Ottawa loses legal battle over immigration backlog
by Nicholas Keung
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.â€
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
