Waggle

I don't suggest for a minute that CIC can wave a magic wand and get through the backlog quickly. But I think there are legal implications of scrapping old applications which could be exponentially more costly than simply being forced to refund the processing fees. I believe that money could be put to better use.


They might start by spending money improving the communications process. Visa offices posting regular, accurate reports of their current work patterns and which received dates they are working up to etc might take up a small amount of time for 1 person to do that job. But it could potentially save hundreds of hours of incoming queries each week from applicants eternally asking "What is the status of my application?"

And CIC's IT infrastructure seems so archaic it almost insults the concept of IT. An applicant should be able to complete an application completely online, pay the fees online, print + sign the forms and when CIO get the application all the relevant information is already in the system. Upon receipt a quick barcode scan and the applicant should be able to instantly tell that their application has been received by CIO, rather than having to wait 2,3,4,5 months before hearing from them to find out for sure if their application even got there.

Also this CAIPS/GCMS notes thing, along with the pitiful amount of mostly out-of-date information ECAS offers, is ridiculous. Why can all the information shown in CAIPS/GCMS notes not be made available to the applicant via ECAS, all nicely translated from codes into understandable English / French? Obviously (for both performance and security reasons) CIC can't give access to their live data system, but nightly data transformation to a staged database could provide information about an applicant's file that is no more than 24 hours old. No need for CAIPS notes to see exactly what's going on.


I believe CIC could make signficiant efficiency gains and faster backlog processing by simply stepping into the 21st century.

Wayne.

Almost Canadian

Contract laws in England and Canada are virtually identical. I take exception to what you have stated above.

Unless the Canadian Government made you an offer, there is no offer to apply. Any such "offer" would likely be an invitation to treat. (Just like when a supermarket puts the price of an item on display. This is an invitation to treat, you make the offer when you present the item at the checkout). You may the offer when you apply. As they haven't accepted your offer if they haven't opened your application, no contract exists.

There is also the issue of intention to create legal relations. Generally, there is a rebuttable presumption for non arms length parties. It would be relatively simple for CIC to argue that such a presumption should be rebutted in this instance.

IMVHO, legislating the backlog away would not be too problematic for the Government. Parliament is supreme, providing it meets the requirements of the constitution, it could be done without too much pain at all. Reimbursing the application fees issue could be achieved on a drip-drip basis.

Waggle

I completely agree that no contract exists if they haven't opened your application. But once the application has been opened, completeness checked AND they have cashed your money, I believe an offer, acceptance and consideration are all in place. At this stage they have accepted payment to provide a service, and IMO this consistutes a legal contract.

I am certainly no lawyer, however, so this is just my unprofessional opinion on the matter, which I accept could be totally wrong

Regarding reimbursement of the application fees, this can already take up to 6 months, so even current rejection applications prior to processing are drip-dripping!

The government took all this money from the applicants. I imagine even in this climate the compound interest profit the government has made on processing fees for some of these 2004 applicants is not an inconsequential % of the fee. Will the government also be refunding the interest profit they have made to the applicant? I seriously doubt it.


I think if you dig deeply enough there will be serious legal issues with CIC simply cancelling an application once they've accepted it and taken the fee (after all, this is what the completeness check is supposed to be about).

Nobody is above the law. Even the, IMO, the law

Wayne.

Almost Canadian

As I said above, Parliament is supreme, it can enact retroactive legislation if it so wishes. If it enacts legislation that is constitutional, any contract that did exist would be incapable of being performed as a result of "frustration".

I believe that there is likely to be very little recourse available to potential applicants if this is what the government decides to do. Alternatively, they could let the backlog stay where it is and process one such application a year for the next x years, retaining all of the fee in the meantime. Which would you prefer?

sdo1982

Having read and re-read the actual transcript of the briefing he gave...

Face/Palm interface!

All but 2 of the suggestions, a) would involve refunding so much money it would increase the 2012/13 deficit by 10% or b) would mean breaking privacy laws.

In reality, i expect people to be offered a refund or wait in line indefinitely.

