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Federal Skilled Worker Processing Litigation
CIC has replaced its previous policy of processing files in the order in which received to one where the more recent files are processed first. As a result, those whose files are not finalized within 18 months of receipt may never have their files assessed.
The Problem
The Litigation
Visa Posts Involved
The Procedure
Effect of the Decision
Steps to Take
The Problem
CIC's queue-jumping processing policy means that those whose files had not been assessed before it began its Last-in/First-out (LIFO) approach are unlikely to have their files assessed so long as the LIFO policy is enforced. Likewise, those who applied under the queue-jumping procedures but whose file had not been assessed before CIC turned it attention to whose who had applied after 26 June 2010 are unlikely to have their files assessed either.
From CIC's website, where it provides visa-post-specific processing times, the following charts have been fashioned by comparing the processing time alleged through April 27th with the claim through July 26th. It should, however, be noted that CIC website's claim does not necessarily jibe with what visa posts themselves tell applicants. For example, in May, Manila stated that it had ceased assessing files as of November 2004, whereas, according to CIC's website, in June it was assessing files lodged four months later.
Processing date for post-27 February 2008 files Visa Office Processing Dates for files lodged
between 27 February 2008 and 26 June 2010
27 April 2011 26 July 2011 Change Est. Elimination 27 April 2011 26 July 2011 Change Est. Elimination
See Dakar February 2008 -1 August 2016 Abidjan See Dakar no backlog
March 2004 May 2004 0 September 2018 Accra February 2010 no backlog
September 2007 November 2007 0 July 2015 Ankara February 2010 April 2010 0 September 2012
July 2007 July 2007 +2 never Beijing February 2010 January 2010 +3 never
August 2007 October 2007 0 April 2015 Berlin February 2010 March 2010 +1 never
July 2006 August 2006 +1 never Bogotá August 2010 May 2010 +5 never
February 2006 August 2006 -4 January 2013 Bucharest April 2010 April 2010 +2 January 2013
no backlog no backlog Buenos Aires April 2010 July 2010 -1 December 2011
January 2007 January 2007 +2 never Buffalo September 2009 October 2009 +1 never
October 2005 October 2005 +2 never Cairo September 2009 February 2010 +3 December 2011
April 2006 May 2006 +1 never Caracas April 2010 May 2010 +1 never
November 2006 January 2007 0 July 2016 Colombo February 2010 April 2010 0 November 2012
November 2007 See Abidjan -1 August 2016 Dakar no backlog see Abidjan
March 2004 February 2004 +1 never Damascus July 2010 January 2010 +9 never
September 2006 no backlog Guatemala November 2009 February 1010 -1 May 2012
no backlog no backlog Havana May 2010 August 2010 -1 February 2012
September 2006 November 2006 0 February 2016 Hong Kong November 2009 January 2010 0 January 2014
March 2004 April 2004 +1 never Islamabad January 2010 May 2010 -1 February 2012
June 2007 May 2007 +1 never Kingston November 2009 December 2009 +1 never
September 2007 September 2007 +2 never Kiev June 2010 June 2010 +2 never
January 2007 April 2007 -2 August 2013 Kuala Lumpur February 2010 March 2010 +1 August 2013
October 2007 October 2007 +2 never Lima May 2010 August 2010 -1 December 2011
March 2007 February 2007 +3 never London December 2009 November 2009 +3 never
January 2005 March 2005 0 October 2017 Manila April 2010 April 2010 +2 never
September 2007 November 2007 0 April 2015 México City January 2010 April 2010 -1 July 2012
October 2007 August 2007 0 July 2015 Moscow December 2009 November 2009 +3 never
April 2005 May 2005 +1 never Nairobi July 2009 May 2010 -6 February 2012
March 2004 April 2004 +1 never New Delhi February 2010 April 2010 0 September 2012
October 2006 November 2006 +1 never Paris January 2010 February 2010 +1 never
