Immigrants Appeal To Supreme Court Could Produce Explosive Results For Citizenship and Immigration Canada


An application made by an Edmonton immigrant couple to The Supreme Court of Canada for leave to appeal their suit against Citizenship and Immigration Canada could have explosive consequences for Canada's Department of Citizenship and Immigration and its future policies. The couple allege that CIC deceived them by claiming that Canada desperately needed professionally skilled immigrants and that the skills the couple were practicing in the U.K. were readily transferable to Canada. They allege they have been exploited, have suffered severe financial losses, and that their lives have been seriously damaged.

If leave is granted and their suit is successful, the bill to be paid for alleged fraudulent advertising of job opportunities by CIC to the couple and thousands of other people in a similar situation would be extremely large. That bill could significantly alter Canada's mass immigration policy. That policy started in 1990 and has since brought several million people here.

At the very least, it could cause CIC to substantially reduce the number of immigrants it allows to enter in its Economic Category, one of its four immigration categories. The couple entered Canada as skilled immigrants, the largest of several groups in the Economic Category. The skilled immigrants themselves (the ones who have to satisfy Canada's point system requirements) account for only about 20% of Canada's annual intake. In order to make the total of Skilled Workers appear large, Citizenship and Immigration adds spouses and children to its list of Skilled Workers. When these additions are included, the Skilled Worker total is over 50% of Canada's current annual intake of around 250,000 immigrants.

The couple's allegations differ from the typical story told to Canadians about skilled immigrants. That story usually features Canada's immigration ministers repeatedly blaming provincial certification agencies for the fact that skillled immigrants are not able to find work. However, the couple's claims clearly say that the majority of the blame should be placed on the shoulders of Citizenship and Immigration Canada whose policies completely ignore economic realities in Canada, particularly the real number of jobs here.

The immigrant couple, Prem and Nesa Premakumaran, live in Edmonton. They came to Canada in 1998 after having lived in England for over 20 years. Both were employed in England and owned their own home on the outskirts of London. After being told they met skilled immigrant criteria, CIC told them they had to satisfy three pre-conditions in order to receive immigrant visas: provide an official evaluation of their house, produce a bank statement showing that they had $15,000 in hand, and show CIC three years of tax returns to prove that they had been working.

They also were told to cut ties to England since they were about to move to Canada. This condition is particularly damning evidence against Canada's Department of Citizenship and Immigration because it implies that Canada was requiring them to sever their “relationship” with the U.K. in order to enter a new “relationship” with CIS and Canada. The “relationship” issue is a key factor in this case. The couple was told by both the Federal Court of Canada and The Federal Court of Appeal that a special “relationship” did not exist between them and Citizenship and Immigration Canada.

In order to comply with the directive to sever their ties with the U.K, they sold their house. They received 110,000 pounds for it, but had to pay off a mortgage and a few other debts. They eventually had to use most of the money realized from the house sale to survive in Canada. After receiving immigrant visas, both resigned from their jobs. Mr. Premakumaran was employed as the Head of Accounting and Finance by a private institute and Mrs. Premakumaran was working as an administrative assistant in the U.K.'s Ministry of Health and Social Security, a position she had held for 10 years. Both had extensive training in their fields.

But their fortunes began to go downhill soon after they arrived in Canada. They discovered that what immigration officers had told them in England was not true. Either jobs such as the ones they were looking for did not exist or employers refused to accept their qualifications. To prove that the statements made to them by immigration officals were untrue, they have provided a set of documents which they have submitted to the Supreme Court.

One of the documents is a General List of Occupations which had been prepared by Human Resources and Development Canada. The problem with the list is that it had been put together in 1993, and was clearly out of date when it was shown to them by Citizenship and Immigration in 1998. But they were not told this by the immigration officer to whom they spoke. That officer presented the list as if it represented the job situation in the year when they applied. The list said that Canada needed accountants, but the immigration officer did not tell them that the jobs were for people with Canadian CGA, CMA or CA qualifications that could be obtained only in Canada. Not being aware of this, Mr. Premakumaran, who was the main applicant, believed that he would be able to get a job as an accountant. Mrs. Premakumaran was led to believe that she too could find employment similar to that which she was doing at the time.