Former Lancastrian

What would also be interesting would be to find out how many of these applicants still wish to come to Canada or have abandoned their claims or hopes.
I know its frustrating but this is what happens with a system that at times seems like its being run in the stone age times.
The Govt have previously set targets for immigration at about 200 -250,000
per year.
Just reading through threads on here about applications and do I need to do this or what do they mean by this sometimes leaves me wondering why is the question worded in such a way or is the applicant that thick.
Of course the forms have to appear to be politically correct in their wording as opposed to plain simple language.
In the overseas offices a lot of these applications are dealt with by Locally Engaged Staff (normally citizens of the country where the office is) maybe that is part of the problem. Sending more Canadians overseas to help process cases would cost more and something the Govt isnt willing to do.

Waggle

Using its "supreme" power to bin away its mistakes won't be popular with the voters. If they are idiotic enough to try this, I seriously doubt they will be voted in again.

If they miss dotting a single i, or crossing a single t, whilst implementing the legislation, the potential lawsuit bill on 300,000 cases could be catastrophic.

If they process 1 application from the backlog each year, plus the comparatively smaller number of new applications, what do you expect they should do with the other 9 months of the year? Organise an inter-visa-office hockey season?


IMO they need to draw out a full plan for PROCESSING the backlog, and give much clearer communication as to where they are, up to which dates etc.

Wayne.

Almost Canadian

Which voters?

As is evident, more people apply each year than can accepted. That is a fact. The immigration rules are those that suit Canada, not those that wish to come here. If the two coincide, fantastic.

If the legislation is challanged and found to be unconstitutional, it will be corrected. The same result obtains. That doesn't really assist those whose applications are legislated away. As I am sure you are aware, other common law jurisdictions have enacted similar legislation.

As has been alluded to above, a previous change in the rules caused this. I am thankful that it did. I was not eligible to apply prior, I would not be eligible under the current rules. I was lucky.

ExKiwilass

The voters don't care, trust me.

JAJ

You are confusing contract law with administrative law. The application does have to be processed to a decision, which can of course be a refusal.

And if the Parliament of Canada decides to legislate for a particular outcome, that's the end of the story. The only recourse is a constitutional challenge and even then, Parliament can override it if it wishes (research the "notwithstanding clause").

Waggle

I think the application has to be FAIRLY assessed and processed accordingly to the criteria when the application was received. Deciding not to even look at it and throwing it in the bin is NOT being processed, fairly or otherwise.

CIC state that all applications will be processed accordingly to the rules at the time the application was received.

If they legislate away 300,000 applications, without due process, I think think they may find themselves in a very dangerous legal position.


IMO the best course of action is to calculate how long it would actually take to process this backlog (I heard it would take another 5 years to clear it all - 2017), and offer applicants in the backlog an opportunity to withdraw their applications for a timely return of their processing fees.

This would allow CIC to partially reduce the backlog, with the full consent of the applicants.

If 1/5th of the applicants voluntarily decided to claim a refund - that brings the clearing date down to 2016. If 2/5ths decide to go for it, it brings it to 2015 etc.


Wayne.

PMM

Hi



"IMO the best course of action is to calculate how long it would actually take to process this backlog (I heard it would take another 5 years to clear it all - 2017), and offer applicants in the backlog an opportunity to withdraw their applications for a timely return of their processing fees"

Already has been done, and it got very few takers.

The Gov't can introduce retroactive legislation and it has already done so in the Citizenship Act, and last September added "or" to the following regulation

Bad faith

4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or

(b) is not genuine.

Previously CIC had to prove both portions of 4(1) to refuse, now it is either or and it has been applied to all pending spousal applications right through the Appeal level, even those that were refused 3/4 years ago.

Jim Humphries

Retroactive events occurred in 1983 when a severe unemployment situation arose in Canada as well.

bigals

I read the article then read the responses to it at the bottom,,,,seems to me like Canadians dont want us here ,we are stealing their jobs using all the welfare money and health care with our old and ailing parents,,,,made me smile lol

Auld Yin

Exactly the same responses to articles about UK immigration in that country's media.