I'm sorry. Thank you for that helpful hint.
The HIV and AIDS Legal Clinic Ontario is a non-profit legal aid clinic that has provided legal services to people who are living with HIV/AIDS in Ontario since 1995. Of the 4,000 requests for our services we receive on an annual basis, a significant proportion are in the immigration and refugee law area, and we have provided legal assistance over the years to hundreds of HIV-positive individuals seeking refuge in Canada.
Just to give a bit of context before I move into remarks on the bill, the situation of HIV-positive Canadians has improved dramatically over the past 20 years. With the advent of effective anti-retroviral treatment, many Canadians now enjoy a close to average life expectancy.
Unfortunately, in many parts of the developing world, HIV remains effectively a death sentence. The problems range from a vastly reduced lifespan due to a lack of HIV medications to the interference that general civil strife and economic instability pose to the delivery of health care services, and of course to a public hostile to HIV-positive persons in a way that would be difficult for any of us to fully comprehend. I am speaking about outright rejection by family and friends, expulsion from communities for fear of disease, and near impossibility of finding employment or housing.
The situation faced by HIV-positive asylum seekers and others without status in Canada highlights the very reason why H and C relief has historically been available and remains critical today. The idea behind H and C relief is to provide discretionary relief in cases not anticipated by the immigration legislation; that is to say, for those people who fall through the cracks.
One oft-cited tribunal case from 1970, Chirwa, characterizes H and C relief as applying in those cases that would induce a reasonable person in a civilized community a desire to relieve the misfortunes of another. It's an analysis that entails looking at an individual as the whole of their parts, in all of their circumstances.
Of course, H and C relief is discretionary and the onus is on the applicant to prove his or her case. There are no hard and fast rules about which cases ought to be accepted. The department's guidelines on H and C applications speak only of undue, undeserved, or disproportionate hardship.
Over the past 15 years, countless of my clinic's clients living with HIV who face extreme hardship in their countries of origin have been accepted on H and C grounds. This goes equally for failed refugee claimants and for those who've never made refugee claims.
If Bill C-11 is accepted in its current form without amendment, most if not all of those successful H and C applications would have been impossible to make in the first place, or, if made, would not have been accepted. The result would be deportations of individuals and families with HIV--who may be leading healthy and productive lives in Canada--to situations abroad where their lives are in danger due to impoverished health care systems, or to lives of misery generally because of serious restrictions on basic human rights.
The two sections of concern are, first, the proposed subsection 25(1.2), which bars H and C applications from refugee claimants during their claim or for one year following a refused claim. The other section is proposed subsection 25(1.3), which prevents all H and C applicants from raising arguments related to personalized risk.
On the issue of the one-year bar, it is very common for HIV-positive claimants to make an H and C application immediately after their refugee claim is denied when there is inadequate health care for HIV in their country. The Immigration and Refugee Board is not able to consider a risk to life owing to inadequate health care because it's excluded explicitly in IRPA under subparagraph 97(1 )(b)(iv).
The IRB is simply not able to accept these claimants where their life is at risk owing to their HIV status. An H and C officer can and--in practically all circumstances that I have experienced--does accept those cases. The one-year bar on H and Cs will make these applications impossible.
To make matters worse, most asylum seekers are not aware of their HIV status until they report for the medical examination required of refugee claimants. By then it's too late to choose to file an H and C application in lieu of a refugee claim, because even those who withdrew their refugee claims would face the one-year bar.
We believe the one-year bar would also result in driving refused claimants who have a strong H and C case underground. After all, if an individual knows they have a strong H and C case and the harm they face in their country is substantial, it's natural that this person would do everything in their power to evade enforcement and stay in Canada, hoping that after the one year has passed they might be able to file an H and C application that could be considered. This of course would lead to increased enforcement expenses and costly litigation.
As has been stated by witnesses who have appeared before the committee, the fact of filing an agency application does not result in any kind of hold on removal proceedings. Many witnesses have questioned the need for the one-year bar, or the bar on simultaneous agency applications, and I echo those comments.