SERGIO R. KARAS QUOTED IN TODAY'S NATIONAL POST STORY ABOUT AUTISTIC CHILD

I wa quoted in today's National Post front page story on medical inadmissibility, concerning the case of an autistic child who would require public expenditures. The child's parents application for permanent residence was rejected due to the child's condition.

http://news.nationalpost.com/2015/01/12/judge-upholds-decision-denying-entry-to-south-african-doctor-because-her-autistic-child-would-cost-taxpayers-too-much/

January 12, 2015

South African doctor's immigration bid rejected because her autistic child would cost taxpayers too much

By Tom Blackwell 

Of the one million or so permanent-resident applications filed every year, 0.2% - or about 20,000 - are rejected as medically inadmissible

A judge has upheld an immigration officer's decision to deny entry to a South African doctor because her autistic child would cost taxpayers too much money, highlighting a little-known law that puts a pricetag on the medical conditions of would-be new Canadians.

Thousands of potential immigrants are rejected every year because of the rule, and numerous appeals - involving people with everything from HIV to arthritis - have reached the courts.

At the heart of the cases is a 13-year-old section of the Immigration and Refugee Protection Act that deems people "medically inadmissible" if their condition would trigger excessive medical or social costs here.

"It continues to impact real people, often in surprising cases," the author of medicallyinadmissible.com, a blog critical of the policy, wrote recently. The anonymous U.S. citizen, who describes himself as HIV-positive, says the legislation should be rescinded.

"Maybe because it violates the various UN agreements to which Canada is signatory, or because it violates the Charter rights," he charges. "Whatever the reason, it will be nice to see the morally repugnant scheme struck down."

One leading Canadian immigration lawyer, however, says the law serves an important purpose.

"The act wisely provides a mechanism to ensure aspiring immigrants don't unduly burden the system, because that wouldn't be fair," said Sergio Karas, a Toronto-based lawyer. "The system is already over-taxed. All you need to do is walk into any emergency room and you see what the problem is. There are people in the corridors for hours on end."

Of the one million or so permanent-resident applications filed every year, 0.2% - or about 20,000 - are rejected as medically inadmissible, Bill Brown, a Citizenship and Immigration Canada spokesman, said.

While those cases include people judged a threat to public health or safety, most stem from the excessive-cost question, said Mario Bellissimo, a Toronto immigration lawyer.

In the latest case, Asmeeta Burra, a physician in South Africa, and her architect husband had applied to be permanent residents under the skilled-worker category, planning to settle in British Columbia.

The fact her son is autistic triggered a medical assessment, which concluded that the cost of special education for the boy would total about $16,000 a year. That well exceeds the annually adjusted average social and medical cost for Canadians, currently about $6,300.

The couple responded that they would cover the cost of any special assistance their son would need, and noted that in South Africa he goes to a mainstream school, and requires only sporadic help from a private agency.

Applicants are allowed to submit a plan to mitigate such costs. Immigration officials rejected Dr. Burra's submission, though, saying there was no proof of the couple's likely income and that, regardless, the services their son would need are provided by publicly funded institutions.

She asked the Federal Court to overturn that decision, but in a recent ruling, Justice Cecil Strickland upheld the Citizenship and Immigration handling of the case, saying that the plan the parents filed lacked specifics and failed to clearly counter the excessive cost issue.

Dr. Burra could not be reached for comment.

Mr. Bellissimo, her lawyer, said the case underlines a problem in this area and other parts of the immigration system. The government encourages people to make applications without legal help - as his clients did in the early stages of their case - but the requirements are often difficult for lay people to understand, he said.

Still, Mr. Bellisimo stopped short of criticizing the law itself, noting that some immigrants are successful in arguing that they can mitigate the costs of medical or social services. That is usually done by promising to pay for private treatment or education.

"I think for the most part, it strikes a fair balance," he said.

National Post

SERGIO KARAS QUOTED IN THE NATIONAL POST ON IMMIGRATION AND HIV CASE

http://news.nationalpost.com/2013/03/19/honduras-refugee-who-worked-as-a-prostitute-without-telling-his-clients-he-had-hiv-can-stay-in-canada-judge/

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

A refugee from Honduras with a lengthy criminal record and history of crack cocaine addiction worked as a prostitute without telling his clients he was HIV positive, but a Federal Court judge dismissed the government’s claim he poses a danger to society, allowing him to remain in Canada.

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

VISA OFFICER MUST CONSIDER MEDICAL PLAN FOR HIV POSITVE APPLICANT

In accordance with jurisprudence set out by the Supreme Court of Canada , the visa officer had to consider the arrangements made by the applicant to cover his significant medical expenses, which he failed to do. Therefore, the decision to refuse a visa was quashed. However, the basic problem with the question of medical expenses, is that there are no mechanisms for compliance or enforcement after the person becomes a permanent resident. Should there be a way to enforce the promises made by applicants that they will execute a specific medical plan and not rely on the public purse? That is a political debate, not a legal one, but nonetheless worth having in Canada.


