The Federal Court has ordered Canada’s immigration department to reconsider the cases of 107 Iranian immigration applicants who were turned down en masse.
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 litigation,” Justice Henry S. Brown said he had no difficulty finding immigration senior management made “a deliberate and calculated decision” that “reduced” the rights — and fairness — for the applicants.
The issue arose after the files of the applicants — all Iranians who were seeking to come to Canada under the self-employed category of economic immigrants — were moved from a backlogged visa post in Ankara, Turkey, in March 2018 so they could instead be processed in the office in Warsaw, Poland.
At issue was whether the “mass” refusals made in “haste” — according to the applicants’ claim — were the direct result of an effort to clear a backlog, allegedly “at the cost of violation of legal principles.”
The judge was sympathetic to the applicants’ cause.
“Those whose applications are filed before a decision-maker institutes material changes in procedure are entitled to have notice of and be given an opportunity to refile or otherwise so as to comply with the new procedures,” Brown wrote in a 76-page decision last Friday.
“Failure by a decision-maker to provide an applicant with notice of the case to meet constitutes a breach of procedural fairness.”
Rokhsar MousaviNezhad, a Persian carpet designer and maker, said she and other litigants — who initiated the suit in 2018 — were happy with the decision.
“We were treated unfairly and the court understood what happened,” said MousaviNezhad. “It restored our faith in the Canadian judicial system.
“We hope immigration is now going to act on our applications” according to the court instructions, she said.
The self-employed immigration program is meant to lure exemplary athletes, artists and farmers. The Iranian applicants in this program had been processed by the Ankara visa office, 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-employed applications by Iranians plummeted from around 80 to 85 per cent between 2015 and 2017, when they were processed by Ankara, to less than 50 per cent when processed by the Warsaw office.
It identified a number of problematic procedural issues when immigration officials in 2016 “purported” to replace an operational manual that had been in place for at least eight years with a new one to guide visa officers in processing applications under the self-employed class.
The older manual referred to the possibility of interviews with applicants and actually instructed visa officers that formal business plans should be “discouraged” where they “would entail unnecessary expense and administrative burden” to the applicants.
Under the old guideline, officers were also “expressly” advised that if they had “concerns about eligibility or inadmissibility, the applicant must be given a fair opportunity to correct or contradict those concerns” in compliance with the procedural fairness requirements.
“It seems to me this language strongly tends to require visa officers to deal with these concerns through procedural fairness letters, or possibly even through interviews,” wrote Justice Brown.
“The entirety of this procedural fairness-focussed provision was eliminated … Its wholesale removal cannot be seen as other than a deliberate, significant and material reduction in the legitimate expectations of procedural fairness.”
The court was told officials in Ankara always adhered to the practice of asking for supplementary documents, accompanied by a detailed checklist of other documents for additional information required to support a self-employed application, which Brown said was necessary, given lengthy immigration backlog and delays.
However, he said, officials in Warsaw not only ended the practice of sending supplementary document requests, but made “material change” in assessing an applicant’s business plans and evidence of the person’s intent and ability to establish in Canada.
Given that Ankara had regularly approved Iranian self-employed applications without going into a great deal of specifics in the business plans, the judge said that also gave rise to justified expectations among applicants about the level of detail expected of the business plans they submitted for assessment.
“This legitimate expectation was not carried over to the Warsaw visa post, which rejected a great number of Iranian SE applications based in whole or part on perceived inadequacies of business plans filed in support of ability and intent,” Brown pointed out.
“This resulted in claims being dismissed without the applicants knowing the case they had to meet or having a full and fair chance to respond.”
Although it’s within immigration officials’ authority to replace operational manuals and change procedures, the judge said they did not notify the litigants in the system or prospective claimants, nor did they provide an opportunity to refile 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 (when represented by legal counsel) or nine months (if self-represented) after the new operational manual was introduced in 2016 and the applications were moved to Warsaw should be given a chance for reconsideration.
Due to the different timelines of the litigated cases, the judge only sent the eight lead cases back for reconsideration under the old rules and procedures, while asking immigration officials to review the rest and determine which ones meet the timeline and should be reopened.
Pantea Jafari, lawyer for the litigants, said the remaining 99 cases will be examined and those that meet the timeline under the court order will be automatically reopened and resolved, while the rest would be further adjudicated either by negotiation or by a further court order, if necessary.
She said Brown’s decision has a significant implication in the administrative law in the immigration context.
“Essentially, any time where an instruction set to officers or clients from the respondent has been persistent for a prolonged period of time — in our case, eight years — people can argue that created a legitimate expectation that would be followed,” said Jafari.
“Where the respondent makes significant changes to forms, processes, things like that, it is now under the purview of requiring some sort of notice of that or it will be deemed reasonable for people to have relied on the old versions within six or nine months.”
JOIN THE CONVERSATION