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Backlog case can go to appeal
OTTAWA—Tens of thousands of would-be immigrants who don't meet strict new criteria could get a fresh chance to enter Canada, an immigration lawyer said after a judge's ruling yesterday cleared the way for the issue to go to an appeal court.
The new Federal Court decision is the latest chapter in a controversy over the immigration department's decision to make the tougher entrance requirements retroactive — effectively changing the rules for a backlog of people who'd already been waiting months or years for their applications to be processed.
Federal Court Justice Michael Kelen had already ruled last month that 102 prospective immigrants who went to court hould be processed under the old rules because the department had misled and ignored Parliament about the backlog.
The second part of his judgment, released late yesterday, clears the path for an appeal. "It opens the door for us to take retroactivity to the appeal court so that all of the other backlogged immigration applicants can hopefully avoid the retroactive laws," Toronto lawyer David Rosenblatt said.
The case has put Immigration Minister Denis Coderre in the hot seat.
The Canadian Alliance argued he should be fired after the judge found Coderre's officials had drastically underestimated the number of outstanding applications at a parliamentary committee hearing. Officials suggested there were 30,000 backlogged applications, when in fact there are between 80,000 and 120,000, the judge found.
As well, the department "did not inform Parliament of this error when it became evident," he wrote in the ruling. Based on the department's figures, a parliamentary committee had recommended a three-month extension to allow applicants already in the pipeline to be processed under the old rules. Coderre acted on that, but it's now clear three months was not nearly enough time to deal with the backlog.
Coderre compounded his political problems by calling Kelen's decision a "draft decision." His comment prompted the judge to take the highly unusual step of issuing a statement describing his ruling as final.
Yesterday, Coderre said calling the judge's decision a draft was a matter
of "legal jargon." He continued to deny his staff hadn't been honest about
Coderre and judge square off over ruling
Lawyers are buzzing as jurist steps up to say cabinet minister's opinion is wrong By CAMPBELL CLARK -(Globe & Mail) Tuesday, Mar. 4, 2003
OTTAWA -- A Federal Court of Canada judge has engaged in an unusual tussle with a federal cabinet minister, openly refuting Immigration Minister Denis Coderre's assertion that a recent ruling criticizing his department was only a draft.
Mr. Justice Michael Kelen took the surprising step yesterday of issuing a statement to insist his ruling is final, not a "draft decision" as Mr. Coderre claims.
The statement -- which appears to be a direct rebuke of the minister though it does not name him -- stunned many in the legal community and has become the talk of immigration lawyers across the country.
It is unprecedented for a judge to publicly join the debate about a decision after it has been delivered -- and even rarer to respond directly to the comments of a politician.
Judge Kelen's statement came after a week in which Mr. Coderre not only repeatedly said the original decision was merely a draft, but twice insulted opposition MPs who disagreed in the House of Commons.
The Feb. 21 decision by Judge Kelen stated that senior officials misled Parliament by underestimating the number of immigrant applicants who would be hit by retroactive changes to immigration rules.
Yesterday, Judge Kelen issued a one-paragraph "oral direction" sent out to lawyers in the case by the court's registry officer. It denied Mr. Coderre's assertions.
"The order and reasons on the above noted file are final as of February 21, 2003 (and are not considered draft) as to the question of mandamus. The only outstanding matters to be decided are the issues of legal costs and whether there is a question of general importance for certification," Judge Kelen's statement said.
Mr. Coderre's office had no comment.
Canadian judges normally do not issue clarifications after their rulings,
instead letting decisions speak for themselves. "It really is unusual
for a judge to provide that kind of clarification on the status of their
decision," said Gordon Maynard,
David Dyzenhaus, a University of Toronto expert on judicial independence, said Judge Kelen might have felt it necessary to assert his ruling is law after a minister of the Crown suggested it was not issued by a high enough court to have importance.
"I think, in a way, the minister's position could be seen by a judge as tending to undermine confidence in the administration of public justice," Mr. Dyzenhaus said. "I'm sure that's what would have prompted the judge to do what he did."
Judge Kelen was appointed to the bench by Prime Minister Jean Chrétien two years ago. At one time, he was a partner at the same Ottawa firm where Finance Minister John Manley practised law. Immigration officials told a parliamentary committee last year that most cases would be processed by the end of 2002. But Judge Kelen heard evidence that 80,000 to 120,000 cases would still be outstanding by March 31 and those applicants will be subject to stricter rules.
