Canadian court victory for group of Chinese migration applicants

Would-be migrants allowed to challenge decision that dumped their applications to controversial investor scheme

PUBLISHED : Monday, 10 March, 2014, 6:01am
UPDATED : Monday, 10 March, 2014, 10:15am

Would-be migrants who were dumped from Canada's visa queue when Ottawa axed its millionaire migration scheme have won the right to challenge the decision in the courts, in a key legal victory for the mostly Chinese applicants.

A group of 95 disgruntled applicants were granted leave by Canada's Federal Court on Friday to seek a judicial review of February's decision that resulted in about 50,000 rich Chinese having their immigration applications terminated.

Toronto immigration lawyer Tim Leahy, who organised the case, said on Saturday that anyone wishing to join the legal action should do so before an initial hearing in Toronto in five weeks.

Leahy, who heads the Forefront Migration consultancy, said the decision to simply eliminate backlogged applications when it was announced that the Immigrant Investor Programme was being ended represented "moral bankruptcy" by the Canadian government.

Under the controversial scheme, applicants worth a minimum of C$1.6 million (HK$11.2 million) received visas for themselves and their immediate family in return for loaning the government C$800,000 interest-free for five years, after which the loan was returned in full.

The programme has been a key means of migration for rich Hongkongers and mainland Chinese over the past 28 years. Immigration data provided by Leahy showed that of the 66,434 undecided individual visa applications in the federal immigrant investor backlog as of last July, 50,131 had been lodged via Hong Kong. Virtually all are believed to be mainland Chinese.

Leahy said that Canada's immigration minister, Chris Alexander, and his predecessor, Jason Kenney, "only want to boast that they cleared the backlogs, not that they attracted immigrants likely to contribute to Canada".

Friday's court decision applies to 95 applicants, of whom 86 are mainland Chinese. But Leahy said that a total of 122 would-be immigrants had now joined the case, and he expected the decision to apply to all who decided to join the case before an initial hearing in Toronto on April 15. Would-be participants can contact Leahy via the website.

Leahy's case was launched in 2012, after Ottawa stopped accepting new applications to its immigrant investor programme. The case was originally intended to expedite the processing of his clients' applications.

However, the decision to scrap the scheme and dump the tens of thousands of backlogged applications vastly increases the potential implications of the case; those who were in the queue now have no incentive to simply wait for their cases to be assessed, rather than seeking legal redress.

[The ministers] only want to boast that they cleared the backlogs
Tim Leahy, lawyer

The decision was announced on February 11, tucked in as a provision of Canada's federal budget. The termination will only go into effect when the budget is passed by parliament at the end of June.

"Because it takes 90 days for pleadings to be complete, it is unlikely that counsel who initiated litigation after Mr Alexander declared his intention [to scrap the scheme] will have a hearing date before the Budget Bill, in which the kill provision is buried, is passed," Leahy said.

After the April hearing to set parameters, the case will likely be argued before the Federal Court in early June, thus beating the scheme's official termination. Leahy's cases have been compiled under the name of one Chinese applicant, Baoxian Jia.

Leahy said it was not too late for others to join the lawsuit. "I would expect [it will be agreed in April] to have the ruling on Baoxian Jia apply to additional federal investor applicants, who join the Unfair CIC group by a date yet to be set," he said.

Friday's Federal Court ruling granted the applicants leave to seek judicial review of "the decisions of undisclosed persons made on unknown dates not to honour the pledge to assess and finalise within the foreseeable future the applicants' applications for permanent residence".

The ruling said the applications had been lodged at the Canadian consulates in Hong Kong, London, New Delhi, Ankara and Pretoria.

The judge, Anne Mactavish, allowed the 95 cases to be consolidated for the hearing.

Leahy cited a South China Morning Post interview with Alexander as evidence that the minister was displaying "a complete lack of sincerity and callous disregard for immigrant applications". In the interview, conducted on February 12, Alexander said the government still wanted the axed applicants to seek other ways into Canada.

"He did not explain why he is abolishing all their files without having first devised a replacement programme," Leahy said.