Newsletter:

Q1: Does every immigrant get tested for HIV?
A1: HIV testing is included in the medical examination. Generally, no medical examination is required for work permits of less than 6 months duration. However, a medical examination is required if an applicant is to work in an occupation in which protection of public health is essential. All foreign nationals who intend to be in Canada for more than 6 months and have resided in a designated country for more than 6 months within the year preceding arrival in Canada must pass the medical examination. The designated country/territory list includes most countries with exceptions such as countries in Western Europe, the U.S.A., Australia, New Zealand, Japan. You can see the complete list at http://www.cic.gc.ca/english/visit/dcl.html. Anyone 15 years or older applying for permanent residence must have a medical examination.

Q2: What will happen if I am sponsored for immigration to Canada by a Canadian and am HIV+?
A2: Spouses, common-law partners, conjugal partners, and dependent children who are HIV+ are exempt from medical inadmissibility due to excessive demand on health or social services. Grand-children and grandparents are not exempt.

Q3: What will happen if I am immigrating to Canada in the Economic Class and am HIV+?
A3: There are guidelines that the medical officers for Citizenship and Immigration Canada use for determining if someone who is HIV+ will be medically inadmissible. Generally, the immigrant applicant must not be on anti-retroviral medication and must have high T cell counts to be considered admissible.

Q4: What will happen if I am a Convention refugee and am HIV+?
A4: Convention refugees who are HIV+ are exempt from medical inadmissibility due to excessive demand on health or social services.

Q5: What options do I have if I am a Family Class sponsored grandchild or grandparent who has been refused because I am HIV+?
A5: Filing an appeal with the IAD is probably the best of the options. The grounds for an appeal to the IAD are:
 - Mistake of fact or law
 - Humanitarian and compassionate considerations that warrant the granting of special relief. This is significant because it gives a broader authority for decision-making to the IAD than either the visa officer initially assessing the application or a Federal Court judge on a judicial review application would have.

Q6: What options do I have if I am a Economic Class applicant whose application has been refused because I am HIV+?
A6: HIV positive Economic Class applicants who have been refused because of a determination of medical inadmissibility due to excessive demand may:
 - Apply for a Temporary Resident Permit
 - Apply to Federal Court for leave for judicial review of the medical inadmissibility decision

Q7: How does Citizenship and Immigration Canada decide to issue a Temporary Resident Permit?
A7: A TRP is issued under discretionary authority. No applicant has the right to receive a TRP.
The applicant must show compelling reasons-either humanitarian and compassionate or in the national interest.

A fuller discussion of HIV issues can be found in the article Overview of Canadian Immigration Law and Policies on HIV at: http://www.smith-hughes.com/papers/border.htm

If you have a question that you would like answered, email Rob at rhughes@smith-hughes.com