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Migrant families challenge immigration application fee

25 June, 2009
Nicholas Keung
IMMIGRATION REPORTER

Should impoverished migrants be exempted from an immigration application fee simply because they can't afford it?

That was the focus of a federal court case in Toronto on Wednesday involving three migrant families who argued that the $550 fee for humanitarian and compassionate applications - a last resort for failed refugee claimants and non-status individuals to stay in Canada - infringes on their constitutional and charter rights.

"The case is about the access to that process," said lawyer Angus Grant, who, along with colleague Andrew Dekany, represented the three families, the Gunthers from Hungary, the Krenas from the Congo and Nell Toussaint, a woman from Grenada.

All three parties, who failed all other avenues to stay here legally, had unsuccessfully asked Citizenship and Immigration Canada to use the discretionary power under the immigration law to exempt them from the fee, one of the requirements for the application to be considered.

Previous immigration ministers have in the past waived fees for victims of the 2004 Tsunami and the 2005 Pakistan earthquake.

The number of humanitarian applications filed each year ranged from 7,776 cases involving 10,439 individuals in 2003 to 1,686 representing 2,456 people last year. The estimated success rate varied from 50 per cent to 75 per cent. Some cases also involve Canadian-born children.

The Charter Committee on Poverty Issues, an advocacy group for the poor and one of two interveners in the case, said the imposed fee forces the impoverished to sacrifice basic necessities to pay for the application.

"The fee contributes to the social cycle of poverty," said the group's lawyer, Raj Anand, in his submission. "Those who cannot make an H&C application lack immigration status and are precluded from accessing social assistance."

Another group, the Low Income Families Together, argued that the failure to pay the fee also results in the separation of families and negligence of the best interests of the children involved in some cases.

"A fee can't act as a bar to the charter and our international law obligations," the group's lawyer, Rocco Galati, told Justice Judith Snider.

However, lawyers for the government said the access to humanitarian consideration, as opposed to access to justice in courts and tribunals, is not a right but "an exceptional relief on discretionary bases." Applicants must meet all the requirements, including the payment and proofs of financial establishment, before they can be considered at the officials' discretion, they argued.

The court reserved the judgement.