Canadian government unfairly changed standards for immigration cases, judge rules

A lawyer who represented 108 applicants said there are hundreds of others in a similar situation and she expects many may now ask for a review of their rejection

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OTTAWA – A federal judge has ruled more than 100 potential immigrants from Iran had their cases unfairly rejected and has ordered a second look at their files in a move that could set a precedent for hundreds more cases.

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The government has a small immigration category for self-employed artists and athletes. The program is meant to offer a path to citizenship for people with world-class talents. But in an internal memo revealed during the court process, bureaucrats admitted the information available about the program was confusing and there was no clear standard.

The case before the court involved just over 100 applicants from Iran who applied to come to Canada and were rejected. Cases from Iran had previously been processed through the government’s office in Ankara, Turkey, but the government shifted them to Warsaw, Poland, to deal with a backlog and immigration consultants said the number of rejections grew considerably.

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In his decision issued last month, Justice Henry Brown said it was clear switching offices led to an entirely new standard.

“Warsaw visa officers departed markedly from Ankara’s practice and began to rely upon a number of new and detailed grounds on which self-employed applications might be refused,” he wrote.

Even successful applicants can take up to eight years from when their application is submitted to when it is approved. Prior to the cases being moved to Warsaw, applicants were often asked to provide updated information, but that stopped.

Brown said that was an unfair change

“It is obvious that for many if not most applicants, much might have changed in their cultural or athletic careers between the time they filed their self-employed applications and the time their applications were eventually reviewed by visa officers,” he said. “National and international awards might have been received; movies may have premiered; successful sets might have been designed; successful screen makeup work may have been featured; television works may have been created or broadcast; successful contracts might have been signed.”

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Many of the applicants were rejected because their business plans lacked sufficient detail, but Brown said in his ruling that had not previously been a standard and it was unfair to impose it without notice.

“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 ordered the government to take a second look at the 108 cases using the same standards as the Ankara office had been using.

Immigration lawyer Pantea Jafari represented the 108 applicants she said she believes the decision is a complete rebuke of the government’s approach.

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“It signals that it was significantly unfair in my opinion, bordering on bad faith,” she said. “What we tried to prove with this case is that there was a systemic problem with the assessments out of the Warsaw office and that’s exactly what was proven.”

Jafari said there are hundreds of other applicants in a similar situation and she expects many of them may now ask for a review of their rejection.

“Every one that is similarly situated to our clients has a chance to prove that the decision making process was unfair, and as a result, have their applications reopened as well.”

Jafari said she is working with the government now on having her clients reassessed and she expects that work to begin soon.

Julie Lafortune, a spokesperson for Immigration, Refugees and Citizenship Canada (IRCC) said they intend to abide by the judge’s decision.

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“IRCC will implement the judge’s decision with regard to these cases and process them accordingly. IRCC will continue to process self-employed applicants in accordance with all applicable laws, jurisprudence, and internal policies and procedures,” she said in an email. “The court has provided timelines in their decision which IRCC intends to respect.”

Lafortune said the government takes its responsibility seriously to examine all applicants equally.

“Canada is committed to a fair and non-discriminatory application of immigration procedures. IRCC takes this responsibility seriously, and to uphold this commitment, officers are trained to assess all applications equally against the same criteria.” she said. “The decision is specific to the individual cases which were before the judge.”

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