Toronto Star. September 12, 2008. Nicholas Keung

The Federal Court has cleared the final hurdle for a class-action lawsuit against Citizenship and Immigration Canada for allegedly profiting from the visa application processing fees for 2 million migrants and visitors. In a decision released Wednesday, the court allowed the case to proceed and also include visa applicants who were charged fees for 43 types of visas – from temporary resident visas for students and foreign workers to permanent ones issued to skilled landed immigrants, spouses and families.

The action, initiated by representative plaintiffs Alan Hinton and Irene Popapova of Coquitlam, B.C., two years ago, seeks to recover $700 million the government received from some 100 million visas issued between 1994 and 2005.

“The decision strips the path to the disclosure of Immigration Canada’s books,” Richard Kurland, one of three lawyers representing the claimants, said in an interview yesterday. “We are determined to get to the bottom of this.”

Hinton, 31, and Popapova, 30, met in Moscow in 2001 and got married the next year. Their Canadian-born son, Misha, is 2. Court documents show Hinton paid $75 to sponsor his wife in 2003. Based on calculations from Immigration Canada’s internal documents, the couple alleges the actual cost for processing the application was only $36.69, resulting in a profit of $38.31.

They argue that the department violated Canada’s Financial Administration Act, which prohibits the government from charging service fees in excess of the actual cost of providing a service.

Earlier this year, the immigration department appealed a court decision to grant the motion for class certification, contending that the claimants, who paid only a sponsorship fee, could not challenge other types of visa fees that they did not personally pay. It wanted the case dismissed, but the appeal court sent it back to be refined.

At a new federal court hearing in August, the government disputed cost analyses obtained by the claimants’ lawyers through access to information.

By lumping expenses of other government departments to the initial estimates, it argued Ottawa lost anywhere between $15 million and $200 million yearly processing visa applications.

“It could be argued that it is an abuse of process for the (Immigration) minister to now bring forth what she considers better evidence on an interlocutory matter,” Judge Sean Harrington said in his latest ruling.

Despite the “great variation” in costs in affidavits submitted by two of the ministry’s own staff, Harrington said both the Hintons and Ottawa have a fairly arguable case.

A case management conference will be held to work out a timetable before a full discovery of evidence can proceed.