OK, this is not a case that goes directly against the recent Bill C-38, which, if passed, will allow Citizenship and Immigration Canada (CIC) to wipe out all Federal Skilled Worker (FSW) applications submitted before February 27, 2008. However, according to Toronto immigration Lawyer Jeff Li, the winning of this legal battle may stop CIC from dumping those applications.
In its decision (Liang v. Minister of Citizenship and Immigration) released June 14, 2012, the Federal Court of Canada compels CIC to process Mr. Liang’s application within a reasonable period of time. The applicant in the case, Mr. Dong Liang, is a typical skilled worker seeking Canadian permanent residence. He is an IT project manager, and submitted his application to the Canadian Embassy in Beijing in October 2007. Although Mr. Liang received a positive selection decision from the Embassy in March 2010, his application has since been held in abeyance. With the help of veteran immigration lawyer Timothy Leahy, Mr. Liang, together with some 900 other people, sued Immigration Minister Jason Kenney for not finalizing their applications in a timely fashion.
In February 2008, the Parliament passed a new law allowing the Immigration Minister to issue instructions prioritizing different kinds of applications. Soon Mr. Kenney issued a set of ministerial instructions (MI1), which specified among other things the new eligibility criteria for the FSW program. MI1 was in force between February 27, 2008 and June 25, 2010 (when a new set of instructions (MI2) were issued), and CIC stated that the process time frame for applications under MI1 would be between 6 to 12 months.
However, it now takes around 24 – 52 months for CIC to process applications under MI1. It may take 5-9 years for applications filed before February 2008 to be completed. In this case, the litigants argued that their applications were “warehoused” in a lengthy backlog because of these ministerial instructions. And Justice Rennie of the Federal Court agrees, saying this delay cannot be justified.
Under the decision, CIC will have until Oct. 14 to finalize the application of Dong Liang. However, the Court did not make similar order for the other similar applicants, citing that reasons for delay must be assessed on an individual basis. According to Tim Leahy, a fair application of Justice Rennie’s ruling would require Ottawa to finalize their applications by October 14, if the delay was not caused by the applicants.
The decision is much welcomed by the immigration community, and it does set the stage for the prompt processing of the other applicants. Would this be a way to get around the pre-2008 FSW application wipe-out? It well could be.
However, Jeff Li cautioned us not to be over-optimistic. Above all, Bill C-38 has not yet been past yet, and it is possible for the Government to change the bill and overrule this decision. Further, even though mandamus has been issued, CIC might come up with excuses not to have it completely implemented. And CIC did exactly this around 2004 and 2005, when mandamus was issued to compel CIC to process immigration applications without unreasonable delay. True, Jeff Li said, CIC does not have control of everything, like the medical and security checks. However, CIC should be able to control the time frame for the majority of the applications. The current processing delay is simply unreasonable and unacceptable.
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