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Immigration: Justice delayed | Lorne Waldman

By February 7, 2024No Comments
[Originally posted on Law360 Canada (February 5, 2024, 2:30 PM EST]

Justice delayed is justice denied. The phrase has been attributed to William Gladstone but has its origins in the Magna Carta — “to no one will we refuse or delay, right or justice.” The Canadian legal system has recognized that delay can be an abuse of process which brings the administration of justice  . Despite this, our immigration system is rife with delays and huge backlogs that cause serious injustice to many. Nowhere is this more apparent than in the immigration procedure known as Ministerial Relief from inadmissibility to Canada.

Under Canadian immigration law, persons can be found to be inadmissible to Canada if they are members of organizations that either engage in acts of terrorism or are part of an organized crime group. This provision has been applied against persons who have never directly supported or engaged in violence themselves, but based solely on their alleged membership in such organizations. The Federal Court and Federal Court of Appeal have held that the term “member” should be broadly interpreted because of the importance of protecting national security. As a result, persons who have only had a very peripheral involvement in an organization have been found to fall within the ambit of this clause and are, as a result, inadmissible to Canada.

In one of the leading cases decided by the Federal Court of Appeal,
Poshteh v. Canada (MCI), 2005FCA 85, a young man from Iran who had distributed pamphlets a few times a month for a period of two years as a minor was found to be a member of the impugned organization even though he had never joined or attended meetings of the group. In another case, a woman who was forced to cook and attend to members of the Tamil Tigers at their camps for a brief period of time was found to be a member of the group and left in legal limbo for years. There are many other examples of people who have been caught up in this overbroad understanding of the term membership, which has produced findings of inadmissibility for hundreds if not thousands of people who were marginally involved inorganizations and, in many cases, left them years ago.
The Federal Court has justified its broad interpretation of the term membership by noting that persons found inadmissible under this provision could apply for Ministerial Relief from the inadmissibility by establishing that their admission would not be contrary to the national interest.

The difficulty with this proposition is that the Ministerial Relief provisions have, in turn, been applied extremely restrictively. The decision-making process is controlled by the Canadian Border Services Agency’s National Security Division. They are the ones who prepare the brief that is sent to the Minister of Public Safety. Their recommendations are almost always against providing relief because their view of who deserves relief is based upon a very narrow reading of what is required to satisfy the requirements of the legislation.

The ultimate decision is made by the Minister of Public Safety, who is handed the brief prepared by CBSA and must either accept it or reject their recommendation. The briefs are often 20 or 30 pages long and are accompanied by numerous appendices containing hundreds of pages. Given the minister’s many responsibilities and priorities, it would not be surprising if the minister did not have time to review the recommendation and carefully examine all of the appendices and submissions. Unsurprisingly, the minister almost always concurs with the recommendations of the Canadian Border Services Agency and this has resulted in the vast majority of applications being refused. As a result, many deserving applicants are denied relief. In one recent case, Al Yamani v. Minister of Public Safety and Emergency Preparedness, 2021 FC 629, the Federal Court set aside a refusal to grant a Ministerial Relief application, because the minister failed to explain why 27 years after the individual had left the organization, it was still contrary to Canada’s national interest to grant him relief.

But the problems do not end there. The process is so poorly resourced that it has become completely dysfunctional. According to expert evidence filed in one recent judicial review, given the current backlog and the time taken per application, it will take more than 40 years to decide the current caseload. Applications routinely take five years or longer. Indeed, there are cases of people whose applications have been pending for more than 10 years without a decision.

The Federal Court in the case of Tameh v. MCI, 2017 FC 288 held that a person was entitled to seek mandamus, an order from the court compelling the minister to render a decision, because the application had been pending determination for more than 10 years. But most applicants do not have the resources to apply for mandamus so their applications are allowed to languish for years. The result is that there are hundreds of people who live in Canada in limbo (and more abroad), waiting and hoping for relief from an overly broad definition of membership. While they wait, they cannot apply to be reunited with their families, cannot leave Canada and live in fear that they will be deported. The inordinate time required for processing these applications suggests that a constitutional challenge for abuse of process for delay would have a strong chance of success.

Given this conundrum, the time has come for the government of Canada to reconsider its inadmissibility provisions. The government should introduce regulations which define membership in a more restrictive fashion so that only those who truly pose a threat to Canada will be rendered inadmissible. The government must also create a more equitable, fair and timely process for assessing applications for Ministerial Relief and, in the interim, should take action to clear the backlog by providing that persons whose applications have been pending for more than five years should be approved unless CBSA has cogent information that establishes that they currently pose a danger to our security.

Lorne Waldman has been practicing exclusively in the area of immigration and refugee law since1979, the year he opened his own law practice, Waldman & Associates. He is the author and editor of Immigration Law and Practice, a two volume, loose leaf service published by LexisNexis in 1992. He has appeared very frequently at all levels of the courts in Canada, including the Supreme Court of Canada, the Federal Court and the Federal Court of Appeal where he has argued many of the leading cases in immigration and refugee law. He was made a Member of the Order of Canada for his contribution to immigration and refugee law.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not betaken as legal advice.