February 2007 no backlog Port-au-Prince no backlog no backlog
November 2006 December 2006 +1 never Port of Spain November 2009 August 2009 +5 never
December 2004 January 2005 +1 never Pretoria February 2010 January 2010 +1 never
September 2006 January 2006 +13 never Rabat March 2010 June 2010 +1 February 2012
January 2008 no backlog Rome March 2010 April 2010 +1 never
no backlog no backlog Santiago no backlog no backlog
April 2007 July 2007 +1 never Santo Domingo October 2009 December 2009 0 January 2013
March 2008 May 2008 0 September 2014 São Paulo February 2010 March 2010 +1 never
July 2007 February 2007 +7 never Seoul January 2010 January 2010 +2 never
October 2005 December 2005 0 January 2017 Singapore February 2010 March 2010 +1 never
April 2007 March 2007 +1 never Sydney April 2010 April 2010 +2 never
April 2007 February 2007 +5 never Taipei December 2009 January 2010 +1 never
December 2006 February 2007 0 December 2015 Tel Aviv February 2010 March 2010 +1 never
July 2005 October 2005 -1 June 2014 Tokyo March 2010 June 2010 -1 February 2012
May 2007 May 2007 +2 never Vienna March 2010 June 2010 -1 February 2012
August 2005 August 2005 +2 never Warsaw March 2010 May 2010 0 August 2012
Below are charts from CIC's statistics for "inventory" (as of 31 December 2010) and the 2011 quota assigned to the visa posts. (The 2012 quota remains at 55,000 to 57,000 files.)
Visa Posts warehousing litigants' applications
Visa Post Inventory
2011 Quota 2008-2010 Pre-2008
Accra 700 2,415 15,746
Beijing 2,000 1,231 5,023
Colombo 500 262 1,520
Damascus 830 14,844 16,813
Hong Kong 3,500 853 27,740
Islamabad Included in Ldn 546 20,908
London 17,500 28,415 59,719
Manila 3,000 2,678 51,123
Nairobi 730 1,765 6,124
New Delhi 7,500 13,074 110,338
Pretoria 470 599 3,225
Seoul 900 660 3,590
Singapore 1,000 3,177 15,902
Warsaw 2,200 26 9,994
40,830 70,545 347,765
Visa Posts not involved in the litigation
Visa Post Inventory
2011 Quota 2008-2010 Pre-2008
Bogotá 140 793 2,395
Buffalo 7,500 9,996 10,049
Cairo 640 262 1,520
Caracas 260 354 1,164
Guatemala 140 826 178
Kingston 190 1,192 1,856
Moscow 800 947 1,646
Paris 700 275 2,494
Port of Spain 565 325 2,062
Port au Prince -0- 685 1,017
Rabat 140 140 1,480
Sydney 340 274 2,140
Tel Aviv 200 350 2,963
Vienna 90 174 1,270
11,705 16,593 32,234
These charts reveal the maximum number of dispositions CIC permits to be made in 2011 at these visa posts; i.e., approvals, refusals and withdrawals. With Beijing, for example, when 2011 began, theoretically it could have reduced the 5,023 backlog by as many as 769 applicants by year-end, except that anyone who applied in 2011 would go to the front of the line. Likewise, Hong Kong would have been able to reduce its 27,740 backlog by as many as 2,647 applicants in 2011 assuming no one applied in 2011. Because Singapore has a three-year "inventory" of post-27 February 2008 applications, the 16 year supply of those who applied earlier than that date will never have their visas approved under the current queue-jumping processing policy.
This chart discloses the number of FSW applications on file. Note: CIC only includes files created on or after 27 February 2008 as "working inventory", relegating older files into the "backlog".
Federal Skilled Worker Applications year end 2008 year end 2009 year end 2010 30 June 2011
Working Inventory
Received on or after 27 February 2008 111,520 128,769 173,050 168,282
Backlog
Received before 27 February 2008 512,996 400,005 334,881 313,825
Total FSW Applicants Awaiting a Decision 624,516 528,774 507,931 482,107
This chart reveals that files lodged on or after 27 February 2008 continue to outpace dispositions. Given that the 2012 quota for the FSW class remains at 55,000 to 57,000 and the three-year "inventory" of files which are first to be processed, few applicants who applied before 27 February 2008 will have their files assessed because the "working inventory" increases with each application submitted after 30 June 2011.
