Ottawa cheated 107 Iranians out of a fair shot at their Canadian dream, judge finds

The federal court has ordered the Canadian Immigration Service to reconsider the cases of 107 Iranian immigration applicants who were massively rejected.

The court also ordered the Immigration Department to pay the litigants a total of $50,000 in costs – one of the highest amounts ever awarded in an immigration case.

In what he called “an unusual circumstance of lawsuits,” Judge Henry S. Brown said he had no qualms about discovering that immigration senior management made “a well-considered and calculated decision” that would protect rights — and fairness — for the applicants “reduced”.

The problem arose after the files of the applicants – all Iranians who wanted to come to Canada under the self-employed category of economic immigrants – were moved in March 2018 from an overdue visa post in Ankara, Turkey so that they could be processed in the office instead. in Warsaw, Poland.

There, the applications were all rejected because they could not demonstrate their ability and intention to self-employed in Canada.

The question was whether the “mass” denials made “in haste” – according to the applicants’ claims – were the direct result of an attempt to clear a backlog, ostensibly “at the cost of violation of legal principles”.

The judge was sympathetic to the applicants’ case.

“Those whose applications are submitted before a decision-maker introduces material changes to the procedure will have the right to be notified and given the opportunity to resubmit or otherwise comply with the new procedures,” Brown wrote in a final 76-page decision. . Friday.

“Failing to notify an applicant of the case to be met by a decision-maker constitutes a violation of procedural fairness.”

Rokhsar MousaviNezhad, a designer and maker of Persian carpet, said she and other litigants — who started the lawsuit in 2018 — were happy with the decision.

“We were treated unfairly and the court understood what was happening,” MousaviNezhad said. “It restored our confidence in the Canadian justice system.

“We hope that immigration will now comply with our requests,” the court said.

The Self-Employed Immigration Program aims to attract exemplary athletes, artists and farmers. The Iranian applicants in this program had been processed by the Ankara Visa Bureau, but 479 files in this category were transferred to Warsaw on March 7, 2018 due to backlogs in Turkey.

The court heard that the success rate of self-employment applications by Iranians dropped from about 80 to 85 percent between 2015 and 2017, when processed by Ankara, to less than 50 percent when processed by the Warsaw office.

It identified a number of problematic procedural issues when, in 2016, immigration officials “claimed” to replace an operating manual that had been in place for at least eight years with a new one to guide visa officials through processing self-employed applications.

The older manual referred to the possibility of interviewing applicants and even instructed visa officials that formal business plans should be “discouraged” if they would “incur unnecessary costs and administrative burdens” for the applicants.

Under the old directive, officials were also “explicitly” told that if they have “concerns about suitability or inadmissibility, the applicant should be given a fair chance to correct or contradict those concerns” in accordance with procedural fairness requirements.

“It seems to me that this language has a strong tendency to oblige visa officials to address these concerns through procedural honesty letters, or possibly even through interviews,” wrote Justice Brown.

“The entirety of this procedural justice provision has been eliminated… Its large-scale removal cannot be seen as anything other than a deliberate, significant and material diminution of the legitimate expectations of procedural justice.”

The court was told that officials in Ankara always adhered to the practice of asking for additional documents, accompanied by a detailed checklist of other documents for additional information needed to support a stand-alone application, which Brown said was necessary given the long immigration backlog and delays .

However, he said officials in Warsaw not only ended the practice of sending additional document requests, but also made a “material change” when reviewing an applicant’s business plans and proving the intent and ability of the applicant. person to settle in Canada.

Since Ankara had regularly approved Iranian self-employment applications without too much detail in the business plans, the judge said this also raised legitimate expectations among the applicants about the expected level of detail of the business plans they submitted for review.

“This legitimate expectation was not transferred to the Warsaw visa post, which rejected a large number of Iranian SE applications, based in whole or in part on alleged flaws of business plans submitted in support of aptitude and intent,” Brown noted.

“This resulted in claims being rejected without the applicants knowing about the case they were supposed to meet or having a full and fair opportunity to respond.”

While it is within the purview of immigration officials to replace operational manuals and amendment procedures, the judge said they had not notified the system’s litigants or potential plaintiffs, nor provided the opportunity to resubmit to meet “these significantly different requirements”.

Given the lack of notification, the court ruled that only those Iranian self-employed applicants whose cases were filed within six months (if represented by a legal adviser) or nine months (if self-represented) after the implementation of the new Operational Manual in 2016 and the applications those moved to Warsaw should be given a chance for reconsideration.

Due to the different timelines of the cases being litigated, the judge returned only the eight lead cases for reconsideration under the old rules and procedures, while asking immigration officials to review the rest and determine which ones met the timeline and should be reopened.

Pantea Jafari, attorney for the litigants, said the remaining 99 cases will be investigated and those that meet the timeline under the court order will be automatically reopened and resolved, while the rest will continue to be tried, either through negotiations. or by further court order, if necessary.

She said Brown’s decision was a… important implications for administrative law in the immigration context.

“Essentially, at any time that an instruction to officers or clients of the respondent has been sustained for an extended period of time – in our case eight years – people can claim that it raised a legitimate expectation that would be followed,” said Jafari.

“Where the respondent makes significant changes to forms, processes, that sort of thing, it is now the intention that they be notified, otherwise it would be considered reasonable for people to rely on the old versions within six or nine months. .”

Nicholas Keung is a Toronto-based immigration reporter for the Star. Follow him on Twitter: @nkeung

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