Ottawa loses legal battle over immigration backlog

[hmisabpk]

Ottawa loses legal battle over immigration backlog
Ottawa has suffered a major setback in eliminating its immigration backlog after the federal court ruled the government is obliged to process all applications it accepted into the system.

About 900 applicants under the federal skilled workers' program sued Immigration Minister Jason Kenney for violating the pledge to assess and finalize decisions in a timely fashion.

They asked the court to order the immigration department to process their applications within a reasonable time frame.

In a decision released Thursday, Justice Donald Rennie rejected the minister's argument that the delay is justified because he has the authority to make policies.

“The minister can set instructions that permit him to return some applications without processing them at all, and thus obviously there is no further duty in respect of those applications,” the judge wrote in a 24-page decision.

“However, for those that are determined eligible for processing, the duty to do so in a reasonably timely manner remains.”

In February 2008, the law was changed to give Kenney authority to issue ministerial instructions regarding which applications would be eligible for processing and to remove the obligation to process each application received.

As a result, the litigants argued, their applications were “warehoused” in a lengthy backlog from five to nine years.

Despite the new measure, the court said Ottawa still failed to finalize a file within the six and 12 months Kenney promised — the first ministerial applications have been outstanding between 24 and 52 months.

Immigration has until Oct. 14 to finalize the application of the case's lead litigant, an IT project manager in China.

Although the court falls short on making an order for all 900 applicants, Thursday's decision sets the stage for the prompt processing of the other litigants.

“So long as the applicants are not to blame for the delay, a fair application of Justice Rennie's ruling would require Ottawa to finalize their applications by October 14,” said their lawyer, Tim Leahy.

The decision is final because the court refused the minister's request for appeal, added Leahy. The next step is for opposing counsels to determine how to proceed with the remaining cases.

Ref: The Star: http://www.thestar.com/news/canada/politics/article/1211698--ottawa-loses-legal-battle-over-immigration-backlog

hmisabpk

 

[JhonSmith]

Dear hmisabpk.

This is really good news for long waiting applicants.

J. Smith

 

[Amr El-Samra]

So what's next for these applicants ??
I'm one one of them..

 

[Cappuccino]

Reading into this, it seems this has been passed prior to the C-38 bill being finalised.

These applicants got a successful ruling that their applications were not being processed in a timely fashion and in effect the court has ordered CIC to expidite their applications.

It will be interesting to see if applicants are able to get similar rulings if C-38 is finalised, since there would truly be precedence set for the other 300,000 applications facing termination.

Wayne.

 

[jnathan]

Bill C38:
As of 11PM, Thursday dt. Jun-14, 2012, the Omnibus Budget Bill C38 stands 'passed' by the parliament, with certain changes in many of it's sections, however the section on IRPA [Immigr. & Refugee Protection Act] remaining mainly intact.

Part-4, Div-54 of Bill C38 summarily dismisses approx. 300,000 pending FSW applications filed on or before Feb-27, 2008 effectively. Wherein, an estimated $130 million of processing fees will be refunded to the 'lost' applicants, without interest fees and without any legal right of remedy or indemnity.The bill is to get a third-reading on Monday, Jun-18, 2012 then it goes to Senate, where it's likely to be formulated into a 'law'.

Does it cast aspersions on the integrity of the Canadian Immigr. System? --YES. Does it put a dent on the universally accepted Canadian norm for operational fairness? --YES. However, it's the law, voted successfully by a majority of members of the parliament, responding to the changing labour market needs... irrespective of a 'plea' submitted by CBA [Canadian Bar Association] on May-29, 2012, pls refer below.

As such, like it or not, we may just have to gulp it in the larger interests of the country.

NOTE:
This bill [C38] hits only the applications filed till Feb-27, 2008 -- and who has yet to receive a SELDEC-1. Their e-Cas of "in process" doesn't matter. While, if their e-Cas states "DM" after meds -- then obviously those cases r thru.

Qorax
Ps.: http://www.cba.org/cba/submissions/pdf/12-31-04-eng-Division54.pdf

 

[Amr El-Samra]

I'm really freaking out!!.. i applied in Feb 2007, and my application is still "in process".. is it possible that my file gets terminated after waiting for 65 months ?!!!!
what i understand from the article is that the backlog will be processed..
but if the c-38 bill is passed, this means that those who applied before 2008 "including me", are screwed!!
what should i do ??

 

[nom018]

The 900+ plaintiff spearheaded this case and we should be thankful to them.

Simple logic dictates that this ruling should also apply to all qualified backlog applicants, or else they will be flooded with court cases using this case as a precedent.

 

[Cappuccino]

I'm really freaking out!!.. i applied in Feb 2007, and my application is still "in process".. is it possible that my file gets terminated after waiting for 65 months ?!!!!
what i understand from the article is that the backlog will be processed..
but if the c-38 bill is passed, this means that those who applied before 2008 "including me", are screwed!!
what should i do ??

There are around 300,000 pre-Feb-2008 applications. Once bill C38 is passed, only approximately 20,000 of those will be processed and the other 280,000 will be shelved. This largely depends on whether or not the SELDEC flag on your file has been set. Ordering CAIPS/GCMS notes may tell you this?

But with over 93% of the pre-Feb-2008 applications currently destined for termination, regrettably the outlook doesn't good. However, the decision of the judge for these 900+ plaintiffs does pave the way for others to take legal action against CIC.

Petitions and Facebook groups will do no good, however there is nothing to stop you mounting your own personal legal challenge if you are one of the 280,000 applicants who have their applications scrapped.


Even then, there are other ways to get into Canada. FSW2. PNP.

You're only screwed once you admit defeat!

Best of luck,
Wayne.

 

[Amr El-Samra]

I applied in Cairo, Egypt Visa office on Feb 2007, and they didn't contact me about anything ever since..
they only replied to my request for change of address and adding my wife to my file last march..(2012!)
other than that my e-cas indicates "in process"..
I'm really lost and i don't know what to do?! is there anything to be done or checked to know weather I'm in or out ??

 

[Amr El-Samra]

Dear Cappuccino..
I also forgot to mention that mine and my wife's NOC code is 3131 too!
I guess its not as easy applying as a pharmacist as i was before..
can u please elaborate on our options for coming to Canada ??

Many thanks,
Amr

 

[osos]

Hi Amr,

Did you reach anything?
My case is similar to you as I applied from Cairo office back in 2006.