canadavisa.com

Justice Delayed is Justice Denied

December 08, 2006

Hassan Samimifar is bitter, and it is hard to blame him for feeling that way.

Mr. Samimifar, an Iranian national, arrived in Canada 21 years ago and immediately applied for refugee status. Until 2003 he was waiting for an answer. When his file was finally addressed, his application was refused. After an immigration hearing scheduled for early December, Samimifar could be deported to Iran by early 2007.

Samimifar was told his application was refused because of alleged ties to a terrorist organization, a Marxist group called MEK which sought to overthrow the Iranian government. The Canadian government's allegations stem from lectures and demonstrations he attended while he was a university student. Samimifar is now 47 and says he was never a member of the group, and has had no contact with them since arriving in Canada.

While delays can be expected from time to time, Samimifar has now spent nearly half of his life in legal limbo. Arguing that the wait has cost him some of the best years of his life, he is suing the Canadian government for $5 million in lost income and damages. That case is still before the courts.

Under Section 11 of the Canadian Charter of Rights and Freedoms, any person, regardless of citizenship status, has the right to have their case tried within a reasonable amount of time. This right has been clearly upheld and defined in criminal law, but immigration law in Canada falls under another category, administrative law. The spirit of the charter is still applicable here, as it refers only to "any person charged with an offence". As the refusal of his application is based on an allegation of membership in a terrorist organization, this charter guarantee should apply. The law does not give Mr. Samimifar a right to be in Canada, it does however call for fair treatment.

We have to ask, what went wrong here? Some of the responsibility lay initially with Mr. Samimifar himself as he was convicted in 1986 of causing a disturbance after an altercation with immigration official, something that delayed his application for permanent residence. That can certainly explain some of the delay but not two decades. Mr. Samimifar's application was approved in principle for permanent residence in 1994 but he would wait another 9 years for a decision, which would turn his application down.

By any stretch this could not be called a normal processing time. While the legal precedents apply specifically to criminal law, the spirit of justice and fairness dictates that Mr. Samimifar should be allowed to stay in Canada after the wait he has had to endure.