Appeals Tribunal Wrongfully Based Their Decision on the Applicant’s Morals While His Family Pleaded for Compassionate Relief

Many immigration applicants with disabilities and illnesses are denied immigration to Canada, with “excessive demand” on medical systems and resources cited as the justification. Even those whose families are able and willing to pay for health care costs can be denied because they are not given a clear definition of “excessive demand”. And sadly, as a result, those with stigmatized illnesses experience undue discrimination.

If family members can cover these health care costs, “excessive demand” is not a valid reason to deny someone entry to Canada, especially when they need their families the most. Canada’s family class sponsorship program is meant to reunite families, but certain biases in decision-making impacts the fairness of the reunification process.

In 2017, a decision-maker at the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada denied a man immigration to Canada because he contracted HIV from an extramarital affair. A 62-year-old immigration applicant (referred to as A.B.) wanted to reunite with his daughters in Canada through family sponsorship. Both daughters are Canadian citizens, and in 2009, one daughter applied to sponsor A.B. and his wife. She sought to bring them to Canada through family sponsorship.

Under family class sponsorship, sponsored family members must undergo medical, criminal, and background checks. Depending on the results of these checks, immigration officials determine whether applicants are admissible for immigration to Canada.

Unfortunately, A.B.’s medical check found he was HIV-positive. Immigration officials warned that his application would likely be denied due to the “excessive demand” his illness would place on Canada’s health care system. A.B.’s family was able and willing to cover his medical costs in Canada, and even requested humanitarian and compassionate relief. However, in 2014, Immigration Canada denied his application. The family appealed the decision at the IAD tribunal.

In 2017, the tribunal maintained the decision and denied the request for humanitarian and compassionate relief. A.B.’s daughters argued that he and his wife would be ostracized and discriminated against in their home country due to his HIV status. But the decision-maker wrote in his dismissal that those with HIV status are discriminated against due to the perception that they have loose morals since the virus can be transmitted during sex. And since A.B. took the risk of having an affair, risking his marriage and contracting the virus, the decision-maker did not offer compassionate relief.

Thankfully, a Federal Court Justice ruled that how he contracted HIV was totally irrelevant to his sponsorship case, and returned A.B.’s case to the IAD tribunal for a new assessment. Justice Shirzad Ahmed pointed out that the IAD decision-maker based his decision on moral character, acting as the “moral police.”

Like applicants with any other illness, if their families can sponsor them and cover their health care costs, “excessive demand” is not a valid reason for denial of an application. These vulnerable populations often need the support of their families more so than others. Immigration officials shouldn’t discriminate based on the type of illness or disability they have, which prevents family reunification and a better quality of life for the affected individuals..