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Canadian Immigration Policy and HIV Positive Applicants

Canadian Immigration Policy and HIV Positive Applicants

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An essay for the 2012 Undergraduate Awards (International Programme) Competition by Sarah Rokosh. Originally submitted for Sociology at McGill University, with lecturer Dr. Sarah Berry in the category of Social Studies
An essay for the 2012 Undergraduate Awards (International Programme) Competition by Sarah Rokosh. Originally submitted for Sociology at McGill University, with lecturer Dr. Sarah Berry in the category of Social Studies

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Published by: Undergraduate Awards on Aug 31, 2012
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08/19/2014

 
1
Canadian Immigration Policy and HIV Positive Applicants
Abstract:
The Immigration and Refugee Protection Act of 2002 limits the immigration freedom of HIV positive individuals into Canada on the grounds that any foreign nationals taking antiretroviral (ARV)medication are likely to cause excessive demand on health and/or social services. The Canadiangovernment upholds that this action is taken to protect the services offered to its citizens; however, thefollowing analysis of several court appeals demonstrates that the Canadian government rejects theseHIV positive applicants to protect the public purse rather than the health of its public. The Hilewitz &De Jong vs. Canada appeal established that an individual’s financial means should be taken intoconsideration. In response, the Canadian government devised Operational Bulletin 63, whichencouraged applicants deemed medically inadmissible to submit declarations of financial intent tooffset costs of respective health issues. The Federal Court of Canada concluded that ability to pay didnot apply to health services because Canadian healthcare is universal, and thus there is no possiblemechanism for individual contributions or governmental recuperation of cost; therefore, the decision toexclude health care services from Operational Bulletin 63 was purely monetary, as illustrated in thecourt cases of Companioni vs. Canada and Rashid vs. Canada, andwas not made out of concern for theavailability of health services for Canadian citizens. The Canadian government’s exclusion of HIV positive applicants taking ARVepitomizes the tension between monetary and human concerns in theCanadian health care system. 
Keywords:
Canada; Immigration; HIV; Policy; Health Services
 
2The Immigration and Refugee Protection Act of 2002 limits the immigration freedom of HIV positive individuals into Canada (Sontag, 2001; Immigration and Refugee Protection Act [IRPA],2011). This act states that a foreign national is inadmissible to Canada on health grounds if his or her health condition is 1) potentially dangerous to public health, 2) potentially dangerous to public safety,or 3) likely to cause excessive demand on health and/or social services (IRPA, 2011). Although thefirst two reasons are rarely used against persons with HIV, the third precludes the majority of HIV positive individuals from immigrating. Excessive demand is defined as exceeding $15,000 of government funded health care costs over five years or $30,000 over ten years (IRPA, 2011). Thus, notall individuals who are HIV positive are refused by Immigration Canada; however, all applicants takingantiretroviral (ARV) drugs are considered inadmissible due to excessive demand. For those applicantswho are not taking ARV and test positive, their CD4 lymphocyte count is used to determine their expected demand on Canada's health and social services (Battista, 2010). In effect, the Immigrationand Refugee Protection Act prohibits the immigration of a large majority of HIV positive applicants.Via the analysis of several court appeals by applicants rejected on the grounds of excessive demand,namely HIV positive applicants, I intend to address the following: is Canadian immigration policytowards HIV positive foreign nationals governed by profit motives and the intent to avoid deficits, or  by the desire to provide for the health care needs of its current population?Canadian immigration policy towards HIV positive foreign national applicants illustratesconflict theorist Vincente Navarro's notion, as noted in Clarke (2008), “that there is a contradictoryrelationship between capitalism...and the health needs of the population” (p. 13). In this instance,'capitalism' references the benefit derived by the Canadian government from precluding HIV positiveapplicants and 'population' refers to Canadian citizens and foreign applicants alike. As detailed byBerry (2011) in her lecture series 'Theoretical Perspectives I' and 'Theoretical Perspectives II', thisconflict of interest can negatively affect the health outcomes of individuals as highlighted by the court
 
3appeals noted in this paper.As aforementioned, the Canadian government, compliant to its Immigration and RefugeeProtection Act (2011), rejects the majority of HIV positive applicants on the grounds of excessivedemand. As justification, the government upholds its motivation is to act in the best interest of theCanadian population, declaring in the Immigration and Refugee Protection Regulations (2011) thatrejection of these applicants prevents “a demand on health services or social services that would add toexisting waiting lists and would increase the rate of mortality and morbidity in Canada as a result of aninability to provide timely services to Canadian citizens or permanent residents” (p.1). Important tonote is the absence of concern with respect to the ability of the government to finance treatment.Money is never referenced; instead, the reasoning notes 'waiting lists' and the provision of 'timelyservices' as the sole point of contention. However, on examination of immigration policy, projectedreforms, and each individual's appeal support, the Canadian government appears to reject these HIV positive applicants to protect the public purse rather than the health of its public.The Hilewitz case was the first to bring into question the immigration policy put forth by theCanadian government with respect to the assessment of excessive demand. David Hilewitz applied for  permanent residency under “investor” status in 1999. This category requires that the applicant possesses a minimum net worth of $800,000, a significant business background, and a substantialcommitment to invest financially in Canada (Hilewitz & De Jong v. Canada [HDVC]
 ,
2005). Hilewitzmet these requirements. However, investigators deemed Hilewitz's 17-year-old developmentallydelayed son medically inadmissible because he would require services in excess of those of a typicalCanadian, and thus place excessive demand on social services. In response, Hilewitz cited hisfoundation of a private school for his son and other children with developmental disabilities in SouthAfrica and asserted his ability to independently cover the cost of Canadian private school for his son(HDVC, 2005). Despite Hilewitz's assurances, he was rejected on the grounds of his dependent's

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