Wednesday, March 20, 2013


Honduras refugee who worked as a prostitute without telling his clients he had HIV can stay in Canada: judge

The case of Marvin Adolfo Galvez Padilla, 46, raises questions over the risks of HIV and what constitutes dangerous behaviour in immigration and refugee law.
Among his convictions are two for assault, one in which he bit a security guard who caught him stealing, according to police, and a second where he used an umbrella to attack a store keeper who was trying to stop him stealing. He also has two convictions for cocaine trafficking; one for uttering threats; 15 for theft; seven for failure to attend court; and three for communication for the purposes of engaging in prostitution.
A federal official looked at Mr. Galvez’s 24 years in Canada and saw an accumulation of problems adding up to him being a danger to the public.
The threats and assaults, CIC found, were serious; his multiple thefts showed a pattern of recidivism compounded by his drug addiction that “can add an element of danger to any circumstance” through “volatility and sudden adverse behaviour,” declared the official, a staffer on behalf of the Minister of Citizenship and Immigration Canada, referred to as a ‘‘delegate.’’
But Mr. Galvez’s sexual behaviour was also a serious concern for the delegate.
CIC was “alarmed” that Mr. Galvez would not disclose his HIV-positive status to his sex clients, calling it “very disturbing” and saying it exposed people to “a lethal degree of risk.”
CIC ordered him deported back to Honduras even though he was previously accepted as a refugee fleeing persecution there. He appealed to the Federal Court of Canada.
Justice Yves de Montigny took issue with CIC’s view of HIV risk, saying it was out of step with current legal and medical knowledge.
“What seems to have weighed most heavily on the delegate’s mind is the sexual behaviour of Mr. Galvez and the fact that he admitted not disclosing his HIV status to his clients,” Judge de Montigny wrote in his decision released last week after a hearing in Toronto.
“There are two problems with this statement. First of all, [Mr. Galvez] has never been convicted for aggravated sexual assault as a result of his failure to disclose his positive HIV status… I find it troubling that the delegate relied on behaviour for which the applicant was never convicted, let alone found inadmissible, to ground her danger opinion.
“Moreover, it is not at all clear that the applicant’s behaviour would attract criminal liability.
“The HIV status must be disclosed only if there is a realistic possibility of transmission of HIV. Yet, the delegate assumes that the use of a condom does not guarantee protection against coming into contact with HIV, contrary to scientific and medical evidence.”
If left standing, Judge de Montigny wrote, CIC’s decision “could have the perverse effect of facilitating the removal of petty criminals, drug addicts involved only peripherally in the drug trade, and individuals who are HIV positive. Such a result would clearly not be in keeping with Canada’s international obligations and must be censored.”
The ruling was praised by Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, a research and advocacy group.
“I think there was a certain amount of HIV-phobia at play in the original decision and it is good to see that was corrected on review,” he said.
“The judge is right in suggesting there seemed to be exaggeration and unjustifiable attention paid to the fact that this particular person has HIV. There seemed an exaggerated sense of the risks of HIV transmission.”
Immigration lawyer and analyst Sergio Karas, however, said he thinks the judge got it wrong and the HIV elements became a side issue.
“It is incredible that not even 13 convictions were enough for a ‘danger’ opinion in this case, where much less has been considered sufficient in other cases,” he said.
Andrew Brouwer, lawyer for Mr. Galvez, declined to comment on the case because he did not have permission from his client.
National Post

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