Ovalle v MCI


Court Decision (Gavel)It’s been several weeks since I reviewed the recent court decisions.  I was glad to see a new one that is pertinent to my case: Ovalle v MCI (2012 FC 507).  It was argued by the same attorney that I am using and – interestingly enough – the government was represented by the same attorney as well.  At some point I suspect these two will feel like old friends (or perhaps rivals at least.)

At any rate, in this case, Mr. Ovalle applied for immigration, was HIV positive when he applied, was taking drugs provided to him by a non-profit known as Aid for AIDS International and they agreed to continue providing him with the drugs, even if he were to immigrate to Canada.  He also showed that he was stable and other than the meds, he would not be an excessive demand on the health services of Canada.

The medical officer reviewed the additional evidence and said that it did not change the diagnosis or prognosis.  The visa officer relied solely upon the feedback from the medical officer, discounted everything submitted by Mr. Ovalle, and rejected him.

The Court was not happy with this decision – this was reviewed strictly on the “fairness” of the actual decision (an admittedly challenging basis on which to win a decision):

While the officer had detailed information before him about the medication Mr. Ovalle would require, its cost, and his ability to meet that cost, the officer merely reiterated the medical officer’s opinion that Mr. Ovalle’s diagnosis and prognosis had not changed. But neither the prognosis nor the diagnosis was the issue. There was no dispute about that. The issue was whether Mr. Ovalle would impose an excessive demand on Canadian resources. The officer did not address that issue in his reasons. It is not possible, therefore, to understand the basis for his conclusion that Mr. Ovalle’s plan was not satisfactory.

(Paragraph 9).

As a result, the judge decided the decision was not reasonable.   Kudos to Justice O’Reilly in holding CIC accountable to the standards as set forth in Sapru v MCIas I previously discussed.

The decision in this case is a narrow one (e.g., it applies to the specifics of this case) but it does demonstrate that the Courts are not allowing the Minister to simply reject people without a reasonable explanation as to why they are being rejected.

My own case has now been pending a decision on my application (to see if we even get to have a hearing) for 27 days.  While there is no guarantee of any specific time frame, it is now longer than most decisions of this type based upon my review of other cases – I have seen as long as two months to make a decision (twice – once it was granted, once it was denied).

Only time will tell.

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One thought on “Ovalle v MCI

  1. hey bud i am glad to see this forum here and i have my well wishes for you. keep posting about what happened to your case because after an year i might be in your shoes as well coz i recently got tested for hep c and it came back positive and i am 8 months away from reapplkying for extension of my work permit and filinfg for my pr at the same time.

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