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. Absent a change in immigration 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. On July 1, 2011, it has been further announced that the CIC will continue to accept new applications under federal skilled worker program. Although the annual quota has been halved, the affect is that those who applied before that July 1st have been moved further down the processing queue.
The Canadian immigration visa section at New Delhi states that it does not plan on assessing this year or next any applicant who applied before 27 February 2009 (pre-Bill C-50) applicants. And, it makes no promise to assess those applicants even after 2012.
FSW Applicants have three choices
- (1) Re-apply if your occupation appears on the 2011/12 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.
The 2011/12 Occupation List includes a scant 29 occupations, excluding almost all occupations that qualified prior to 27 February 2008. A limit of 500 applications per occupation has been fixed and the documentation requirements – including filing of IELTS report that is not older then 2 years – are extensive. Thus even those courageous or overoptimistic enough to re-file will have to submit all supporting documentation up front.
Option (2) adds on to further uncertainty to immigration plans and life in the foreseeable future, especially as regards growing children.
Option (3) may offer you a choice of getting out of uncertainty and know if it makes sense to wait any longer for this pending immigration application to be processed.
ABHINAV has decided to pursue legal option for willing clients, who face this uncertainty. ABHINAV has decided to hire services of Mr. Timothy E. Leahy, attorney and general counsel, permitted to practice before federal courts of Canada and United states. Mr. Timothy E. Leahy was a lead counsel in Dragon where, on 21 February 2003, the Federal Court ordered CIC to assess 100 litigants' files by 31 March 2003. He is based in Ontario, Canada. For those not aware of the case, in 2002, CIC (Citizenship and Immigration Canada) had announced retroactive application of laws on applications already filed and in queue in the system. Mr. Leahy’s action meant his clients applications were taken up for review – as per the law that was applicable on the date of application.
In association with Mr. Leahy, ABHINAV plans to initiate an application in Federal Court of Canada – seeking an order compelling CIC to process the applications of those who join the litigation. Two kinds of court cases will be initiated, 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 applications of clients seeking relief, as soon as possible.
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. It should be noted that should any damages be awarded by the court, then 1/3rd of the awarded damages will be shared with assigned attorney.
The main purpose of the court case is to seek an order to process the application. The second objective, seeking damages for lost wages, may not succeed but will be pursued vigorously as well.
It being a court case, the decision can go either way; and yet, unfairness of CIC's imposing a queue-jumping processing process means that the Federal Court of Canada may be expected to give your plea serious consideration because CIC's behaviour runs contrary to fundamental Canadian values. As an applicant, whose file CIC has tossed into a black hole, making it impossible to know when, if ever, you will reach Canada, this action affords you an opportunity to wrest control of your destiny from those who care not a whit about your future.
The Federal Court charges Canadian $50/- per file. Legal charges for mandamus application The legal fee for the mandamus application will consist of a modest amount up front with the balance paid upon confirmation that the client's file will be assessed, as opposed to being warehoused indefinitely. The fee has been substantially reduced from the standard fee for litigation.
Total legal charges will be Canadian $1100/- , payable in 2 parts:
(1) Canadian $500 plus $ 50 to participate as initial retainer
(2) Canadian $550 if CIC agrees to, or is ordered to, assesses your file within a specified period, to be paid within 15 days of such notification.
You may pay the equivalent amount in Indian Rupees Favouring “ABHINAV OUTSOURCINGS PRIVATE LIMITED”. As on July 5th, 2011, the exchange rate is 1 CAD = 46.29. You are requested to round off the figure and pay an amount of INR 23,500/- towards first payment. Minor additional amount will take care of conversion charges that ABHINAV will incur while getting payment transferred.
The procedure for the mandamus case is for the applicant to submit an affidavit and for the lawyers to argue in Court. There will be no witnesses.
For the damage award, there could be witnesses, but it is highly unlikely that the matter will reach that stage; rather, CIC will likely settle either after we win the first case or will settle both even before then.
Within thirty days of the filing of the case seeking damages for lost waged, CIC may be expected to ask the Court to dismiss the action. If the Court refuses to do so – and if enough applicants participate – CIC may 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 finalised within a reasonable time-frame. At this stage, the “reasonable time frame” has not been defined but will be known when the matter is settled. But for sure, a positive court order will take out your file out of a black hole and get it into processing in near future.
