Canadian court rejects rich migrants’ compensation claim over defunct visa scheme

Federal judge kicks out case by 1,500 applicants trying to force Canada to process visa applications under the repealed Immigrant Investor Programme or pay millions in compensation

PUBLISHED : Friday, 27 June, 2014

 

Ian Young in Vancouverian.young@scmp.com 

Canadian judge has stopped a legal attempt to force the minister of immigration to process applications or pay compensation. Photo: AFP

Canada’s Federal Court has slapped down a bid by about 1,500 rich would-be immigrants, most of them Chinese millionaires, to force the government to process their visa applications under the defunct Immigrant Investor Programme, or pay them C$5 million (HK$36 million) each.

In a strongly worded ruling, Justice Mary Gleason said “would-be immigrants have no right to force the Minister [of immigration] to set any particular quota for any economic [immigration] class. This determination is in keeping with long-established principles, which hold that no one possesses a right to immigrate”.

The ruling was dated Monday, but only made public on Thursday. Its release came one week after the controversial Immigrant Investor Programme (IIP) was formally shut down, with the passage of legislation in Canada’s parliament. The applications of about 60,000 would-be immigrants – about 80 per cent of whom were mainland Chinese who filed their applications in Hong Kong – have now been formally scrapped.

The announcement in February that the IIP was being axed triggered the lawsuit, which was organised by Toronto immigration lawyer Tim Leahy. Leahy had asked the court to order that his clients’ applications be processed, or that each be paid C$5 million in compensation.

Would-be immigrants have no right to force the Minister [of immigration] to set any particular quota for any economic [immigration] class

JUSTICE MARY GLEASON

Leahy had argued that his clients’ applications were unreasonably delayed by the way Canada handled a massive backlog in the IIP, that was created when tens of thousands of rich Chinese swamped the Hong Kong consular office with applications before the scheme was frozen in 2012. Ottawa had decided that new applications would be processed concurrently with old ones, but Leahy said this was unfair, and a “first-come, first-served” approach would have seen his clients admitted to Canada before the scheme was axed.

Leahy also argued that the intake for the scheme should have been increased.

Gleason said: “I am far from convinced that counsel for the applicants has demonstrated that if either or both of these two things had occurred, [the applications] would have been processed by now.”

The judge also rejected an argument that Leahy’s clients deserved protection under the Canadian Charter of Rights and Freedoms, and that these rights had been violated by the government.

Said Gleason: “[The applicants] neglect to deal with the significant jurisprudence of this Court and of the Federal Court of Appeal that holds that foreign citizens outside Canada have no rights under the Charter in respect of activities that occur outside of Canada.

“I need not decide in this case whether the Charter does extend rights to the applicants as, even if they possess such rights, none have been violated in the treatment of their visa applications in these matters.”

Gleason also rejected what she called “vague assertions” that the applicants had had their rights to equality under the law violated, and that the principles of federalism had been breached by the preference given to other applicants who sought to migrate under Quebec province’s parallel version of the IIP, which is still functioning. “Neither of these claims has any merit,” she said.

Leahy said he planned to appeal the ruling on behalf of his clients, more than 1,300 of whom are Chinese.

“Justice Gleason’s ruling … disabuses anyone trusting in Canadian law that, if CIC [Citizenship and Immigration Canada] abuses them, they may count on the Federal Court to ensure fair treatment and the rule of law,” Leahy said in a statement.

“Instead, it affirms that the Minister of Immigration may rule with impunity in the same manner as the tsars ruled Russia once did – except, of course, that he will never have to face a firing squad for anything he does to those whose fate he has in his hands.”

The IIP was the world’s most popular wealth migration scheme, helping waves of rich Hongkongers and mainland Chinese move to Canada over the past 28 years. Under the scheme, applicants worth a minimum of C$1.6 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.

By 2010, applications at the Hong Kong consulate, nearly all of them lodged by mainland Chinese, surpassed the combined number received globally for investor migration schemes run by the US, the UK and Australia. In the decade to last year, the scheme brought 42,435 rich migrants to British Columbia province alone, out of a national total of 91,745, although the latter figure is believed to include admissions under the Quebec scheme.