Immigration changes won’t solve problem (Guest commentary)

Proposed changes permit an abuse of executive power
By Jacqueline Bart
|Canadian HR Reporter|Last Updated: 05/29/2008

Despite Ottawa’s protestations to the contrary, budget Bill C-50’s apparently innocuous immigration provisions, will not succeed in tackling the backlog of skilled immigrants waiting to get into the country.

Instead, the proposed changes permit an abuse of executive power that is contrary to the rule of law and acceptable principles of fundamental justice and procedural fairness.

If passed, the 10 small paragraphs couched in the budget bill, and ushered into law with no debate on substance, will allow the government to put its decisions beyond challenge.

The proposed changes allow the immigration minister to issue instructions that would affect the manner in which decisions are made by immigration officers. And yet, the proposed law is silent on the specific content of the instructions.

The fact the immigration changes have not been disclosed, and are changeable at the will of the minister, is particularly disturbing. Immigration officers may be required to determine applications in compliance with these unknown ministerial instructions, and not with transparent, known and consistent legal requirements.

The immigration provisions are ambiguous and, perhaps, purposefully so. It enables maximum governmental flexibility on which types of applications are included in the amendments and what types of judicial remedies are no longer allowed. The lack of clarity means poor drafting and bad law.

The legislative proposals are designed to enable the immigration minister to maximize control and hold arbitrary executive power without the governance and transparency of law. The proposed law specifically targets overseas humanitarian and compassionate applications, skilled worker applications and any other type of application or “request” through the use of ministerial instructions. The executive delegation of authority in the proposed legislation is unusually all-encompassing. It’s certainly more far-reaching than the modest goals the government suggests it will tackle as a result of these legislative changes.

Once the legislative authority in Bill C-50 becomes law, the minister’s instructions will be law unless ruled contrary to the Charter of Rights and Freedoms or the principles of natural and fundamental justice.

Even more egregious is the proposed provision, that “an application or request is retained, returned or otherwise disposed of does not constitute a decision not to issue a visa or other document, or grant status or exemption, in relation to which the application or request is made.”

It would enable the government to destroy, discard, hold, delay, decide or refuse an application — and then to refuse to consider it a “decision.” Such wording is perverse. It strikes at the very core of fundamental justice and procedural fairness. If a disposition is not a decision, judicial review and other administrative and judicial remedies will no longer apply.

The Harper government has been particularly vocal about the benefits of these amendments.

“Simply put, our government’s immigration reforms will get skilled workers into the country earlier, help families get reunited sooner, provide the Canadian economy with the human capital it needs to maximize its enormous potential, and continue to enrich our great country with the cultural influences of newcomers from the four corners of the earth,” said Prime Minister Stephen Harper.

One wonders why the legislative amendments could not be better drafted to include such laudable solutions and remedies and why these noble goals are not the subject of parliamentary debate, better drafting and greater clarity. Certainly, the pride the government has expressed in these amendments is not reflective of the manner in which these amendments were furtively introduced into budget legislation.

There are already measures that empower the government to address immediate business and labour market needs. Unfortunately, the government has not used its current powers for this purpose. Examples of the government’s failure to meet business needs in Canada include:

•In September 2007, the government introduced a Simplified Application Process that substantially facilitated the filing of skilled worker applications (and promising processing fee refunds). It resulted in an enormous increase in the current processing backlog of almost one million applications, thus substantially impacting the resources each visa office could expend on work permit applications.

•Processing times for Labour Market Opinion applications are nine months instead of three weeks, and that’s for urgent work permit requests in Canada’s most labour challenged provinces.

•“Arranged employment” applications that have been approved still face protracted delay at visa offices around the world, notwithstanding the fact employers are desperately clamoring for these workers.

The government has many other options available for expediting applications that would meet Canada’s labour market needs, such as inland permanent residence categories for work permit holders, expansion of provincial nominee programs and facilitated work permit applications procedures at visa offices for labour market approvals.

Jacqueline Bart is a Toronto-based Law Society of Upper Canada certified immigration specialist and founder of Bart and Associates. She is the author of Canada/U.S. Relocation Manual: Immigration, Customs, Employment and Taxation, published by Carswell. She can be reached at (416) 601-1346 or visit www.canadianrelocationlaw.com.

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