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Poz couple wins immigration case

Poz couple wins immigration case

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Immigration okayed if gay couple can pay their own drug bills
An American couple has won a federal court case that could change the way Canada treats would-be immigrants who are HIV-positive.

Justice Sean Harrington's December 31 decision could be appealed before the end of January, but if it stands, it will make it easier for applicants who can afford to cover their own prescription costs to immigrate.

Canada does not have a blanket ban on HIV-positive immigrants, but most applicants are rejected by Citizenship and Immigration Canada (CIC) on the grounds that they would impose "excessive demand" on health or social services. This is an issue for people with any number of health conditions, but it is a major concern for applicants with HIV.

The case in question concerns Ricardo Companioni, an American programmer who was initially approved to immigrate as a skilled worker. He and his partner are both HIV-positive, and while they are expected to remain healthy for at least the next 10 years, the period that CIC considers, their drugs cost a combined $33,500 every year.

The couple promised to cover their own costs if they could not obtain employer health insurance and showed that they had half a million dollars in assets, but were still rejected based on excessive demand.

"I was really shocked that they rejected the application, especially at that stage of the game," says Companioni. "Why didn't they reject the application sooner, before they made us do all this other stuff, get notarized letters, on and on?"

On the advice of a Toronto lawyer, Michael Battista, Companioni and Grover decided to appeal. Thanks to Justice Harrington's decision, their case will be sent back to another officer for consideration. But the decision has broader implications, because it extends a 2005 Supreme Court decision on excessive demand.

In Hilewitz v Canada, a family was refused permanent residence on the grounds that their disabled son would impose an excessive demand on social services. The family had promised to place their son in private care. Ruling in favour of the family, the court held that CIC had to take into account each applicant's individual circumstances before refusing them based on excessive demand. Justice Harrington's new decision extends the Hilewitz reasoning from social services to prescription drug costs.

"This changes the law for people with HIV in a beneficial way because, previous to this, their willingness, their capacity to finance their prescription medication themselves was not considered by Immigration," says Battista. "That's a good thing, because in my experience, having HIV was almost always an automatic refusal, just on the mere potential to access provincial drug plans."

The decision could still be appealed though, and Companioni is not sure what he will do if that happens.

"I would like to [continue in court] but not if it's going to cost a lot of money, because I've already spent $10,000. Here I am two years later and I still don't have my visa," he says. "But I understand that the law can't change or move forward unless people are willing to go to court."

In fact, quiet changes may already be underway. Even though the Hilewitz decision was restricted to social services, John Norquay, an immigration lawyer at the HIV and AIDS Legal Clinic of Ontario (HALCO) who formally intervened in the Companioni case, says that immigration officers have been applying it to prescription drug costs. Some HIV-positive applicants may already have been admitted to Canada based on Hilewitz, but so far Norquay is only aware of incomplete cases.

Beyond these technical issues, questions remain about the constitutionality of the excessive demand clause. The Supreme Court could have addressed this in the Hilewitz case, but as higher courts often do, it chose to rule on a narrower question instead. That doesn't mean that another case will not call the clause into question though, and HALCO and other organizations are getting ready.

"Our position is still that the excessive demand provision is overly broad, and that it's essentially unjustifiably discriminatory," says Norquay. "Because the grounds that they are refusing people on — a medical condition — is so strongly related to disability, which is a prohibited ground of discrimination, we think there is probably some angle to litigate this. We're still in the early stages of planning what the right strategy is for that."

For more information about HALCO or to make a donation, go to halco.org.
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Comments

Costs
For all the people going on about costs, the couple are highly-skilled migrants : computer programmers. Most of the programmers I know pay far more into the tax system than a mere $33000 per annum (cf article)!
My Understanding of Canada Weakens ...
Looking at the article, the comments, the point of view of Canadians in general regarding HIV is depressing. The medications should be cheaper but the government supports business not people. Canada is all about business and your government care nothing for the human factor. Regardless of cost people bring with them other than health issues talents and creativity. Creativity lacking in a country of the milk toast mindless. Shame on you HALCO both milk and toast!
they're paying their own costs
This couple is paying for their own meds so will not be a burden on the health care system whatsoever, they have proven that they have the money to do so, in order to get subsidized meds in Canada you have to prove that you do not have the money to pay for your own. Getting subsidized meds is not as easy as some other posters seem to think, its not like once they get here they can keep all their money and go on the subsidized plan, they won't be accepted because they have the money to pay for it themselves. I suspect much of the of the opposition to these folks immigrating here has a lot more to do with a knee jerk anti-immigrant stance than a genuine concern for the financial stability of our country, that or an inability to comprehend the words in this article which I suppose is possible but they were able to spell correctly so I doubt they're that incompetent.
Re: poz couple wins discriminate case
We have a right as Canadian taxpayers to decide how many of the world's health care costs we are willing to absorb. If we lose the right to that choice, we lose the right to our own health care which all Canadians pay for; we can't afford to extend our health care to the rest of the world.It's time that countries like the United States take care of their own. Just because they refuse to do that doesn't oblige us to do it.They have the money; we dont'. let them show some compassion for those among them who can't afford health care. We can't afford to take it on.
This is NOT great news
We in this country are under absolutely no obligation what so ever to provide care for these people. They are not Canadian citizens and do not live here and are thus not subject to our laws or privileges. Our health care system is meant for us not them. Maybe I am being cynical but I highly doubt that anyone in this or a similar situation would be paying for thier own health care for very long period. I know that I would try to stop paying for care myself as soon as possibal because it's really expensive. Why the hell would we expect anything else from these people?
Great News
I am glad to hear about the loosening of the ban.. at least to the extent that it looks.

I hope it may one day be lessened even more, for people like me... who are disabled, but would rather live in a more accepting environment than here in the US.
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