Plaintiffs say new law forces them to spend too much time in Canada

Petti Fong
Vancouver Sun; Canwest News Service


Monday, December 22, 2003
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Ottawa sued over residency cards

A group of about four dozen permanent residents in Canada have filed a lawsuit against the federal immigration department, claiming a new requirement for identification cards has caused them irreparable harm and separated them from their families over Christmas.

The Lower Mainland residents, who maintain a permanent residence in B.C. but who frequently travel to Taiwan and China for business and other reasons, are seeking $50,000 each in damages from the federal government.

In a statement of claim filed Friday in Federal Court, the plaintiffs say the minister of immigration engaged in systematic discrimination of permanent resident cards based on their nationalities.

Under Canadian entry laws, passengers from certain flights require a permanent residence card, while those from other countries do not have similar requirements.

Lawyer Lawrence Wong, who is representing the 46 plaintiffs in the claim, said Friday it's discriminatory because flights from western countries are mostly exempt, but departures from African and some Asian countries require that travellers have the card.

Some exemptions include passengers from Hong Kong and Korea who do not need the card, but people arriving from China and Taiwan must have a card or risk being turned back.

Most of Wong's clients are from Taiwan and they all have spouses or children living in the Lower Mainland. Because of work obligations or to care for elderly parents they frequently return to China and Taiwan.

But the law tightens residency requirements for landed immigrants, demanding that two of every five years be spent in the country.

\"The government basically has not treated these so-called 'astronauts' fairly. Under the previous legislation, you were allowed to go back and forth all the time as long as you don't have the intention to abandon Canada,\" Wong said.

\"It's fine to say to these people 'We want you to spend more time in Canada,' but you have to let them know first,\" he said. \"It's too late for them to relive their life.\"

The federal government has not yet filed a statement of defence or responded to the suit. Janis Fergusson, a spokeswoman with citizenship and immigration Canada, said the department was not aware of suit.

An estimated 1.5 million people living in Canada are eligible for the permanent resident card but not everyone will apply for one.

So far, 850,000 cards have been issued nationally, 93,000 of them by the Vancouver office, which will be open for three days next week before closing for Christmas.

All permanent residents -- people living in Canada who are not citizens -- must have the new cards by Dec. 31 in order to return to Canada from other countries.

\"There have been measures to assist people who have last-minute travel plans,\" Fergusson said Friday. \"We've given people options of how to get the card urgently or how to get a temporary document from overseas.\"

Plaintiffs in the suit failed to meet the new residency obligations required to be considered permanent residents because they could not prove they lived in Canada two years out of the last five. They were required to re-apply for their permanent resident cards based on humanitarian and compassionate grounds.

But because there is such a large number of applicants for the cards, Wong said his clients will not have an opportunity to make their case for humanitarian and compassionate grounds before the Dec. 31 deadline.

The suit claims this amounts \"to denial of the plaintiffs' vested rights without a fair hearing.\"

Each of the 46 plaintiffs is seeking $50,000 in damages for the delay in receiving a card. Should they be refused the card, the damages sought jump to $250,000 each.

The suit also seeks to extend the claim to a class action, on behalf of between 50,000 and 100,000 people in similar straits across the country. The suit has not yet been certified as a class action.

Fear of being denied entry into Canada has left many of his clients unable to travel over the holiday season, Wong said Friday. It is already forcing them to change their plans to spend Chinese New Year, which is on Jan. 22 this year, with their families in Canada.

\"There is an urgency in resolving this,\" he said. \"For my clients, their only chance of getting a card was to get to this H&C [humanitarian and compassionate] review.\"

Wong said between 50,000 and 100,000 people in Canada, mostly in Vancouver and Toronto, are in a similar position of having to frequently travel to Taiwan and mainland China for work or family reasons.