ideas re immigration Canada-- is this a human rights complaint?

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Tue, 2009-01-13 02:56
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Sean in Ottawa
ideas re immigration Canada-- is this a human rights complaint?

As many know it takes a long time for family reunification through immigration for those seeking to sponsor parents. It is fair ball for a country to decide how many and the rate of immigration. Canada under the Conservatives wants the immigrants with the money and does not see that their parents should be part of the deal. I figure that a born Canadian gets health care, education and all the other trimmings of citizenship from age zero paid by Canada and gets Canadian government support of their parents as well. I am not sure why Canada thinks it is too onerous to allow immigrants who come here, picked for their money and education (so we get the best deal hoping to put them to work if not immediately, a lot faster than the 18 years it took me to get my first job), the privilege of bringing in their parents who will not get a pension and cannot rely on social services. So I have odd feelings about the resentment many Canadians have toward those people who choose to come to Canada when they decide they would like to have their elderly parents with them mostly at their own expense. I also have a hard time imagining what developing countries think of  countries that advertise and even recruit the best and brightest and insist that their parents are too much trouble for rich Canada to deal with.

But my concern is something different that is not as well publicized. Canadian immigration is a two step process when it comes to sponsoring your parents. The first step is equal served based on the order of application, the second based on the country of origin.

The first step involves sending some $3,000 plus or minus to the government and an application to see if the family qualifies to sponsor.These applications are treated first come first served from the Mississauga office. Every applicant is treated equally and the process takes over two years although this is lengthening. As of today they are treating the files received on September 7, 2006. Obviously I think that is a long time but at least everyone is treated the same based on public policy decided by an elected government about how many people to let in.

The second stage is a bit different and the subject of my question. Once the sponsors are approved the file is sent to the Canadian consulate/embassy in the country they would be coming from. In our case China. Depending on the country this next step, is reported to take between 6 months and 12 years. China is one of the longest waits. The government does not publish exact times so people waiting have to find out through a number of means what the wait is.

In most foreign countries we have one embassy office through which all these files go. So if you come from central America there are several offices one for each small country but if you are coming from China there is just one. You would think that the resources would go to the countries with greater demand especially since we can predict these based on the population of the country, historical immigration to Canada which will decide the number who might have parents there and the number of applicants. Canada cannot say that it is blindsided by the fact that China is a large country with a high number of potential immigrants to Canada. We have had high Chinese immigration in past years many arriving here because we advertised for the benefits they bring, technical expertise and money.

So I am surprised that the planning for the management of these applications is chronically off such that there is a difference of some 24 times the wait. Effectively, this slams the door since the idea is you pay, apply and then wait 2-3 years for the first stage and then face another up to 12 year wait. If you start when your parents are 60 then assuming they are still alive you might meet them at the airport when they are 75, provided they can still pass the physical. Your neighbour's parents coming from another country could apply 5 years later and have their parents here a decade earlier. While the differences have always been there they were never this significant until very recently.

So I am assuming that this is about bad planning, that Canada cannot match its resources to its applicants because I do not want to believe that this is about racism or an assumption that sponsors are unequal based on their parents' origins. But the point remains: do we not have the obligation to treat all newcomers equally and allocate resources at least as much as possible to do so? How about those Canadian citizens who are applying? Why are we expecting to be waiting up to 15 years for my partner's parents because they come from China when others come in only 6 months past the first stage is finished from the Middle East or Central America for example? The explanation we heard from immigration employees is that both other regions have many more offices for a smaller population than China because they are many separate countries. Is Canada that stupid? Are we incapable of saying we need more people to work in an office serving a country of a billion than one of 2 million? 

So to my question: I am wondering if we should make a human rights case demanding that the government of Canada restrict the flow of immigrants as it chooses through the first step serving applicants equally but require the embassies and consulates turn their end of the files around in a roughly equal time like 6 months unless there is a complication in the file. If that means they must hire extra staff in some places, so be it. Why is our $3,000 (head tax?) worth less than the ($3,000) paid for someone from another country? If there are more applicants then there is more money coming in and therefore they should be able to hire more staff. 

I realize I am too close to this. Do you think there is a human right to equal treatment for applicants? Not about the overall delays (like it or lump it that is national public policy) but I am talking about the massive difference in the way files are treated. Should I accept the government's system that we all pay the same and we are all Canadians doing the sponsoring but some will face 24 times the wait longer for some countries than others -- just because we can't be bothered to allocate resources according to demand?Realistically, as I say this is beyond a wait-- this is now a refusal since 15 years for seniors is clearly a question of the file outliving the applicant in too many cases.

Sorry this is long but I wanted to provide more explanation in order to get more informed opinions and I also would like to share what we are going through. If you think it is wrong to have such a difference-- what do you think we should do?

