FEDERAL COURT. and THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Transcription

1 D Court File No.: IMM FEDERAL COURT BETWEEN: Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent AFFIDAVIT OF DR. I, DR., Physician, of the City of Gatineau, in the Province of Quebec, MAKE OATH AND SAY AS FOLLOWS: 1. I obtained my degree in medicine from the Faculty of Medicine at the University in Ottawa, in Ontario, in 1975 and was licenced to practice medicine in the Province of Quebec in My curriculum vitae outlining my credentials and professional career as a physician, is Exhibit "A". 2. I initially worked as a contract physician from 1999 to 21 and since 21, I have been a permanent employee with the Department of Citizenship and Immigration ("CIC"), employed as a Medical Officer within the meaning of the Immigration and Refugee Protection Act.

2 D Since 2, as a Medical Officer with Immigration Health Services Branch within CIC in Ottawa, my primary responsibility is to assess and evaluate the results of medical examinations completed abroad (and sometimes in Canada) by Designated Medical Practitioners, of prospective immigrants to Canada. I review and evaluate the results of all medical examinations and tests and thereafter advise Visa Officers if the prospective immigrant has a medical condition described in section 38 of the Immigration and Refugee Protection Act, and is therefore medically inadmissible to Canada as an immigrant. 4. On November 29, 21, I signed a "Medical Notification" form describing the health condition of the Applicant. I stated my professional opinion that because he is HIV positive, a medical condition which will persist and will soon require very expensive publicly-funded antiretroviral medication to manage; he might reasonably be expected to cause excessive demand on Canada's health services. A copy of my Medical Notification appears at page 58 of the Visa Office Certified Tribunal Record ("Visa CTR"). 5. The Applicant is a 47 year old male citizen of the United States, living and working legally in Canada. As part of CIC's processing of the Applicant's application seeking an immigrant visa, the Applicant underwent a mandatory medical examination conducted by Dr. on September 7, 21, in Vancouver, Canada. Dr. reported that the Applicant is Human Immunodeficiency Virus (HIV) positive. Dr. stated the

3 -3- Applicant's prognosis depends upon his response to treatment. Dr. Medical Report and the additional documents he submitted to CIC, are attached as Exhibit "8" at my Affidavit. 6. When the Applicant's HIV positive medical condition came to my attention through our receipt in Ottawa of Dr. "Medical Report" and enclosed documents, the Medical Assessment Unit at my office wrote to the Applicant, informing him that we required additional medical information on his HIV positive status, in order to reach a final decision in his case. Our written request for further medical information (dated September 2, 21 ) requested a recent report from an HIV clinic, providing the following additional information to permit us to accurately assess the Applicant's HIV positive medical condition: (a) (b) (c) (d) his need for Anti-retroviral medication ("ARV") within the next 5-1 years; his CD 4 Viral load; any AIDS defining condition; and his prognosis. 7. Our medical "Furtherance" Form and our letter to the Applicant asking him to obtain and provide this additional medical information to us, are attached as Exhibit "C" to my Affidavit.

4 G The Applicant was accordingly referred by Dr. to Dr. at the Immunodeficiency Clinic at St. Paul's Hospital in Vancouver, who provided a report dated November 15, 21. Dr. stated that based upon the Applicant's most current CD4 count and HIV viral load, he could meet the current recommended guidelines for commencing expensive antiretroviral drug therapy as soon as within 1 year. Dr. report is attached as Exhibit "" to my Affidavit. 9. Based upon all the medical information I received and noting particularly the Applicant's current stage of HIV infection and his probable need to begin antiretroviral medication in the next few years, I completed a "Medical Notification" on November 29, 21 (page 58 of the Visa CTR). I identified the Applicant's current medical condition as being HIV positive and stated my professional opinion that he will likely require expensive and publicly-funded antiretroviral medication to treat and manage his HIV positive condition within the next few years. 1. I provided my "Medical Notification" to Ms., the Visa Officer in New York processing the Applicant's application seeking an immigrant visa. On March 29, 211, Ms. wrote to the Applicant, providing him with my "Medical Notification" and giving him 2 months to provide his response to it, if he wished to do so (pages 59-6 of the Visa CTR).

5 In July of 211, the Applicant's Toronto lawyer sent additional materials in response, to Visa Officer and she accordingly sent those materials on to me for my consideration (pages 7-18 of the Visa CTR). 12. In December of 211, I reviewed this additional information from the Applicant's Toronto lawyer, who provided a letter dated July 26, 211, with further submissions on the issue of the Applicant's medical inadmissibility. With his letter, the lawyer enclosed the following documents: (a) (b) (c) Declaration of Ability and Intent sworn July 22, 211; Canadian Work Permit with an expiry date of September 3, 212; Financial Documentation: (i) Printout of summary of account with Vancity dated July 1, 211; (ii) Statement of account with HSBC dated June 16, 211; (d) (iii) (iv) (v) (vi) (vii) (viii) Printout of summary of account with Charles Schwab dated July 4, 211; Printout of summary of accounts with Questrade dated July 1, 211; Printout of account balance with Serre Financial dated July 1, 211; 211 Property Assessment Notice; 211 Property Tax bill; Certificate of ownership of stocks with dated November 9, 1994; Employment Documentation: (i) Letter from, General Manager, dated July 7, 211;