Judge Kelen found the Immigration Department made no effort to follow
Parliament's wish to ensure that most of those people had their applications
processed before the deadline. He ordered the department to process the
102 applicants who had sued. When Canadian Alliance immigration critic
Diane Ablonczy questioned Mr. Coderre about the ruling in the House of
Commons on Feb. 24, the
In fact, the judge's decision was final, although like many court decisions, it can be subject to appeal to a higher court. Lawyers for the Immigration Department have since asked Judge Kelen to "certify questions" -- in effect, to grant them permission to appeal on certain specific legal grounds.
But on Feb. 25, when Ms. Ablonczy challenged Mr. Coderre's assertion, Mr. Coderre insisted "the court has not made a final decision" and attacked Ms. Ablonczy. "I don't know how she got her degree, but she should do her homework once and for all," he said. The next day, he snapped that Alliance MP Vic Toews was "unable to do homework, or comprehend the Immigration Act."
Mr. Toews, the former attorney-general of Manitoba and long-time lawyer, said he was stunned to hear Mr. Coderre -- who is not a lawyer -- attack his legal knowledge, and that of Ms. Ablonczy, also a lawyer.
"When I get a guy like that, who has made such a blatant error, then attack me personally and Diane -- it's just unacceptable," Mr. Toews said yesterday.
Thousands denied immigration bid, lawyers say Government urged to be fair to applicants
By KIRK MAKIN
JUSTICE REPORTER; With a report from Campbell Clark -Thursday, Feb. 27, 2003 ( Globe & Mail)
Federal officials who knowingly misled Parliament about the size of an immigration waiting list deprived almost 100,000 people of a chance to enter the country, immigration lawyers say.
But the government cannot justify leaving the applicants in limbo, they say, in light of a court ruling that says 102 of them must now be assessed using less-stringent criteria that were in force until last year.
In his ruling, Federal Court of Canada Judge Michael Kelen found that Citizenship and Immigration Canada officials gave false figures about the number of outstanding immigration applications.
As a result, he said, a Commons immigration committee was misled into
believing only 30,000 applicants were in danger of missing a deadline
for qualifying under the original rules, a backlog the department said
it could clear up in three extra
The committee was extremely concerned that the policy not change in mid-stream and cheat any of the applicants who were trapped in the backlog. But in reality, Judge Kelen said, immigration officials knew that the backlog was several times higher, and that the vast majority of applications had no hope of being processed before the deadline. He blamed a senior immigration bureaucrat for supplying "significantly incorrect numbers" to the committee.
Almost 100,000 applications ultimately missed the deadline.
Judge Kelen also found that the department pocketed a $125-million profit on its visa operation even as it ignored its promise to devote more money and staff to clearing the backlog. "The evidence before this Court is that the [department] made no such effort, and treated the outstanding applications as if there was no looming deadline," Judge Kelen said.
He ruled that it was wrong for the department to change the ground rules
after people had paid substantial fees and, through
"These people had spent thousands of dollars on fees, on lawyers and
on courier service to speed their applications along,"
The vast majority had no hope of qualifying under the new, more demanding immigration criteria that came into effect after the deadline, he said. The point system used by officials to rate prospective skilled immigrants now, he added, puts such an emphasis on language fluency, higher education and marriage that only a tiny proportion of applicants can meet the criteria.
He said the department clearly raised the criteria so it could both eliminate its backlog and increase the power of visa officials to subjectively decide which applicants to approve. "All of a sudden, they had a legal justification for refusing tens of thousands of cases -- and still keep their money," Mr. Mamann said. "It is revolting. This is what the court found especially distasteful.
"They knew exactly how many applications were in the pipeline," he added. "They knew it up to that date, up to that minute. There could be no mistake." Citizenship and Immigration Minister Denis Coderre, who originally dismissed the Federal Court judgment as a "draft ruling," insisted yesterday his department has acted reasonably.
However, some Liberal backbenchers, including immigration committee chairman Joe Fontana, said they intend to push Mr. Coderre to treat the applicants more fairly. "Where's the fair play?" asked Scarborough-Agincourt MP Jim Karygiannis.
Judge Kelen noted that the applicants "have followed the Canadian rules and Canadian law to seek admission to Canada. They are not 'queue-jumpers.' Moreover, these applicants are generally skilled workers who believe that they would qualify for landing in Canada under the former regulations."
