Immigration Department’s Appeal Dismissed

CIC News
Published: June 1, 2003

The Citizenship and Immigration department is bracing for a flood of multi-million dollar lawsuits after a panel of judges upheld a controversial ruling that said federal bureaucrats misled Parliament about severe backlogs in the immigration system.

The decision, handed down on Thursday by the Federal Court of Appeal, alters the fate of more than 100,000 prospective immigrants, who applied for visas under old entry rules but were not assessed before tougher standards were adopted last year.

The ruling, which could ultimately cost the government millions of dollars in compensation, is just the latest development in a politically charged case already rife with accusations of lies and deception.

That rhetoric reached a fever pitch this year, when the original judge took the unprecedented step of clarifying his decision after Denis Coderre, the Citizenship and Immigration Minister, insisted it was only a draft.

A spokeswoman for the department said last night the government is still reviewing Thursday's ruling, but lawyers who represent the affected immigrants said the judgment leaves the Minister with only two choices: He can either refund everyone's processing fees or assess the 104,000 applicants under the old rules.

If neither happens, they say, the government could spend years -- and millions of dollars -- fighting each claim in court.

"The government is reaping the consequences of a very ill-conceived policy," said Lorne Waldman, a Toronto immigration lawyer who argued against the government's appeal. "The government pulled the rug out from under them without warning -- after they collected their money."

The roots of Mr. Coderre's looming dilemma can be traced back to December, 2001, when the government announced its new Immigration and Refugee Protection Act, which included a new points system to assess skilled workers applying for entry into Canada.

It emphasizes such assets as postgraduate education, fluency in both official languages and Canadian work experience.

However, because many would-be immigrants had already applied under the older, more lenient regulations -- and paid the $500 processing fee -- Mr. Coderre announced the government would extend the deadline for processing old applications to March 31, 2003, from Dec. 31, 2002.

His announcement followed the recommendation of a parliamentary committee, which was told by a senior bureaucrat that the backlog, estimated to be approximately 30,000 applicants, could be erased within three months.

But in a Federal Court ruling released in February, Mr. Justice Michael Kelen reached a far different conclusion.

He said the department supplied "significantly incorrect numbers" to the parliamentary committee, and when bureaucrats realized the backlog actually affected between 80,000 and 120,000 people, they "did not inform Parliament of this error."

In the process, he said, the government pocketed $125-million while ignoring "the outstanding applicants as if there was no looming deadline."

The judge ordered all 102 prospective immigrants who filed the claim to be immediately appraised under the old criteria.

Government lawyers filed an appeal, arguing that although Judge Kelen's decision did not encompass every immigrant caught in the backlog, the case had the potential to set a dangerous and costly precedent.

A three-judge panel dismissed the appeal, saying the issue is moot because the 102 applicants have already been interviewed according to the expired regulations.

That ruling paves the way for every other immigrant hampered by the rule change to file a similar suit. More than 7,000 -- a combination of 78 separate claims -- have already done so.

Lawyers representing those litigants say unless the government wants to spend billions of dollars fighting each of the claims in court, Mr. Coderre has little choice but to assess them under the old rules.

"They've got to reconsider what they're doing," said Marvin Moses, who represents some of the immigrants who filed the original suit. "If they had devoted their resources equally the way they have devoted them for these 100 cases, there wouldn't need to be so long in due processing."

Diane Ablonczy, the immigration critic for the Canadian Alliance, called on Mr. Coderre not to appeal Thursday's ruling to the Supreme Court of Canada.

"This is a department that says it does not have enough money to properly process applications overseas, and yet they've got money to cover their backside through all kinds of appeals and legal avenues," she said yesterday. "They should check their priorities."

Ms. Ablonczy also said the bureaucrats who lied to Parliament should be punished.

"As a Canadian and as a democratic, it is just outrageous that a government could actually mislead the democratically elected Parliament of a country with impunity and then try to hide behind court appeals to disguise that fact," she said. "This is about the reputation of our country internationally. We said to people: 'These are the rules. Here's the fee.' And then after people did all of that, we changed the rules in the middle of the game."

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