court decision: https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/303926/index.do?r=AAAAAQAOYS5iLiB2LiBjYW5hZGEB
- Media coverage:
- “Decision-maker slammed as moral police for refusing immigration to HIV positive man,” Nicholas Keung in The Toronto Star, 14 January 2018 www.thestar.com/news/immigration/2018/01/08/decision-maker-slammed-as-moral-police-for-refusing-immigration-to-hiv-positive-man.html
- “Empathy needed in dealing with health-related immigration cases,” Terry Davidson in The Lawyers’ Daily, 18 January 2018: www.thelawyersdaily.ca/articles/5690
HALCO provides free legal services for people living with HIV in Ontario. If you are living with HIV in Ontario and have questions about immigration or other legal issues, please contact us for free legal advice.