Mr. Mamann said abuses of this sort discourage people from pursuing regular,
legal channels to enter Canada. "It's like someone being in line for three
years, and when he finally gets to the front counter, he's told: 'The
rules have changed, and by the way, we're keeping your money,' " Mr. Mamann
Feb. 22, 2003. The Star
Court rejects change in entry rules New law unfair to immigrants 170,000 could be affected
NICOLAAS VAN RIJN - STAFF REPORTER
Immigrants applying to come to Canada should be assessed under the rules in effect at the time of their application, the Federal Court of Canada says in a decision that could affect hundreds of thousands of people who want to begin new lives here.
Yesterday's decision by Mr. Justice Michael Kelen orders Citizenship and Immigration Canada to process 102 applications under rules that existed before June 28, 2002, when new regulations took effect.
But Kelen's decision could have an impact on more than 170,000 immigration applications now in the pipeline, said Toronto lawyer David Rosenblatt. With each application representing an average 2.5 potential new immigrants, the ruling could potentially affect 425,000 people, he said.
"Basically, they changed the rules in mid-process, and then applied those new rules to people who had already applied and paid their fees," said Rosenblatt, one of a group of immigration lawyers who brought the action. "Although the judge applied the decision to only these 102 cases, people who filed before Dec. 31, 2001, we think it has a much broader implication and application," Rosenblatt said. The lawyers, he said, will return to court asking to have the decision extended to other applicants.
The change in rules, the lawyers argue, stranded many applicants who had already paid thousands of dollars in application, translation, legal and other fees. And it deviated from past practice by the immigration department, which has grandfathered applications when rule changes are introduced — so applications already filed would fall under rules then in effect.
"The new regulations discriminate against unmarried applicants and people from certain countries," Rosenblatt said. "People from certain countries — China and India — will be hardest hit." Although the new regulations were implemented last June 28, the immigration department and a parliamentary committee agreed on a transition phase, ending March 31, 2003, to process existing applications under the old rules.
But instead of a backlog of some 30,000 cases, as Parliament had been
told, the department was looking at more than 170,000 cases already in
the pipeline, Rosenblatt said. Calls to the immigration department were
Coderre goes a step beyond incompetence
The minister must accept responsibility for
his mistakes, apologize and deal
Thursday, February 27, 2003
Out of sight, out of mind seems to be the philosophy Immigration Minister Denis Coderre is following as he breathlessly ignores prospective immigrants, parliamentary committees, Canadian law and Canadian courts alike.
First, Mr. Coderre dragged his heels on processing the applications of more than 100,000 immigrants, primarily Chinese, who had applied before the introduction of tough new legislation that took effect in June 2002.
The new Immigration Act imposes stronger education and language proficiency standards on those seeking to come to Canada. It now appears that many of those who applied under the old rules will see their applications processed under the new act.
The spectre of applying laws retroactively seems to give Mr. Coderre little cause for concern. It may give him pause soon, though, since Vancouver immigration lawyer Richard Kurland plans to launch an action seeking damages or reconsideration of all applications.
Fortunately, some applicants already took their cases to cour t and, in a scathing decision delivered last Friday, Federal Court Justice Michael Kelen ordered the government to process 102 applications under the old rules.
In his judgment, Justice Kelen harshly criticized the minister for ignoring the recommendations of a parliamentary committee and for misleading Parliament. Specifically, Justice Kelen said that Citizenship and Immigration Canada failed to follow the recommendation that it expedite the processing of applications from foreign missions.
Further, CIC failed to invest into the process a $125-million surplus from visa applicants, and it closed the mission in Hong Kong for three months to train staff, instead of requiring them to make efforts to deal with the backlog.
While Mr. Coderre did follow the committee's recommendation to extend the time limit for processing old applications to March 31, 2003, Justice Kelen noted that that recommendation was based on CIC information that only 30,000 applications would be backlogged by January 2003.
The backlog actually contains 80,000 to 100,000 applications, and Justice Kelen therefore said that Mr. Coderre misled Parliament by never informing it of the proper count. On Monday, Mr. Coderre dismissed the accusations, saying he always gave Parliament correct information.