 

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Tue, 2009-01-13 06:36
triciamarie

Could there be an issue of agism too? I remember reading somewhere that North Americans -- even first generation, like me -- are statistically, the least likely to assume responsibility for aging parents. Whatever that says about our values, it's a political barrier for advocates for the elderly.

But re your proposed test case, not knowing the first thing about immigration law, the question that occurs to me is does the IRB have jurisdiction and is it willing to interpret international law? If so, what does the law say? Otherwise, if the Board's jurisdiction is more limited, it would be necessary to determine whether the Canadian Human Rights Code, Charter and other Canadian human rights laws apply to non-citizens, specifically, applicants for immigration whose processing fee has been accepted.

Now, where is Jeff House when you need him.

You may want to check in with Avvy Go, a crackerjack lawyer who is no stranger to constitutional cases, or one of her colleagues at Metro Toronto Chinese & Southeast Asian Legal Clinic. This clinic would be the logical choice to argue such a case and they would certainly be aware of the existing case law and any proposed court challenges.

You might also find some other good sources of information on the list of speakers for this event:

http://cashra2008.ca/home_en.html

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Tue, 2009-01-13 09:01
Maysie Maysie's picture

Sean, on a purely technical note, if someone isn't a Canadian citizen, I don't think they can file a human rights complaint against the Canadian government (in this case, the Immigration department). I'd love to be wrong on this.

Second, from how I read them, I don't think there is a "right to emigrate" under the UN Declaration of Human Rights. I think that people throw the term "human rights" around far too easily. There are 30 articles describing "Universal human rights". From what I can tell it doesn't include immigration for the circumstances you describe. Of course I think that what's going on with you, your spouse and her parents is dreadful, please don't misinterpret me! http://www.un.org/Overview/rights.html

Lastly, as you know, Canada has a, shall we say, challenging, history with monitoring and restricting Chinese immigration. Even after the head tax issue of the last century, there is the push-pull of the more-well-off versus they-are-taking-over-and-why-can't-they-speak-English bullshit. Some of this seems to be directly about China since, as you say, in a country so large, with such a large volume of immigration to Canada, assigning more than one office seems to make sense. The red-tapers are deliberately making this impossible for your partner to bring her parents here in their aging years, and that is deplorable.

And yes, call the clinic triciamarie mentioned. 

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Tue, 2009-01-13 11:24
Sean in Ottawa

I thought of this issue-- it is true that potential new Canadians may not be subject to Charter rights. However, Ying and I paid for the sponsorship. We are Canadians. The application is as much about us as it is about her parents. Are we equal to those from other countries?

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Tue, 2009-01-13 13:53
Sean in Ottawa

Interestingly I did some internet research and found a couple cases that seem to establish that potential immigrants do have Charter rights. Still it seems pointless to argue their rights when the co applicants who are paying for the files are Canadian citizens because I don't think that anyone can suggest that as Canadian citizens we are not covered by the Charter's equity provisions in dealing with the government.

To suggest that our part of the application is the Mississauga part and the other is the parents part seems like a very narrow view since both affects us and they are essential parts of the same process.

Still there is a political part of this as well-- why would Canada want to treat people different based on country of origin when it comes to emigrating to Canada? This is a practice we say we stopped decades ago.

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Tue, 2009-01-13 23:42
verbatim

Sean:
(I should explain that I'm articling at an immigration law firm, and have been working in the field for a couple of years now.)

The ostensible reason for the differential processing times generally for parental sponsorships is that there is a higher priority placed on reuniting the immediate families -- which in CIC's formulation is the spouse and children under 22 years of age. The priority of processing is done inversely related to age - so children first, and spouses second. One's parents, and even one's adult children, are not considered as important -- for different reasons.

Parents have often passed their years of greatest economic benefit to Canada, and may soon become something of a burden economically (assuming, as you've pointed out, that they haven't already begun to experience the health complications of old age). Adult children are seen as having to justify their immigration on their own economic merits, as we certainly don't want people bringing their dead-weight adult relatives along. Everyone should be a happy taxpayer or soon-to-be-taxpayer!
So, in short, the economic benefit analysis governs Canadian immigration. Of course this is tied to racism, but in a global sort of way, since applicants from countries that are still struggling to get out from under the weight of the old colonial era will have a disproportionately difficult time qualifying (unless they have a well-established immigrant community in Canada with whom they can draw assistance).

You ask about "is Canada that stupid" with regard to the need to have more people processing in China. My answer is "yes". Although it's not really stupidity as much as it is simply an unwillingness on the part of government to requisition the resources (in the form of taxes). Obviously we could spend $50 million a year on processing Chinese immigration applications if we wanted to - the will just isn't there. Also, immigration demand is as much governed by the exigencies of the other country's internal situation and population. The government doesn't want to spend money on something they don't consider to be a permanent consideration. Basically, CIC has been way behind the curve for as long back as perhaps the 70's. Or so I'm told.

