Did you pay too much for your Canadian visa?
Wed, September 17 2008
The suit was initiated by representative plaintiffs Alan Hinton and Irene Popapova of Coquitlam, B.C. in 2003 and has been languishing as immigration lawyers contested its legality.
But in a decision released this week, Federal Court Judge Sean Harrington has ruled that the case may proceed to discovery, an evidentiary process in which CIC will have to open the books on fees it allegedly overcharged for some 100 million visa applications filed and paid for between 1994 and 2005.
“This is the very first successful contested class-action suit in the Federal Court in Canadian history,”
Richard Kurland, one of three lawyers representing the claimants, told the Asian Pacific Post.
“And because Asia during the period was and is Canada’s top source region for immigrants, this litigation will likely impact on the Asian community more than any other.”
While the case has by no means been decided, the Federal Court has cleared the final hurdle for the case to proceed.
If ultimately successful, the suit could result in refunds for visa applicants who were charged excessive fees over an 11-year period for 43 types of visas, from temporary resident visas for foreign workers and international students to permanent resident visas for landed immigrants, spouses and families.
Representative litigants Hinton and Popapova met in Moscow in 2001 and married the following year. Court documents show Hinton paid $75 to sponsor his wife in 2003. Based on figures from Immigration Canada’s internal documents, the couple alleges the actual cost for processing the application was only $36.69, resulting in a profit of $38.31 for CIC.
At the crux of the case is Canada’s Financial Administration Act, which prohibits the government from turning a profit on services. Visa fees, by law, should not exceed the actual cost of providing the service.
While $38.31 may seem inconsequential, at stake is the recovery of $700 million the government received from some three million migrants and visitors.
“The legal basis is section 19(2) of the Financial Administration Act which provides that a profit cannot be made on a user fee,” wrote Judge Harrington, in his 18-page decision.
“The factual basis is the suspicion derived from the annual reports filed by Citizenship and Immigration Canada with Parliament, and other documents obtained through Access to Information, that a profit was in fact made visa by visa, year after year.”
In B.C. — where 30 per cent of the population hails from Asia, including roughly 407,250 Chinese-, 263,000 South Asian- and 88,250 Filipino-origin residents — the visa fee case could impact nearly one in three households.
“If we win the case then all immigrants including those from Asia would be entitled to a refund for any excess fee charges that exceed the costs,” wrote Lorne Waldman, another lawyer representing the plaintiffs in the case, in an e-mail to the Asian Pacific Post.
“This could amount to a great deal of money.”
Across Canada, says Kurland, one in 17 Canadians would be eligible for a visa fee refund if the case succeeds.
“This is about elicit profit,” said Kurland, also a noted immigration policy analyst.
“The Financial Administration Act says you can’t profit on a service, simple as that. But there’s really no one to enforce the law. How do you protect new Canadians and all the people who paid for their visas?
“It’s one out of every 17 people in Canada,” he added. “It’s really big!”
While visa fees were raised to current levels to curtail frivolous applications, and while CIC says the fees need to be set as they are to cover intra-departmental overheads, Judge Harrington ruled that there was enough of a “variation” in the cost analyses and estimates by both parties that each side has an arguable case.
Indeed, according to court evidence presented by two of CIC’s own staff, the immigration department was at various times charging $100 above cost for a multiple entry visitor visa and $55 above cost for a single entry visa as part of a cost recovery program called Maximizing Benefits of International Migration.
This, argues Kurland and Waldman, contravenes the Financial Administration Act.
“This is about accountability,” said Waldman. “If the government is making a profit this is illegal then the government must be held to account.”
Asked what motivated Hinton and his wife to initiate the complex, class-action case, said Kurland: “Representative plaintiffs will do it because it is the right thing to do. You can’t let governments get away with this.”
But not everyone is doing back flips over Judge Harrington’s decision.
“It’s popped up on the radar alright,” fumed Dan Murray, co-founder and spokesman for Immigration Watch Canada, an organization advocating a 20 per cent reduction of Canada’s current immigration levels and major reform to Canada’s immigration policies.
“The whole thing is just ridiculous,” said Murray. “This is litigation gone wild.”
Murray questions the plaintiffs’ cost analysis for processing a visa application, pointing to time-consuming background checks and other behind-the-scenes functions of CIC.
“If this thing were to succeed you’d have this ridiculous situation of CIC looking at every little move they made and calculating every little cost they incurred,” he said.
The immigration policy critic contends this is a case of immigration lawyers and the immigration industry “sabotaging the whole citizenship and immigration process to suit their purposes,” adding the visa fee case detracts from the real issue, which is a much-needed “review and overhaul” of Canada’s immigration process.
“If you’re going to drag anybody through the courts to get $35, we get back to the word ridiculous,” he told the Asian Pacific Post. “Immigration lawyers are taking advantage of the thing.”
Lawyer Kurland stressed that allegations Ottawa overcharged for immigration applications have yet to be proven in court.
“The discovery process is still before the courts,” he said. “That process is expected to be difficult and lengthy. (But) the court has said in no uncertain terms that we have to get to the bottom of this.”
Asked if this case could impact other areas where government provides services for a fee, such as passports and even drivers’ licences, Waldman agreed there may be implications.
“The same argument could be used for passports,” he said. “Other agencies, however, might have clear costing mechanisms and may not be making a profit. We are alleging that Immigration is making a profit, but this has not yet been proven in court.”
By Mata Press Service
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