Thursday, May 17, 2012


I am quoted in today's National Post story on medical inadmissibility, HIV and other immigrants with medical conditions/

Canadian immigration rules blur when illness involved | News | National Post

Canadian immigration rules blur when illness involved

Tom Blackwell May 16, 2012 – 9:41 PM ET | Last Updated: May 16, 2012 9:42 PM ET

Reviving questions about when and if a would-be immigrant’s health problems should keep him out of Canada, the Federal Court has overturned a government decision to bar a Panamanian man from the country because of the potential financial burden of his HIV infection.

Nestor Ovalle has a job offer from a Toronto accounting firm and qualified for entry under the skilled-worker category. He was denied permanent resident status, however, on the grounds that his need for $18,000 a year in anti-retroviral drugs could unduly strain Canadian health-care resources.

The court quashed that ruling this month and sent the case back for a new hearing, saying the original Immigration Canada officer ignored evidence that a U.S. charity — not Ontario taxpayers — would pay for Mr. Ovalle’s medication.

It is the latest in a string of recent decisions on whether HIV, multiple sclerosis or other illness requiring expensive treatment should be a barrier to entry, including one earlier this month that found an elderly American couple — one of whom has advanced Alzheimer’s — came here simply because they liked Canada’s health-care system better.

Some judges have concluded that promises to cover the cost of drugs and other care privately are unrealistic or would be all but impossible to enforce. Others have decided offers to pay expenses — often by well-heeled applicants — are reasonable and should be considered seriously.
Qualified immigrants are welcome to come to Canada “unless they are sick; except if they are rich — maybe,” one judge wrote in a 2010 ruling, summing up the complex legal landscape.

The law needs to be clarified, said Sergio Karas, a Toronto immigration lawyer, who argues that no matter what kind of commitment immigrants make to cover extraordinary health costs, there is basically no system in place to ensure they will.

“We have in Canada a problem with access to health care, in terms of waiting lists and all that, so it’s not just the cost, it’s also taking the place of someone else,” said Mr. Karas. “Shouldn’t this be a national debate, about whether taxpayers are willing to give access to public resources?”

The government itself is also concerned about whether seriously ill immigrants will keep their promises to pay for health services, especially when they have access to government-financed care, said Remi Lariviere, a spokesman for Citizenship and Immigration Canada.

“There are no mechanisms for CIC to enforce [cost] mitigation plans,” he said via email.

Mr. Ovalle and his lawyer, Michael Battista, could not be reached for comment.

A lawyer who advocates for immigrants in such cases, however, noted the Supreme Court has indicated that prospective immigrants must be given a chance to show they can offset the higher social service and health-care costs they might pose. Canada should generally consider the positive contributions immigrants will make to the country — through paying taxes and in other ways — and not just what they might draw from taxpayer-funded services, said John Norquay of HIV & AIDS Legal Clinic Ontario.

“The whole immigration process is premised to a certain extent on hoping for the best,” said Mr. Norquay. “We hope that people are going to give more than they take back.”

Federal legislation excludes foreigners whose medical costs are likely to top the average for a Canadian, currently pegged at about $6,100 a year. A 2005 Supreme Court ruling, though, said the government should consider an immigrant’s ability to offset such expenses themselves.

Mr. Ovalle first came to Canada several years ago, applying for refugee status based on the persecution he said he suffered in Panama as a gay man with HIV, including beatings by his own parents and firings from two jobs. The refugee claim was denied on the grounds the Panamaian government works to protect its gay citizens from discrimination.

Before being removed from Canada, he began working for Zeifmans LLP, a Toronto chartered-accounting firm. It has offered him a job if he returns, calling Mr. Ovalle a “valuable and reliable” worker with skills in U.S. tax accountancy that are difficult to find in Canada.

Back in Panama, he qualified to emigrate here under the skilled-worker class. As with most other Western countries, having HIV does not automatically exclude a would-be immigrant from being allowed to settle in Canada.

But an immigration officer rejected Mr. Ovalle’s application last year, citing the rule on excessive health-care expenses. Anti-retroviral drugs are now allowing HIV patients to live long and relatively healthy lives, but the cost for Mr. Ovalle is about $1,500 monthly.

‘The whole immigration process is premised to a certain extent on hoping for the best’

In Ontario and many other provinces, he would be eligible for funding to cover much of that drug bill, as well as other health care.

Mr. Ovalle offered up a letter from Aid for AIDS International, an American charity that has funded his medication since 2009 and promised to keep footing the bill even if he moved to Canada. He would also receive up to $1,500 a year in medical and dental benefits with his job.

Justice James O’Reilly overturned the Immigration Canada rejection, saying it was unreasonable because the officer seemed to not even consider the charity’s offer.

The Panamanian can now argue his case before another officer.

National Post

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