Ovalle v. Canada (Minister of Citizenship and Immigration)
Between

Nestor Diaz Ovalle, Applicant, and

The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 523

2012 FC 507
Docket IMM-3764-11
Federal Court

Toronto, Ontario


O'Reilly J.
Heard: January 12, 2012.

Judgment: May 2, 2012.

(11 paras.)
______________________________________

REASONS FOR JUDGMENT AND JUDGMENT

O'REILLY J.:--

• I. Overview

1 Mr. Nestor Diaz Ovalle, a citizen of Panama, applied for permanent residence in Canada as a skilled worker. Mr. Ovalle is HIV positive.

2 A visa officer at the Canadian Embassy in Guatemala concluded that Mr. Ovalle was inadmissible to Canada on medical grounds; that is, he might cause excessive demands on Canadian health services. Mr. Ovalle argues that the officer failed to consider his detailed plan for managing his medical expenses, according to which he would receive medication at no cost from a charitable organization. In any case, he also had health coverage with his prospective Canadian employer that would cover the cost of medication, if necessary.

3 The officer's decision, according to Mr. Ovalle, was unreasonable. I agree. The officer did not appear to give any consideration to Mr. Ovalle's submissions relating to his medical expenses. Accordingly, I must allow this application for judicial review and order another officer to reconsider Mr. Ovalle's application for permanent residence.

4 The sole issue is whether the officer's decision was unreasonable.



• II. The Officer's Decision

5 The officer relied on the opinion of a medical doctor who expressed a concern that Mr. Ovalle would need ongoing treatment with anti-retroviral drugs and close monitoring. The officer sought Mr. Ovalle's input on that issue and gave him a chance to submit a plan to offset the demand that he might impose on Canadian services.

6 In response, Mr. Ovalle provided the following information:



• * His doctor stated that he had been given anti-retroviral treatment since 2001 and had responded well. If this treatment continued, he would likely enjoy good health for the next 5 to 10 years.



• * A non-profit organization called "Aid for AIDS International" had been providing medication to Mr. Ovalle at no cost since April 2009. It was willing to continue to do so permanently, even if he moved to Canada.



• * Mr. Ovalle's prospective Canadian employer stated that he would be covered under the firm's health care plan for at least $1500 per year.



• * Mr. Ovalle agreed to assume responsibility for the social services he would require in Canada, and would not look to the federal or provincial government to fund those services.



• * The estimated cost of Mr. Ovalle's medication was about $1500 per month, or $18,000 per year.



• * The Maple Leaf Medical Clinic in Toronto concluded that Mr. Ovalle should have a life expectancy similar to someone who is HIV negative. He would require 2 or 3 clinic visits a year, but his demands on public health would be minimal.

7 The officer forwarded this information to a medical officer who noted that Mr. Ovalle's diagnosis and prognosis had not changed. The officer relied on that opinion to conclude that Mr. Ovalle was inadmissible to Canada on medical grounds (Immigration and Refugee Protection Act, SC 2001, c 27, s 38(1)(c) - see Annex).



• III. Was the Officer's Decision Unreasonable?

8 The Minister argues that the officer's decision was reasonable, given that it was based on the evidence before him. That evidence did not displace the officer's concern about the magnitude of Canadian health resources that Mr. Ovalle would require.

9 I disagree. While the officer had detailed information before him about the medication Mr. Ovalle would require, its cost, and his ability to meet that cost, the officer merely reiterated the medical officer's opinion that Mr. Ovalle's diagnosis and prognosis had not changed. But neither the prognosis nor the diagnosis was the issue. There was no dispute about that. The issue was whether Mr. Ovalle would impose an excessive demand on Canadian resources. The officer did not address that issue in his reasons. It is not possible, therefore, to understand the basis for his conclusion that Mr. Ovalle's plan was not satisfactory.

10 Accordingly, the officer's decision was unreasonable.



• IV. Conclusion and Disposition

11 The officer did not explain why, given his detailed plan to cover the cost of his medication, Mr. Ovalle remained medically inadmissible to Canada. Therefore, his conclusion was unreasonable. I must, therefore, allow this application for judicial review and order another officer to reconsider Mr. Ovalle's application. Neither party proposed a question of general importance for me to certify, and none is stated.

JUDGMENT



• THIS COURT'S JUDGMENT is that:



• 1. The application for judicial review is allowed. The matter is referred back for reconsideration by another officer.

• 2. No question of general importance is stated.

O'REILLY J.