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.
Question 1: What do I gain by participating in the proposed court case?
Answer: As things stand, there is no indication of whether your application – if filed prior to 27 February 2008 – will be processed at all or, if so, when it will be processed. Your life and plans are as uncertain as are the educational plans for your children. By filing a court case, you will know the CIC's stand as regards your application in a specified time frame – not likely to exceed a year from court filing and as fast as one month– and, thus, be able plan your future course of action accordingly. It goes without saying that benefits of a positive decision means your application will be processed within a specified period.
Question 2: Does instruction on processing of your application in specified time frame imply definite acceptance and approval of application for permanent resident visa?
Answer: The court order – if successful – only instructs application processing. The final decision on your application will be based on merits of your case. It is ABHINAV’s view that majority of clients
(a) who score 67 points,
(b) have given IELTS report that confirmed the score of 67 points,
(c) are able to provide employment reference letters that confirm their claimed duties and responsibilities and
(d) do not have any criminal record or medical inadmissibility
are likely to have their filed application approved when processing is over. The challenge is getting CIC to begin processing it and that is the objective of this legal action.
Question (3): We have already invested in processing and ABHINAV consulting fee AND waited for many years. This legal cost adds on to our costs towards getting visa!
Answer: True and ABHINAV worked on and provided support on your files ALL these years. ABHINAV has provided support of best of the Canadian authorised representatives within the minima fee paid by you. No doubt, you as an applicant are the bigger loser but clearly ABHINAV has not gained through the process either. AGAIN, for those still interested in Immigration, what choice has been left by CIC?
- The policy of non-processing is being applied worldwide and not specific to India.
- We get many calls from clients who wish to apply under fresh procedures and are in fact willing to pay additional consulting fee for filing it. Many – who were qualified - have already done it and in fact, some already got visas. But, if you are not qualified to re-file, then what choice do you have?
- You will need to balance the legal action costs with benefits that you get – child education, family reunification and, most importantly, the life-long benefit of Canadian permanent residency. It is true that this cost is non-recoverable, irrespective of court decision – at least YOU tried against the injustice. Keep in mind that immigration laws are getting strict worldwide and you need to take maximum advantage of the fact that you are in queue!
- We have been often asked to do SOMETHING and we have decided to DO something for our clients. Also remember that Canadian $500 is payable ONLY AFTER 15 days of CIC is ordered to process your application within a specified time frame. Thus, your actual risk is Canadian $500. Please note that ALL legal action fees is non-refundable.
Question (4): By when we should pay this fee and by when will this case is likely to be filed?
Answer: It is proposed to file the court case by July 31st, 2011. All clients who wish to be part of the action should pay by the 10th of July, 2011.
Question (5): What are the documents that are required to file the court case?
Answer: The information required to prepare the affidavit to be filed as part of court case is:
- Full legal name;
- File number;
- Date visa-post received file (see receipt);
- Date AOR estimated processing would commence or end;
- Intended occupation(s) of applicant and spouse and
- Province indentified on IMM8 as destination.
Question (6): Who at ABHINAV should I contact if I wish to proceed and participate in the legal action?
Answer: Contact and visit the nearest ABHINAV office or simply talk to the client servicing executive that you were in touch with. Here are contacts details for your immediate reference:
- Delhi: 011-4155-2515/16/17/18
- Mumbai: 022-6610-4730 / 6610-4731
- Bangalore: 080-4096-5051 / 4096-5052
- Pune: 020-4126-6662 / 4126-6664
- Hyderabad: 040-4007-8189 / 4002-7916 / 4014-6974
Question (7): I am interested, want to proceed immediately but do not have time to visit ABHINAV office. What should I do?
Answer: Follow simple steps as follows:
Step 1: Deposit the money as per following account details:
- Account Holder Name: Abhinav Outsourcings Pvt. Ltd.
- Account No. 01342320000402
- Bank Name: HDFC Bank Ltd.
- Branch Address: D-23, Defence Colony, New Delhi-110024
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