IMMIGRATION: Suing for delay is risky business

IMMIGRATION: Suing for delay is risky business

Anyone thinking of suing the immigration department for taking too long to process their immigration application had better think twice on account of a recent Federal Court ruling.

Nawal Haj Khalil and her children came to Canada in March 1994 and made refugee claims which were approved in December of that year. In January 1995 she submitted her application for permanent residence for herself and her children. Her husband was included in her application but he had to wait abroad while the application was being finalized. Although the applications were provisionally approved quickly, their finalization was delayed pending security screens for Khalil and her husband due to their affiliations with the P.L.O.

By November, 2003 she and her children had been separated from her husband for 8 years and she had enough.

She and her children sued the government for negligence, delay, and for breach of their constitutional rights. They claimed damages for alleged psychological distress, depression, economic loss, loss of guidance, and loss of care and companionship from her husband and the children’s father. They also sought punitive damages.

Such proceedings are quite rare.

Most immigration litigation involves an attack on a refusal of an application. However, in this case the problem was that the government wouldn’t make a decision at all. On occasion, applicants will go to court seeking an order of “mandamus” which would compel the government to finalize their pending application.

Here, the plaintiffs didn’t do so and instead sought compensation for the emotional, psychological, and economic pain arising from the delay.

Many frustrated immigration applicants have expressed a desire to sue the government for delay. Most are discouraged from doing so by their immigration counsel since our immigration laws do not set a time frame in which an application must be completed.

Not surprisingly, Madame Justice Layden-Stevenson of the Federal Court dismissed this suit last month notwithstanding her finding that the “application should have been finalized by the end of July, 2002”.
The judge ruled that “…the delay was inordinate and unreasonable. In a word, it was inexcusable. I have no difficulty in concluding that it would offend the community’s sense of decency and fairness.”

Nonetheless, in the end, the judge confirmed that the government has no obligation to finalize such cases within any specific time frame and, accordingly, awarded the plaintiffs nothing.

Having now waited 12 years and counting, Khalil may also end up paying the government’s costs in defending the lawsuit.

Although this case involves security issues, the court’s reasoning applies to all types of cases involving immigration applicants who may be waiting unreasonable amounts of time for their cases to be finalized, i.e. Canadian employers awaiting a foreign nanny, Canadians awaiting their spouses, Canadian children awaiting their parent, Canadian companies waiting for skilled workers from abroad, foreign entrepreneurs looking to bring their capital here, etc.

While the courts’ decision is probably right in law, the lack of reasonable processing time limits has clearly allowed our immigration department to act, in some cases, “unreasonably”, “inexcusably”, and with impunity.

This cannot be in the interests of Canada and its citizens.

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Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Law Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000 or at reporter@migrationlaw.com