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Ask Tito Mike by Michael Scott  

Federal Court rules

57 months processing not reasonable

by Michael Scott

There is no standard processing time for immigration applications. The department employs best practices and has admitted they are reducing backlogs in some streams. However, even the best of intentions and promises to improve things do not touch all submissions and there are some that seem to fall between the cracks and are delayed excessively. The immigration serving community was not shocked to hear that there are submissions that take years to decide, but rather that a Federal Court justice has ruled that the delay in one case is so egregious (wrong) that something must be done.

One of the basic principles of natural justice/procedural fairness is that the processing of submissions must be done without undue delay. A delay that cannot be justified is a denial of procedural fairness. I have not read the transcript of the court case in question but followed the stories that appeared in the press, such as the Toronto Star.

The appellant had tried unsuccessfully to obtain information from immigration officials about his application for permanent residence that was submitted almost five years ago. In February 2020 he requested that the Federal Court do something about the situation to speed up the processing. He first received permission, or leave, to submit the appeal to the Federal Court, which acknowledged the merits of his request and the questions about the fairness of the processing. Last month, in a rare ruling, the Federal Court agreed that the 57-month wait was “unreasonable” and ordered Immigration, Refugees and Citizenship Canada (IRCC) to give a decision in 30 days and to pay the appellant’s family $1,500 in costs.

“Even in light of the COVID-19 pandemic, which has slowed IRCC processing times, I find the delay in question is prima facie longer than the nature of the process required,” wrote Justice Shirzad S. Ahmed, referring to the normal processing time of just 21 months.”

The ruling, which directs IRCC to decide within a time frame, is “an exceptional remedy” and has resulted in much discussion amongst the immigration serving community and applicants who have also experienced unreasonable delays. However, the solution is not to flood the Federal Court first with requests to be heard (leave) and subsequent appeals, which can only be submitted by lawyers. The immigration lawyer who represented the appellant said that his office was inundated by persons whose applications appear to be frozen. The departmental excuse to the Federal Court was the impact of COVID, but this fell on almost deaf ears of the Justice.

The details of the case reveal the complications because the subject first submitted a refugee claim in September 2016 and then applied for permanent residence a month later in October 2016. Since that time, they have been waiting for a decision on their PR application. They completed their medicals and made numerous requests regarding the status and delays of their application, but departmental officials gave them only the standard response that the application was in process.

The applicant also enlisted the help of his Member of Parliament who made 34 requests to IRCC for an update between May 2017 and April 2021, but officials responded by saying it was under review. There was apparently some question about the security clearances of the appellant, but this was only disclosed at the appeal hearing. In his ruling, Justice Amad said pointedly that the delay was neither reasonable nor justified, whether it was with IRCC or with the National Security Screening Division, a branch of the Canada Border Services Agency (CBSA). The Federal justice said: “It matters not whether the delays lie within the Minister’s office, or with CSIS (Canadian Security Intelligence Service). The Minister has a responsibility to act with reasonable diligence.”

The lawyer for the appellant warned the department that he has already been approached by several other applicants who feel that they have been subjected to the same unreasonable adjudication. My hope is not for more appeals to the Federal Court, but rather that the department takes seriously the criticism of the Federal Court Justice and respond within the 30 days he gave them. IRCC, like any applicant, is not above the law and they are responsible for their actions and their words. To just repeat ad infinitum the phrase “the case is in process,” wears thin after a while and after 57 weeks is inadequate at best. The applicants should be informed about long delays and the reasons behind them. IRCC has a responsibility to be procedurally fair, in both the information they provide applicants and in their response to the Justice.

Michael Scott is a Regulated Canadian Immigration Consultant (RCIC, R525678) who has 30 years of experience with Immigration Canada and the Manitoba Provincial Nominee Program. He currently works as a licensed consultant with Immigration Connexion International Ltd. Contact him at 204-691-1166 or 204-227-0292. E-mail: mscott.ici@gmail.com.

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