Court gives go ahead for immigration class-action lawsuit
CanWest News Service
Published: Friday, January 04, 2008
The Federal Court of Canada has given the green light to a national, class-action lawsuit alleging that the Department of Citizenship and Immigration profits off its visa application fees, and has illegally raked in more than $700 million over the past decade from new immigrants.
It is the first time in the history of the Federal Court that a contested class action has been certified — or allowed to proceed as a class claim, says Richard Kurland, the Vancouver lawyer spearheading the matter.
The lawsuit alleges that since 1998, the government has been overcharging on the fees it collects from people applying for immigration visas, whether they are visitors to Canada, foreign workers or students, or people seeking permanent residency.
Using government documents obtained through the access to information process, the lawsuit estimates that roughly 12 million such applications have been processed since 1998 and that at least two million Canadian residents deserve money back from Ottawa.
The difference between the high number of applications and the fewer number of affected people stems from the fact that many immigrants or foreigners filed more than one application over the past decade. Others, especially those on visitor visas, are no longer in Canada and, therefore, not included in the class.
Federal departments are forbidden, under the Financial Administration Act, to charge any more in fees than the amount they need to recoup the cost of their services. The Act also requires departments to have mechanisms in place to ensure that profits aren't made off public services.
In a separate case involving the New Brunswick government last year, the Supreme Court ruled that governments must also repay service fees to citizens if those fees were illegally obtained.
Kurland says the Immigration Department has been “systematically violating” the law for years, in many cases charging more than double what it costs to process visa applications.
In one of a number of defences made in response to the lawsuit, federal lawyers have argued that the Financial Administration Act does not apply to the department.
Kurland suspects the government might have been boosting its immigration fees to fund enforcement activities at Canadian border posts. Even if that's true, he says the law prohibits federal departments from using fees for one service to fund the costs of another.
“What I can't understand is how these rules could not be followed year after year,” he said Friday.
The representative plaintiff at the centre of the class action is Alan Hinton of Coquitlam, B.C. In 2003, Hinton paid a $75 fee to sponsor his Russian wife Irene to immigrate to Canada.
Calculations based on the department's own documents show that the actual unit cost of that application was only $36.69, resulting in a $38.31 profit for Ottawa, the lawsuit says.
Kurland says some families, who have filed numerous applications over the past few years to sponsor relatives coming to Canada, could be owed hundreds if not thousands of dollars by the government.
Kurland's colleague, Toronto lawyer Lorne Waldman, says the class action, if successful could have an impact on governments of all levels across the country.
“The principle involved here is an extremely important one,” he says. “All governments charge fees for various services. The question this case raises is how responsible those governments should be in how they cost out these things.”
Officials at the Immigration Department did not respond Friday to a request for comment.