As written in our last article Federal Skilled Workers “The Backlog“, Jason Kenney, the Minister of Citizenship, Immigration and Multiculturalism has recently announced that around 280,000 Federal Skilled Worker applications will be returned to the applicants from different Visa Offices all over the world. Most of these applicants have been waiting for years to have their files processed and now after a long wait they will get the application fees back and their documents along with an invitation to apply again under the new Ministerial Instructions.
The Minister proposed to return the applications on March 30th, 2012 and even though it has not become official yet as it is just a proposal we have heard from some clients who applied before 2008 that they have already received the letter and their documents and money back. I guess the government has started without the proposal being approved by the Parliament. We are expecting that the proposal will be approved as the current government has a majority but nothing has been announced officially.
This situation has raised anger among the affected applicants and some of them are gathering together to sue the Canadian Government. I mentioned in my last article Federal Skilled Workers “The Backlog” that the only legal remedy for Federal Skilled Worker Applicants is a judicial review after a refusal, however, the applications are not being refused but returned without being processed and without reaching the refusal stage.
With the information provided above there is only one thing left to do: a class action. This legal remedy is recognized in the Canadian legal system and consists in a large group of people collectively bringing a claim to Court.
In 2002-2003, after the new Immigration and Refugee Protection Act came into effect something similar happened with foreign nationals taking action against the government for not processing the files of Federal Skilled Workers and Business Immigrants who applied prior to January 1st, 2002. Their applications were going to be returned as they did not qualify under the new Act but the applicants took their case to the Federal Court of Canada obtaining a positive outcome, which allowed them to have their applications processed. I know of some clients who are already gathering to take a similar step and explore the possibility to have their applications processed this time. From my perspective, I consider fair trying to get their applications back in the queue. Although, it is important to be realistic and acknowledge that the class action may take long before having a result and for some clients it may be better to reconsider participating in this class-action and instead re-applying under the new Ministerial Instructions.
The Canadian government is trying to improve the immigration system and I agree that having a huge backlog is not helping but I also believe that there is an alternative way to deal with the backlog without getting rid of almost 300,000 applications. The immigration system is about Canada not people’s dreams, the objective is the development of the country in order to reach a better economy and this can only be achieved if the right immigrants are selected to come to Canada. For the government, the fact that some people have been waiting for over 8 years is not relevant specially if these applicants do not meet the Canadian market’s needs anymore. I understand the government’s perspective but it would be a good idea to re-evaluate those 280,000 applications and consider the possibility that some of those applicants can still contribute to meet Canada’s current needs. After all, we can tell they really want to come to Canada and work hard since they have been waiting for so many years to have their files processed. If the government does not take an alternative way before making this proposal official, then I am afraid that the affected applicants will be showing up in Court and this will be time consuming and expensive for the system.
If you have been affected by this situation or know someone who has, please share your story. We would like to hear from you.
By: Maria Campos