Hot! Justice tempered with compassion

TheStar.com – opinion/editorialopinion
Published On Tue May 17 2011.    By Carol Goar Editorial Board

The timing was unfortunate, but the verdict was an affirmation of Canada’s humanitarian values.

On April 29 — the same day as the biggest royal wedding in 30 years and the final countdown to a suspenseful Canadian election — the Federal Court of Appeal ruled that Ottawa cannot reject an immigration application from an individual who is too poor to pay its $550 processing fee.

“The Minister is obliged to consider a request for an exemption from the requirement,” the court said in a unanimous judgment.

The precedent-setting decision was obliterated by the publicity surrounding Prince William and Kate Middleton’s storybook nuptials. Then it was swamped by the election and its aftermath.

But word of the ruling is now filtering out. To immigrant groups, it is a legal breakthrough. To critics of the court, it is a retrogressive judgment that will drive up costs and unleash a flood of applications from illegal immigrants.

The Department of Citizenship and Immigration, while grudgingly accepting the verdict, insists it will have little or no practical impact.

But it will make a difference.

Federal bureaucrats will no longer be able to deport would-be immigrants because they can’t afford Ottawa’s steep application fees ($550 for an individual seeking to build a better a life in Canada, $550 for his or her spouse, $150 for every dependent child).

The immigration minister will no longer be able to bend the rules for some foreign nationals, but not others. (Processing fees were waived for victims of the deadly South Asian tsunami in 2004 and the massive 2005 earthquake in Pakistan, but not for Haitians fleeing the devastation of last year’s earthquake and not for individuals who apply from within Canada.)

What the ruling will not do is strip the government of its decision-making authority. Ottawa will still be able to deny residency to applicants who don’t meet its immigration criteria. The immigration minister will still have the final say over who gets to stay in the country on compassionate grounds.

Nor will it affect the vast majority of cases. Most would-be immigrants can afford — or manage to scrape together — the money to pay Canada’s application fees. “It is for rare, exceptional cases that cry out for relief,” said lawyer Andrew Dekany, who represented one of the two plaintiffs.

Neither is likely to elicit much public sympathy.

The first, Nell Toussaint, arrived from Grenada in 1999 on a visitor’s permit. When it expired, she remained in Canada working illegally. Then she developed kidney problems. Desperate to stay, she applied for permanent resident’s status, but her application was turned down because she did not submit the $550 fee.

The second, Ben Ndungu, arrived from Kenya in 2000 seeking asylum. Two years later, he abandoned his refugee claim and slipped into the woodwork. Immigration authorities caught up with him in 2007. Facing possible deportation, he pled his case unsuccessfully before the Federal Court. As a last resort, he applied to the minister for clemency, but his plea was blocked because he could not come up with $550.

Both claimed the fee would have imposed “undue financial hardship” on them.

Neither candidate appears likely to get a reprieve from Immigration Minister Jason Kenney, who resents judicial activism and wants newcomers who can contribute to the economy.

But the court was not asked to determine their fate. It was asked whether the minister is required, under the Immigration and Refugee Protection Act, to consider a request to waive the fee when an applicant is unable to pay. Its answer was a categorical yes.

To Toussaint and Ndungu, the ruling offers a sliver of hope.

To those who believe in even-handed justice, it was an affirmation that everyone, regardless of income, is entitled to the protection of the law.

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