One crucial point in their case is that Mr. and Mrs. Premakumaran did not sign a document saying that they would be willing to work at employment other than that in which they were engaged in the U.K. The couple say adamantly that if they had been given such a document, they would have become suspicious and would definitely not have signed it. Also, if they had been told they might have to work at other low-paying jobs and that they might face a multitude of problems here, they would have stayed in England. (Citizenship and Immigration now requires skilled immigrants to sign such a document. The document is officially referred to as Form IMM 1455-Declaration–Immigrants Requiring Registration Or Licencing In Canada In Order To Practice Their Profession Or Occupation)

The couple are suing for $1 Million each for such things as loss of their jobs/earning power in England, as well as for mental agony and financial loss in the long process of looking for employment here. This part of their suit totals $2 Million. In addition, they are asking for $125,000 in damages for expenses incurred in such matters as the immigration application process, medical fees, criminal checks, retraining in Canada, re-assessment of qualifications, and re-education. Finally, they are asking for damages in an amount to be determined by the court, primarily because of the failure of the government to provide the inherent promises of the Canadian Charter of Rights and Freedoms which guarantees equality rights. They contend that they did not receive equality because their English qualifications, which are generally highly regarded in Canada, were not recognized here.

Mr. and Mrs. Premakumaran have represented themselves throughout the court process and have been extremely persistent.

Prior to asking The Supreme Court of Canada to hear their case, they had asked for similar damages in The Federal Court of Canada. That case began on November 16, 2001 and ended on August 18, 2005. The one judge who heard this case denied their claim on the grounds that it did not meet the test for fraudulent misrepresentation because there was no “relationship” between them and the government. In other words, the government did not owe a responsibility to them as immigrant applicants, but to the public as a whole.

The Judge also stated that Mr. and Mrs. Premakumaran's claim was related to government policy issues and that the court could not get involved in such issues. The couple had argued that a contract existed between them and the Government of Canada because Citizenship and Immigration had led them to believe that employment opportunities existed for them here.

The couple took their case to the Federal Court of Canada-Appeals Division. It was heard on May 28, 2006 and was dismissed on June 9, 2006. The three judges claimed Mr. and Mrs. Premakumaran had failed to demonstrate that a “special relationship” existed between them and Citizenship and Immigration Canada.

The three judges stated that the couple had not demonstrated that the statements made to them were “untrue, inaccurate or misleading”, that they had not shown that C and I acted negligently, that they had not demonstrated that they had relied in a reasonable manner on the misrepresentation, and that they had not shown that their reliance was detrimental to them in the sense that damages resulted to them.

Mr. and Mrs. Premakumaran say that the evidence clearly shows otherwise. They say that Citizenship and Immigration Canada and the federal government have to be exposed for their fraudulent advertising for skilled immigrants. They say they will fight on until they receive justice. They are asking for public support.

The alleged deceit experienced by Mr. and Mrs. Premakumaran is not unique. According to University of Toronto Law Professor Audrey Macklin, they are the first immigrants to launch such an action against Citizenship and Immigration. They expect to hear within 3 to 6 months if The Supreme Court of Canada will hear their suit. The Supreme Court hears approximately 60 cases per year.

Repercussions of a ruling in favour of Mr. and Mrs. Premakumaran's claim could be substantial for not just the Economic Class, but for the other three categories of immigrants: Family, Refugee and Humanitarian.

Shock waves about CIC's alleged fraudulent advertising for skilled workers would undoubtedly throw suspicion on numerous recent claims by CIC and others that Canada requires large numbers of foreign workers. Many critics say there are few reasons for the current, sometimes hysterical, demands, and that the demands are merely an attempt to import cheap labour.