And he found an easy way to deal with the court's accusations that he ignored the parliamentary committee: He ignored the court ruling. Mr. Coderre refused to comment directly on the judgment, referring to it as a "draft," and his spokesman said the court would hear further submissions before issuing a final decision. That came as news to a Federal Court of Canada representative who said, "It is not a draft ruling or draft decision. It is a decision of the court. It is a final decision."
Critics are furious with Mr. Coderre, and Canadian Alliance immigration critic Diane Ablonczy has called for his resignation.
Even Liberals are taking him to task. Joe Fontana, chairman of the parliamentary committee, confirmed that the committee appears to have been given erroneous information, and called the retroactive law "repulsive." He also said he will ask the administration "some tough questions."
The outrage is understandable. At the very least, Mr. Coderre's handling of this matter represents one more example of the federal government's incompetence in managing its affairs. But Mr. Coderre's actions have taken things one step beyond incompetence.
His utter failure to admit to even inadvertent mistakes, and his readiness to apply retroactive laws to immigrant applications, cast a pall over the fairness of the entire immigration process. If Mr. Coderre is to rehabilitate his portfolio, he must accept responsibility for his mistakes and apologize to Canadians, the court, Parliament and prospective immigrants.
Then, to make good on those apologies, he must deal fairly and expeditiously
with all applications that were lawfully filed under the old rules.
Immigration misled Parliament: court
Alliance calls for minister's resignation after
ineptitude affects more than
OTTAWA -- Citizenship and Immigration Canada misled and ignored Parliament last year, according to a Federal Court of Canada ruling issued Friday that could affect more than 100,000 prospective immigrants.
The federal ministry was found to have dragged its heels on processing a backlog of immigration applicants desperate to get to Canada before strict new standards were imposed. Justice Michael Kelen's decision directly affects 102 people who will now have a fresh chance to enter Canada.
But the ruling should force the federal government to open the door to more than 100,000 others who were disadvantaged by CIC's ineptitude, critics said Friday.
"This is a complete betrayal of trust in people whose applications were accepted and who expected to be dealt with by Canada in good faith," said Canadian Alliance immigration critic Diane Ablonczy, who called for Immigration Minister Denis Coderre's resignation.
Vancouver immigration lawyer Richard Kurland said he will launch a lawsuit to either force the government to reconsider all the applicants or pay them a total of at least $100 million in damages.
Coderre announced last year that the government would extend the deadline for the processing of applicants under the old law from Dec. 31, 2002, to March 31, 2003.
The extension followed the recommendation of a parliamentary committee,
which said the department didn't have enough time to process all the applicants
who had entered the system before tough new standards on education and
language proficiency were imposed in legislation announced in December
But the committee based its recommendation for a three-month extension on the testimony of a senior bureaucrat, CIC assistant deputy minister Joan Atkinson, on March 12, 2002.
Atkinson told MPs that the department anticipated a backlog of 30,000 applicants by Jan. 1, 2003, and she indicated to MPs that the department could find ways to accelerate their processing during that extension period, according to Kelen.
"Based on the evidence before this court, which was subject to cross-examination, it is clear that [the department] provided the committee with significantly incorrect numbers," he wrote.
"Rather than the 30,000 such applications expected to be outstanding as of Dec. 31, 2002, the evidence established that there will be 80,000 to 120,000 such applications expected to be outstanding as of March 31, 2003." Kelen further wrote that the department "did not inform Parliament of this error when it became evident."
He also wrote that the Immigration Department "ignored" all four recommendations from the committee calling for the department to make efforts to expedite application processing in foreign missions.
The department "ignored the legislative purpose and intent of extending the time frame for assessing sch applications, failed to adopt the reasonable advice and recommendations from the parliamentary committee ... and ignored the objective of [the new immigration act] which requires 'prompt processing' of visa applications."
The department also failed to invest more resources despite a $125 million surplus paid by visa applicants during the 2001-02 fiscal year, the judge noted. The department also shut down the Hong Kong visa office for three months last year to train staff "rather than require the staff use their best efforts" to deal with the backlog.
CIC spokeswoman Susan Scarlett would comment only indirectly on the decision. "We are pleased that the court upheld the validity of our legislation. We are reviewing the decision and its implications for the CIC," she said.
Ablonczy said MPs and Canadians were misled on immigration just as they were on the spiralling costs of the firearms registry.
"Parliament has once again been misled, I think deliberately," she said.
"Either he (Coderre) knew, or if he didn't know, why the hell is he the
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