Hello out there,
You may know someone going through same situation,so try to help them out with this information please.
Topic: delayed background check / CSIS/Mandamus
Posted: 15 Feb 2010 at 8:29am
I want to share my experience in the hope that it helps others in the same situation.
I applied for federal skilled worker class a few years ago and since I was living in Canada then (on a student visa), I sent my application to Buffalo. My assessment was done within the usual timelines of that time and I received my medical form after a year and a few months. But after I did medical, I didn't hear back from CIC (immigration) anymore. After a few months, I sent them an email and the response was "We have requested background information from other government offices(s). We cannot provide a date when the processing of your application will be complete."
This typically means that your file is sent to CSIS (Canadian security agency) for an in-depth security check. In many cases of in-depth security checks, after several months, the applicant is called in for a (security) interview and if everything goes well, they get their immigration in 3-4 months after the interview. But in my case, after waiting for more than a year and sending several emails, nothing was happening. They neither called me for an interview nor asked me any questions.
I tried to find other ways:
1- I asked my MP (member of parliament) for assistance. They contacted CIC on my behalf, but CIC gave them the same answer. Apparently, MPs can help you when the problem lies within CIC, but if it is a security check, they cannot do anything.
2- I got the CAIPS notes for my file several times. They usually block out everything related to security checks from the CAIPS notes they send you, but I found some evidence that there was a misunderstanding between CSIS and CIC regarding my file (each one was waiting for the other). That could contribute to 2 years of the delay, but even after the misunderstanding was resolved, nothing was happening.
3- I sent a letter to the director of CSIS asking if they are working on my file. By law, they have to answer (I guess within a month). I received a letter in response that confirmed they were working on my case, but they said they couldn't give me a timeline for completion. After a few months, I sent them another letter and explained that I'd lose some important job opportunities if I didn't get my immigration soon and told them that I was ready to attend any interviews, etc and explained that I had never been involved in any criminal, military or political matter. The response was the same as the first response.
4- I talked with a few immigration consultants and an immigration lawyer and they all told me that there was nothing that I could do expect for waiting.
More than 3 years had passed after I did my medicals and still no answer from CIC (except for "we are waiting for background checks"). One day when I was googling to see if someone had the same problem, I found a forum post with a reference to the possibility of taking the case to federal court based on a concept called "writ of mandamus". But the forum post was written by someone who hadn't done this himself, so there were not many details about that.
So I checked the website of the Federal Court of Canada and used their "decisions search" feature to find cases (from the menus, choose “decisions”, and then “search”) on mandamus cases against the Ministry of Citizenship and Immigration Canada. Looking at tens of cases, I figured that I could in fact use mandamus.
Now, if you are a person with a history of involvement in criminal or terrorist acts, then you deserve having a hard time getting a security clearance.
But if you are like me and you know you have done nothing wrong, then you can assume your background check was delayed because of reasons like
- misunderstanding
-your file being lost or assigned to a lazy clerk
-Being born in a country that is considered suspicious
-Name similarity
In that case, keep reading this post.
I literally looked at 20-30 cases. Most of them did have some issues in their past (like membership in terrorist organizations), but a few were just ordinary people. All in all, based on previous rulings of the court, my conclusion was that you can use mandamus if the delay in your immigration file has been "unreasonable". To be regarded as unreasonable, a delay must meet the following three conditions:
(1) the delay in question was longer than the nature of the process required, prima facie;
(2) the applicant and his or her legal counsel were not responsible for the delay;
(3) the authority responsible for the delay did not provide satisfactory justification.
It seems that a period of more than four or five years has been accepted as "the nature of the process required" in previous rulings. There are even previous cases involving permanent residence applications where delays between three and five years were found to be prima facie longer than required (see cases of Platonov, supra, Kalachnikov, supra and Hanano, supra).
You can go to
http://decisions.fct-cf.gc.ca/en/index.html and use the keywords "mandamus" and "immigration" and "CSIS" to find similar cases.
Note that in many cases, immigration had claimed that the delay is not their fault because they did their part in a timely manner and it was CSIS that caused the delay. But interestingly, many judges didn't accept that excuse and ruled that the applicant is a client of CIC and not CSIS and it's the duty of CIC to give them a response one way or another and dealing with CSIS is CIC's issue, not that of the client.
So I used the case summaries in the Federal Court website and compiled a list of all lawyers who had a successful mandamus case (note that you need an immigration LAWYER for this and not an immigration consultant). I then tried to find their contact address by googling their name and contacted each of them asking for quotes.
Be careful here! Some lawyers may not know enough about mandamus and they may mislead you by saying that even if your application has been in process for more than 4 years, you cannot use mandamus. Ignore those guys.
Also be careful about the costs. I got quotes ranging from $2000 to $8000. I finally went with a lawyer that had several successful cases and charged me $2000 for a mandamus application. Our agreement was that if the matter was not solved before the court date, I would pay an additional $1000 to him to appear in the court.
So my lawyer filed a claim on my behalf based on the fact that I had been waiting for my immigration for a bit more than 4 years and the fact that I had never been involved in any "bad stuff". My lawyer told me that in most of the cases, the moment you sue immigration, the wheels start to move and CIC tries to finalize your file before they have to appear in court. So most likely, you'll get your immigration before the court date. And that was exactly what happened to me. When you file for mandamus, it may take around 3 months for the court to accept to take your case and set a court date and the court date may be within 3-4 months of that time (so your court date may be 6-7 months after you file your claim).
In my case, right after I filed my claim, immigration contacted me and asked for my updated address. Then, they started to ask for some documents, etc (including renewing my medicals). After the court date was set, they seemed to double the speed! Long story short, I got my immigration visa shortly after the court date was set (i.e., a few months before the court date).
So I strongly recommend this approach to whoever has been waiting for more than 4 years and knows in their heart that they don't have any skeleton in the closet.
Here is some additional info:
1- An immediate concern would be that if you sue immigration, they'd retaliate and reject your immigration application or get you in trouble somehow. Fortunately, it doesn't work that way in Canada. They don't take this personally and they can't reject you without a good reason (at least if you have applied before 2008 when the Immigration Act changed).
2- In what I suggested above, the legal case is between you and CIC. That is, CSIS is not directly a part of the case. Another approach is to make a complaint against CSIS. Once you write a letter to the director of CSIS, if you feel that their answer is not compelling and they are keeping your file without any good reasons, you can submit a complaint to Security Intelligence Review Committee (SIRC) [see the details on the CSIS website]. I didn't try this and honestly I was skeptical about it, but later I heard from a friend of my friend that he went with this option and it worked for him. The advantage is that this is free of charge and you don't need a lawyer (because SIRC is not a court). Note that you may pursue both options (suing immigration and complaining to SIRC) at the same time.
I went through a lot of frustration while I saw that everyone who had applied years after me got their immigration, but my file was stuck and CIC wouldn't help me a bit. I found this information one bit at a time during my years of struggle and I hope that sharing it would help people with the same situation as me.
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