Canadian court rules IRCC took too long to process immigration application

Michael Schwartz
Published: August 23, 2021

People who want to immigrate to Canada often have to wait a long time until they receive a decision on their permanent residency application. The waiting period can drag on for months or even years.

There are things an applicant can do to reduce delays, though. Submitting an application that is accurate and organized is one way. Another is seeking legal advice to identify and deal with any issues that might come up. After submission, an applicant, or an agent such as a lawyer, can make enquiries with Immigration, Refugees and Citizenship Canada (IRCC) and other government agencies.

Even though this case has become very complex, its issues are quite simple. The applicants are Ms. Ghufran Almutadi and Mr. Abdulrhman Taskia. They were both born in Syria and are Syrian citizens. They moved separately to Saudi Arabia, married, and lived there without becoming citizens.

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In 2015, Mr. Taskia experienced major financial problems. Mr. Taskia’s status in Saudi Arabia was dependent on his financial situation. As a result, the couple became concerned about their ability to stay there. However, they claimed they could not go back to Syria due to government persecution.

In 2016, the couple came to Canada and sought refugee protection. Later that year, in late September, the Refugee Protection Division (RPD) confirmed this status. A few days after this decision, the couple applied for permanent residence in Canada.

In May 2018, the couple received their medical examination instructions, which they completed that same month. Canadian immigration authorities did not provide any updates or decisions after that point. Nor did they explain what was causing the delay.

Between May 2017 and April 2021, the couple made enquiries twice on their file. Even these efforts were unsuccessful. In February 2020, the couple applied for judicial review. They requested the Federal Court intervene and order IRCC to decide their application within seven days. They also sought $7,500 in solicitor-client costs from IRCC.

During pre-trial procedures, IRCC revealed that the element holding up the family’s application was the security review for Mr. Taskia. The couple state that they have family members in the Muslim Brotherhood, a radical Islamist group. The couple claimed that this family connection put them at risk of Syrian government persecution.

The question then boiled down to whether the processing delay was reasonable. The Court analyzed various factors. Is the delay much longer than normal? Is there justification? How disruptive is the impact on the applicants? The Court analyzed each.

IRCC argued that COVID-19 and the need to do a thorough security review made the delay reasonable. It also noted that the security review depended on organizations such as CSIS (Canadian Security Intelligence Service) which are outside IRCC. The applicants noted the distress and anxiety the lack of decision posed.

Ultimately, the Court decided that the delay was unacceptable. It issued a judgment requiring IRCC to issue a decision within 30 days. It also ordered $1,500 in costs to the applicants.

This case is unusual and striking. The Federal Court often analyzes decisions that IRCC has made, and sometimes orders them cancelled and re-analyzed. Here, however, the Court considered — and acted — in a case where IRCC had not yet made a decision. This decision is attracting a great deal of attention and excitement. The Court itself noted that ordering IRCC to process an application in a set time was "extraordinary."

Other people who have been waiting a long time may wonder if they can obtain a similar order. Each case is different, though. It remains to be seen whether the Court will make a similar ruling in other situations.

Also, the federal government has the right to take this decision to the Federal Court of Appeal. Due to the case’s potential impact, it seems likely the government will do so. It could argue that forcing IRCC to process an application when it does not have full security information poses a major risk. The Federal Court of Appeal might alter or overturn the lower court’s ruling. In theory, the case could go to the Supreme Court of Canada. Only time will tell us the full impact of this case.

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