The second conclusion is that less than 10% of the "backlog" applicants had their files closed in the first six months of 2011. A closed file is not synonymous with an approved application because "final dispositions" consist of approvals, withdrawals and refusals.
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The Litigation
Litigation has been initiated to oblige CIC to assess the files of the litigants. For each litigant, there are two proceedings. The first seeks an order requiring CIC to assess and finalize their application; and the second seeks an award of damages comparable to the income the applicant (and spouse) would have earned in Canada in their professions(s) had CIC honoured its commitment to process their file in the time-frame it estimated when it enticed the applicant to apply to immigrate to Canada.
The first, called an "application", requires the Court to agree to hear the case — to grant leave — whereas the second, an "action", does not require leave. However, CIC may be expected within a month of initiation of the action to ask the Federal Court to dismiss it. If the Court permits the action to proceed, CIC will be at risk of having to pay out hundreds of millions of dollars if all its victims joined the litigation. It would be wise, therefore, for CIC to offer immediately to settle. If so, it can be expected to offer to assess and finalize the litigants' files in exchange for dropping the demand for damages. If settlement is offered, it would probably not occur until about six months into the process.
If there is no settlement, the application may be expected to heard about nine months after litigation has been initiated. The judge is unlikely to render a decision at the hearing but, rather will "reserve" the decision. How long the judge will take to release the decision is unknown, but one to four months would be the norm.
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Visa Posts Involved
At this point, 295 people, who have files lodges in London, Warsaw, Accra, Nairobi, Pretoria, Damascus, New Delhi, Colombo, Singapore, Manila, Seoul, Beijing and Hong Kong, have joined the litigation. We are especially keen to have those with files lodged in other visa posts join the litigation.
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The Procedure
The litigation is not a class-action but, rather, consists of individual litigants with their own case. In all likelihood, the individual cases will be consolidated and heard together. If so, there would be two classes of litigants; viz. those who applied before 27 February 2008 and those who applied between 27 February 2008 and 26 June 2010. The Court may make the same decision for both classes or fashion a different one for each class.
In an application counsel argue before a judge. There are no witnesses; rather, each side may adduce an affidavit, stating the facts on which counsel will rely. Opposing counsel has the right to question the person who signed the affidavit. If so, it would be done with a court reporter recording the questioning, and the questioning would be limited to the contents of the affidavit. Given that there are unlikely to be any disputed facts, it is unlikely that CIC's lawyer will bear the cost of examining the litigant. (The cost would range between $750 and $1,000 each.)
For the action, witnesses may be called. However, because the facts will really not be in dispute, it is more likely that, if the action is to be decided on the merits, it will be based on the affidavit submitted in the application.
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Effect of the Decision
The Court's ruling will apply only to the people who have joined the lawsuit (the "litigants"). Thus, if we win, CIC will only have to assess the litigants' files and may continue to ignore those of everyone else with a file CIC has tossed into its black hole — unlike in a class-action lawsuit, where everyone in the same class would be treated equally. The objective of the mandamus application will be to have the Court impose, or CIC agree to, a specific time-frame to assess and to finalize the litigants' application. Likewise, if the actions for damages are decided on the merits, the amount awarded will be based upon the litigant's own facts.
If, however, there is a settlement, if CIC agrees to pay any damages, it will likely be the same amount to everyone — and the amount will be significantly less than the requested amount. However, it will come with a promise to assess and finalize the FSW file within a specified time-frame, which would likely mean that the immigrant-visas will be issued roughly twelve months after the litigants have submitted up-dated forms and documents.
After the litigation has ended, CIC could — and should — abandon its queue-jumping processing policy, effectively ending the indefinite warehousing of FSW applications. Nevertheless, CIC will still be obliged to finalize the litigants FSW applications within the specified time-frame. Thus, that change should not negatively affect the litigants.
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