Posted on August 19, 2011
The author, Mr. Timothy Leahy, is General Counsel at Forefront Migration Ltd., a Toronto-based law firm specializing in migration to Canada and the UK. More articles on Canada migration may be found on their website www.forefrontmigration.ca/home.php. For information on his latest initiative titled "Join our Skilled Worker Mandamus Action" contact Mr. Leahy directly through phone +1 416 226 9889, fax +1 416 226 2882, Email info@myForefront.com.
Join our Skilled Worker Mandamus Action
Citizenship and Immigration Canada (CIC) has abandoned its long-applied “first in, first out”
processing to one where those who apply under the current Occupation List are processed first.
After those applications have been assessed, those who applied under the previous Occupation
List will be reviewed. Thus, those who applied as Federal Skilled Workers (FSW) before 26 June
2010 and have not yet had their file assessed should not expect it to be assessed 2011 because the
2011 quota will be filled from applicants who applied after 25 June 2010 and those who have
already been assessed. Absent a change in policy, significantly larger visa post quotas or a precipitous
drop in new FSW applications, skilled worker applicants who applied before 27 February 2008
and have not yet had their files assessed are unlikely ever to have their files assessed. And, come
July 1st, when a new Occupation List will go into effect, applicants who applied before that date
will be moved further down the processing queue.
Canadian immigration visa posts in Europe and Asia have stated that FSW applications received
prior to 26 June 2010 will not be processed in 2011 (unless medical forms have already been
received). In Manila those who applied between November 2004 and 26 June 2010 and who
have not yet received medical forms should not expect to have their files assessed in the
foreseeable future. Indeed, the Canadian Embassy at Warsaw advises that it has no idea when it
will review files lodged between 27 February 2008 and 26 June 2010, let alone earlier ones; and
New Delhi states that it does not plan on assessing pre-Bill C50 files in 2011 or 2012.
FSW Applicants have three choices:
(1) re-apply if your occupation appears on the new 2011 Occupation List;
(2) do nothing and hope your file will be assessed during your lifetime or
(3) ask the Federal Court of Canada to order that your file be processed.
After 1 July 2011, once we have at least fifty clients, we will initiate two types of court cases; viz.,
1. Mandamus: We apply for "leave”, asking the Court to hear the case, and, if it agrees
to do so, we will seek a Court order requiring CIC to process the application.
2. Damages: This action, which does not require permission to be argued, will seek damages
for the wages lost from the date CIC estimated the file would be finalized to the date of
the court order.
The fee has been substantially reducing the standard fee for litigation. There are two
options: either $750 to participate plus $750 if CIC agrees to, or is ordered to, assess
your file within a specified period or $550/$1,000. (The Court filing fees are $52.) Half
the initial payment would be made when we start; the other half when the litigation is
lodged. However, the fee is contingent on having at least fifty litigants.
Within thirty days of the filing of the case seeking damages for lost waged, CIC may be
expect to ask the Court to dismiss the action. If the Court refuses to do so – and if enough
applicants participate – I would expect CIC to offer to settle. Generally, settlement means
withdrawal of the litigation without costs in exchange for processing of the file. Thus, the
lost income may never be recovered but, if not, it would mean that your file would be
dusted, assigned to an officer, reviewed and finalized within a reasonable time-frame.
The procedure for the mandamus case is for the applicant to submit an affidavit and for
the lawyers to argue in Court. There would be no witnesses. For the damage award, there
could be witnesses, but I do not expect that matter ever to reach that stage; rather, CIC
will likely settle either after we win the first case or will settle both even before then.
The information required to prepare the affidavit is:
a. full legal name;
b. file number;
d. date visa-post received file (see receipt);
e. date AoR estimated processing would commence or end;
f. intended occupation(s) of applicant and spouse (see Schedule 1 for each) and
g. province identified on IMM8 as destination.
If there is no settlement, it would ordinarily take nine months to a year to obtain a decision
from the Federal Court. However, if enough people participate, the litigation is likely to
be case-managed and expedited as it was when I initiated litigation in 2002 to prevent
Immigration from applying only the new selection criteria in cases lodged before those
criteria had been proposed. In that case, the Court ordered CIC to interview within six
weeks the 100 clients who had applied before the new criteria had been posited. (Seven
months later, the Minister settled the litigation which followed mine and, shortly thereafter
he exchanged the immigration portfolio for the position of the junior minister for sports.)
Such a quick time-frame is not likely to be imposed in this litigation.
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