By the way, I'm curious about the dollar amounts you've quoted for processing fees. The fees for two adults under a family sponsorship should be CAD$1,100.00. Even with the eventual "landing" fees of $900.00 for the two, this only amounts to $2,000.00. Are you also quoting lawyer's fees when you write $3,000.00?

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Wed, 2009-01-14 00:39
Sean in Ottawa

Hi Verbatim--

I am glad to see you are going into the field but it seems you completely missed the point I raised. Not sure how as I was trying to be clear. My purpose was not to address the issue of priority between sub-classes -- spouses, children and parents, the issue your reply concentrated on. Looking at parents only if your parents are in one country your waiting time can be up to 24 times longer than if they are in another (6 months as opposed to 12 years). I accept that the government of Canada has the right to decide how many parents get to come in in a year overall. I also accept that spouses and children come first. My problem is that different applicants applying at the same time paying the same money using the same forms to bring their parents are not treated equally.

 I believe that family reunification is sourced in Canadians applying and paying for the process. The potential immigrants in this class are only eligible and derive the right to come here based on the Canadian applicants and their relationship to them. Therefore it is those applicants who are here who have the right to equitable treatment. This means that if we want to restrict the number of parents coming to, for example 12,000 this year, these should be the first 12,000 who applied and qualified. Instead CIC maintains unpublished quotas for each country separately. This means, effectively, that if China's quota is 500 and the first 12,000 included 2,000 from China then we take the first 500 of the Chinese applicants and then move on to others from other countries who have not been waiting as long and the back up from China grows longer. After a while the backup becomes so great the delay becomes effective refusal as it is now when the still growing backlog is about 15 years for the entire process compared to less than 3 from another country.

This means that because my partner's parents are Chinese we can't have a family reunification but if they were from Honduras we would soon all be together. My point is I think the Charter may require that Canadian families seeking reunification should be treated equally in the order recieved without secret arbitrary and indeed unrealistic queues for seperate countries of origin when it comes to rationing those scarce approvals. This point has nothing to do with priorities between other classes or types within the family class- it is simple as saying why is my family reunification treated differently than someone else's in the same process?

As for the money-- I am remembering the amount we paid which was for the complete process it could have been a little less but it sure was substantial- we paid the right of landing fee as well because CIC advertises this will shorten the process. There were other costs than what was paid to CIC as well but these were not very significant.

As for the issue of requisitioning these expenses through taxes, that is hardly the point. All these services are done on a for-profit basis. The government does not subsidize these services at all -- it does not spend over $2,000 to look at these files-- the delay might imply much work is done but this is not the case.

The same is true of visitor's visas. The amount paid is far greater than the cost and the government makes money off of these. When they do not hire the resources to treat the file they are diverting monies received for other business. This is like having a law firm and receiving money from one client and spending it on another such that the paying client does not get the service. Of course because we are a country and not a law firm this is perfectly legal even if it is unethical. The more busy missions with the ridiculously longer wait times also happen to be the more profitable due to economies of scale.The unwillingness you speak of is the unwillingness to treat Canadian families seeking reunification on an equal, fair and up-front footing.

Did you know that the government does not even feel compelled to acknowledge the receipt of the applications for over a year after they are received?

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Thu, 2009-01-15 23:47
verbatim

I'm quite aware of the unwillingness of the government to do all sorts of things - I deal with that issue on a regular basis.  I'm sorry if I didn't place more emphasis on the question of differential processing times by country -- I guess I've internalized that reality by now, and it doesn't really seem surprising to me anymore.  Some embassies are incredibly slow, and others relatively speedy, and it's not always clear why (although there is a fairly clear correlation with how "desirable" immigrants are from the countries serviced by the slower embassies).

The fees themselves seem to me to be constructed as an economic barrier, ostensibly set in order to establish how "serious" applicants are, but really just in place to limit applications to people with significant assets: i.e.  $550, the cost of a PR application for one person, is in the range of one year's income for many sub-saharan African countries.  I have heard that there's an investigation underway concerning the "cost-recovery" claims concerning the application fees, and I'll be very interested in seeing if that yields any fruit. 

I've never heard about the unpublished quotas before, and if you could point me to a source for that I'd be most grateful.

The government's stated goal of "family reunification"doesn't really bear up under close scrutiny.  The immigration system in Canada is very much in the service of the economy and business interests at present.  I can understand why this frustrates my own clients, and so I understand why you are fruistrated.  I'm frustrtrated too.

There is established law around the issue of the right of government to administer programs according to its own priorities.  There are also legal arguments you could try to get an application processed more quickly on an individual basis.  The Human Rights challenge would be a very large challenge indeed. 

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