Law Times

Law Times • November 9, 2009 NEWS PAGE 5 Lack of 'due diligence' in immigration: Fraser BY TIM NAUMETZ For Law Times OTTAWA – Litigation over immigra- tion and refugee cases will likely con- tinue to increase despite changes rec- ommended by federal Auditor General Sheila Fraser, lawyers who specialize in the area say. The backlog of cases now before the federal Immigration and Refugee Board has grown to 60,000 since Prime Minis- ter Stephen Harper's government came to power in 2006, says veteran Toronto immigration lawyer Gary Segal. As well, new immigration rules the government has introduced are unlikely to result in a quick reduction of an in- ventory of more than 500,000 visa entry applications that has accumulated over the past decade, the lawyers say. Segal pointed to the massive backlog at the immigration board, which consid- ers applications for refugee status within Canada as well as appeals of rejections by employees at Canadian embassies and consulates around the world. The backlog stems from the refusal of the Harper government to reappoint board members named by former Lib- eral governments, Segal says. "Both the refugee division and the ap- peal division are backlogged horrendously, and that's a result of the government not renewing contracts of people who were appointed by previous administrations." Segal adds that the board had been operating with only 30 to 35 per cent of its full complement until the Conser- vatives began filling vacancies over the past two years. Segal and another Toronto immigra- tion lawyer, Matthew Jeffery, both say a critical weakness in the immigrant entry process — incorrect decisions by visa officers abroad — wasn't addressed in Fraser's report last week. "From the litigation point of view, when you're dealing with thousands and thousands of applications being over how provinces establish their priority occupational needs under the Provincial Nominee program, which Segal says is leading to abuse. "You've got all these bottom feed- ers all over the world saying, 'OK, they need heavy equipment operators in Alberta,' let's say. "All of a sudden, you've got all these bottom feeders showing up with people with fake certificates saying they are heavy equipment operators," he says. In response to Fraser's criticism, Im- migration Minister Jason Kenney said the From the litigation point of view, when you're dealing with thousands and thousands of applications being processed at visa offices overseas, every time a visa officer renders a decision, it's open to a person to appeal that to the Federal Court. processed at visa offices overseas, every time a visa officer renders a decision, it's open to a person to appeal that to the Federal Court," says Jeffery. In a report that was particularly criti- cal of the government's Temporary For- eign Worker program, Fraser found that recent changes to the types of people permanently admitted to Canada were not based on "any well-defined strategy" to meet the needs of the country's la- bour markets. Fraser singled out, among other things, no evidence of "due diligence" government is working to improve the provincial program, The Globe and Mail reported. Both Segal and Jeffery, meanwhile, crit- icize the decisions of visa officers abroad on immigration applications for spousal sponsorship as a large source of disputed cases as well as litigation. The spousal sponsorship regime is part of the overall family sponsorship section of the immigration stream. It allows new Canadian citizens to sponsor their spouses as immigrants, giving them a means to avoid the backlog in other streams. ANNOUNCEMENT But, say the lawyers, visa officer decisions are often based on inaccurate information. Jeffery, for instance, says Canada's consulate in Hong Kong routinely re- jects roughly half of the spousal sponsor- ship applications it gets. "If you are applying to sponsor your spouse from China and your applica- tion is processed in the Hong Kong consulate, you've got a 50-50 chance, basically," says Jeffery. "You're asking the government to let them in because they are your husband or wife, and half the time they say no because they don't believe the marriage is real. It's not to say that it doesn't hap- pen — it does — but to say that 50 per cent of marriages are fake?" Segal offers an example of the kind of illogical decisions both lawyers say occur. He says a Canadian citizen married to a Hindu woman abroad had a spou- sal application rejected by a visa officer at Canada's New Delhi consulate who believed the marriage wasn't valid. A video of the ceremony showed the bride hadn't walked around her new husband seven times, a requirement in a Hindu ceremony. "It turns out she was a widow and un- der Hindu rules, you only have to walk around the husband if it's a first mar- riage," he says. "On a second or subsequent marriage, or if you're a widow, it's not required." LT LawyersAid_LT_Nov9_09.indd 1 www.lawtimesnews.com 11/4/09 12:23:58 PM

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