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| Colin Singer |
In the case of Bidgoly v. Canada Citizenship and Immigration, 2022 FC 283, challenging lengthy processing time due to ongoing security checks on an application for permanent residence under Express Entry by Canada’s federal immigration authorities, Justice Paul Favel rejected Immigration, Refugees and Citizenship Canada’s (IRCC) claim that processing was delayed due to an ongoing security check and COVID-19 related difficulties.
Justice Favel granted a judicial review of the matter and ordered Bidgoly’s case to be processed within 90 days.
The decision, dated March 1, 2022, also forces IRCC to provide more detailed, transparent reasons for lengthy processing delays on permanent residence applications — even under the COVID-19 pandemic.
In rendering his decision, Justice Favel stated: “To rely on either the pandemic or the difficulties associated with security assessments, the Respondent is obliged to provide such evidence. Simple statements to the effect that a security check is in progress or that the pandemic is the reason for ongoing processing delays, are insufficient.”
Timeline of the application
IT entrepreneur Siavash Mahmoudian Bidgoly (the applicant) first moved to Canada from the United States on a work permit in July 2018, with his spouse joining him a month later. He started his own company in September 2018 that employs residents of Canada.
After submitting a profile to the Express Entry Pool in April 2018, he received an Invitation to Apply four days later, then submitted his full permanent residence application, including his wife as a dependent, on July 22, 2018. By the end of August that year, his file had been determined complete by IRCC, a criminality check done and the application recommended for Canada’s Federal Skilled Worker Program (FSWP).
Given the published six-month processing standard for applications via Express Entry, the case seemed to be progressing in a timely fashion. But then, nothing happened for nearly a year.
By June 2019, the applicant and his spouse’s medicals had expired, meaning they had to be extended. In August the same year the application was deemed to have met FSWP eligibility requirements. Despite appearing to be nearing a conclusion, the file was then referred for an admissibility assessment, which cannot be completed without a security screening.
All the while, the applicant asked about the status of his application several times via access to information and privacy requests, and an online inquiry to the IRCC in July 2019. He was told only that “his request was forwarded to the appropriate office,” court documents show.
From August 2019, the applicant began involving MPs, and in December discovered his spouse’s security check was complete, but his was still in process. Several more follow-up requests were made, but each time Bidgoly was told the security check and application were still in process. By this time, Canada was in the grip of the COVID-19 pandemic, with restrictions first imposed in March 2020.
The applicant’s argument was that since he had met statutory requirements, he had a right to be issued permanent residence, saying the delay had impacted the establishment of his startup business.
Minister’s position at the hearing
IRCC’s representatives, the Ministry of Justice (the minister), rejected the applicant’s arguments at the hearing, saying Bidgoly had “no vested right to permanent residency”, and that the processing time was not unreasonable and justified given the delay of the security screening, which it blamed on “the lack of a working relationship with the Applicant’s home country, Iran.”
The decision also reports that the minister argued the delay “has not been longer than what is required,” due to the impact of the pandemic, saying that “with the shutdown of government offices, the handling of security matters has become more complicated and limited.”
Federal Court finds in applicant’s favour
In describing the IRCC’s explanations as “unreasonable and unexplained”, Justice Favel took particular issue with the lack of transparency and details in the respondent IRCC’s reasons. On the security check argument, Justice Favel wrote: “A blanket statement to the effect that a security check investigation is pending, which is all that was given here, prevents an analysis of the adequacy of the explanation altogether. And security concerns instead appear to be lacking as a result.”
He also wrote: “Further, I reject the Respondent’s submission that part of the delay is attributable to the lack of a working relationship with Iran. If the Respondent wished to rely on this argument, it should have provided evidence …”
Justice Favel comprehensively rejected the argument that the pandemic contributed to the delay, stating “I do not find the Pandemic to be a satisfactory justification,” he wrote. He added: “In this case, there was already a delay of 19 months by March 2020. The delay was already unreasonable by the time the Pandemic began […]”.
Judge Favel continued: “[…] the impact of the Pandemic is not a satisfactory justification without more detail on how it has affected Express Entry applications.”
He added: “The Pandemic has been a gradual part of life since March 2020, and processes have slowly resumed [ ...] All institutions throughout Canada have also adapted to addressing backlogs and delays to varying degrees of success.”
What this means for pending applications facing lengthy security assessments
Applicants under the Express Entry immigration system, incurring lengthy and/or excessive processing times due to a security assessment review, may have a legal right to force IRCC to finalize its review in the absence of compelling findings that would point to a security risk, or transparent difficulties it incurs in making such determination. Additionally, representatives in the province of Quebec, which has its own immigration program, may want to consider this decision as a basis to address the pending 29,000 applications for permanent residence, many of which are undergoing lengthy processing due to alleged security assessments.
Note: As there were no questions certified as part of this decision, the Federal Court of Appeal cannot be seized of the matter. This decision should therefore be considered as final.
Colin R. Singer is immigration counsel for www.immigration.ca. He can be reached via Twitter: @immigrationca.
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