The Federal Court has slammed an immigration tribunal adjudicator for acting as “moral police” in denying an HIV-positive man permission to reunite with his daughters in Canada, blaming him for contracting the virus from an affair.
In chastising Michael Sterlin, the decision-maker at the immigration appeal division (IAD) tribunal, the court said that how the 62-year-old immigration applicant got HIV had nothing to do with the sponsorship case. To protect the man’s privacy, he was only randomly identified by court as A.B.
“The circumstances under which Mr. A.B. contracted HIV are wholly irrelevant to the issue before the IAD, as are any issues related to the applicant’s father’s moral character,” said Justice Shirzad Ahmed in a recent decision to send the case back to the tribunal for a new assessment.
“The IAD appears to make judgments against Mr. A.B.’s moral character, and in doing so, the IAD acts as moral police.”
In 2009, one of A.B.’s two daughters — who are both Canadian citizens living in Ottawa — applied to sponsor him and his wife to come to Canada under family reunification.
During the course of A.B.’s medical exam, a routine requirement in the immigration process, it was discovered that he is HIV-positive. In 2013, immigration officials informed the family that his health condition would cause “excessive demand” on Canadian health services and his sponsorship application would probably be denied.
Although the family was willing and able to cover the cost of A.B.’s anti-retroviral medications and requested humanitarian and compassionate relief, Immigration Canada refused the application in 2014. The family subsequently appealed to the tribunal.
Last year, the tribunal upheld the immigration decision, concluding that there were “insufficient humanitarian and compassionate considerations to grant special relief.”
A.B.’s two daughters had argued that they were the only children and had the responsibility to care for their parents, who would be ostracized in their native China and suffer discrimination and prejudice because of his HIV status.
“The reason why it is claimed the family will shun (the couple) is a perception that such patients have loose morals, in that a key way the virus is transmitted is by having sex,” Sterlin, the tribunal adjudicator, wrote in dismissing the family’s appeal.
“In fact, it turns out that the father did get the virus from having an affair. It is noteworthy, perhaps, that this did not come out until the panel directly asked the appellant why her father had the virus.
“If there is any antipathy, the panel finds, then it would most likely be against the father for risking a long-standing marriage by having an affair in his middle age or later,” continued Sterlin, who left the tribunal last June shortly after he rendered his decision on A.B.’s case.
“It is unfortunate that the father had an affair which led him to become HIV positive. However this was, again, a risk he took, which was unlikely but reasonably foreseeable, and it has unfortunately presented him with very significant problems.”
Wennie Lee, the family’s lawyer, said her clients were pleased that the court quashed the tribunal decision and ordered a new hearing into the request for humanitarian and compassionate relief.
“It is a significant court decision as it provides clear direction to the tribunal to truly apply compassion in deciding whether to exercise (the humanitarian and compassionate) relief,” she said.
“For my clients, in the Chinese culture, where personal and community connections are of paramount importance, social exclusion because of HIV status takes on added significance and importance.”
Lawyer Meagan Johnston for the HIV & AIDS Legal Clinic Ontario, one of two intervening parties in the court case, said people with the virus are a dominant group negatively affected by immigration’s “medical inadmissibility” policy that prevents them from immigrating.
In fact, immigration data shows 74 per cent of economic-class immigration applicants with HIV were found to be inadmissible to Canada in 2014 alone, she said, while 61 per cent of those with the virus were denied a work permit or study visa.
“It is repugnant that they are not given a fair chance and their HIV status and morality is used against them in their applications,” Johnston said. “That kind of attitudes against people with HIV is more common than what Canadians would like to admit.”
The immigration appeal tribunal declined to comment on the decision. Sterlin could not be reached for comment.
A spokesperson for the tribunal, which is part of the Immigration and Refugee Board, said the board does not have guidelines addressing cases involving person with HIV and AIDS specifically, but its procedures with respect to “vulnerable persons” speaks to the need to treat vulnerable individuals with “sensitivity and respect.”