6 -6- (e) Letter from Dr., dated July 22, 211; (f) (g) Printout of summary of benefits with Manulife Financial dated July 1, 211 with an indication of coverage for some commonly prescribed HIV medications; Group Insurance Plan with Chambers of Commerce dated May 5, 211; and (h) Dr. medical report dated July 19, 211, estimating the cost of antiretroviral medication to be $14,275 (in Ontario) each year. 13. By December 2, 211, I had reviewed all of this new information in light of the Applicant's entire medical file, and concluded that the additional material did not modify my existing opinion that the Applicant is medically inadmissible. In particular, I noted the following: Applicant will likely require in a year or so, are very expensive; the Applicant's lawyer agreed that the antiretroviral drugs the the Applicant's lawyer pointed to 3 insurance plans, suggesting they may pay for the cost of the expensive drug therapy, noting "... there is no incentive for Mr. to rely upon provincial funding of his medication"; an indirect admission that the province of British Columbia does publicly fund and provide the HIV medication the Applicant will soon require; in British Columbia, the HIV medication the Applicant will require is funded by the provincial PharmaCare Plan and provided at no cost to British Columbia residents who medically require it, through the British Columbia Centre for Excellence in HIV/AIDS;

7 -7- a Toronto specialist.in infectious diseases specializing in HIV, who reviewed the Applicant's medical records, Dr., agreed that "... it is reasonable to assume" and "foreseeable" that the Applicant will require expensive antiretroviral drug therapy "within the next few years... " at a cost (in Ontario) of $14,275 each year; while the Applicant provided printouts from his Manulife Financial insurance policy which seem to indicate some common antiretroviral drugs are eligible under his plan, he fails to mention those same drugs would be available to him free of charge, should he become a permanent resident of British Columbia. 14. I fully understood that the thrust of the Applicant's submission, was that his health insurance had indicated that in theory, they would cover the cost of some commonly prescribed HIV medications. However, since the Applicant had not yet commenced taking antiretroviral medication, his health insurance was not currently paying for any medication. The problem is that once health plans establish that very expensive medication is provided free of charge to patients in certain jurisdictions, they refuse to cover the cost of those drugs under their insurance plans. The Applicant in this case, failed to provide me with any evidence that any of his health insurers would actually fund the cost of his medication, if he submitted a claim as a resident of British Columbia who was entitled to receive those drugs free of charge under British Columbia's PharmaCare Plan. In other words, an abstract statement from an insurer that a drug is "eligible" under an insurance plan, is no guarantee that the insurer will actually pay for that drug, when a claim is actually made for it,

8 -8- when the government provides that same drug at taxpayer expense in that specific jurisdiction. 15. I accordingly wrote to Ms. the processing Visa Officer in New York, advising her I had received and reviewed all of the additional materials received from the Applicant's Toronto lawyer, but these additional materials had not modified my opinion that the Applicant remains medically inadmissible to Canada as an immigrant. 16. I explained to her that this is because in spite of the Applicant's employment, assets and private health coverage, expensive antiretroviral medications for HIV positive persons residing in British Columbia are 1% funded by that province's PharmaCare provincial drug plan with no requirement for payment from private insurers. Thus, the admission of this Applicant might reasonably be expected to cost British Columbia's publiclyfunded provincial drug plan more than $14, each year, which is well in excess of the annual applicable cost threshold of $5,55. My to the New York Visa Officer explaining my conclusions appears at pages of the Visa CTR. 17. After Ms. received my of December 2, 211, explaining why my professional opinion remained unchanged in light of the Applicant's additional evidence, she did not contact me with any questions or concerns about it. She accordingly wrote the Applicant a letter dated

9 D -9- December 22, 211, refusing his application seeking an immigrant visa on the ground he is medically inadmissible (pages of the Visa CTR). 18. The next development on this file was our receipt of a new Immigration Medical Examination conducted on February 6, 212, by Dr. In Vancouver. This new medical exam was conducted in connection with a new sponsored immigrant visa application submitted by the Applicant in the spousal class. The results of the Applicanfs new medical exam appear as Exhibit "B" to Ms. s Affidavit filed in this case. 19. Now the Applicant, as a spouse of a Canadian citizen, can no longer be refused permanent residence due to his medical inadmissibility as he is "Excessive Demand Exempt" or ''EDE". On March 6, 212, I therefore confirmed that he is now medically admissible, in spite of his HIV positive status, because he is married to a Canadian. My decision appears at the last page of Exhibit "8" to Ms. s Affidavit filed in this case. 2. So the Applicant is challenging my outdated decision finding him medically inadmissible, since he is currently medically admissible in light of his new application seeking permanent residence, as a sponsored spouse of a Canadian citizen. SWORN before me at the City of Ottawa, in the Province of Ontario on August gth, 212. Commissioner for Taking ~its DR.