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‘Will we grow old separated like this?’ Tired of pandemic limbo, spouses have found a new way to fight Canada’s immigration backlog

‘Will we grow old separated like this?’ Tired of pandemic limbo, spouses have found a new way to fight Canada’s immigration backlog

Indervir Kaur Dhaliwah had no interest in a long-distance relationship.

So when a friend asked if they could play matchmaker and introduce the Brampton woman to someone living in the U.K., she hesitated.

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But after a few exchanges of messages and photos, she had her first phone chat with Baljit Singh.

It lasted for hours.

“Our first meeting was magical. He’s the friend you can rely on in time of need or to call at 3 a.m. By the grace of God, we were joined together, we fit perfectly like the last two pieces needed to complete a puzzle,” said Dhaliwah.

“It was clear to me and him that we had found the person we wanted to build a future with.”

In that October 2018 conversation, the pair talked about family, politics, interests, movies, exercise, diet and their future plans.

Over the next six weeks, they would spend all waking moments after work on video calls.

Eventually, she flew over to meet him in person, a trip she would make three more times before the pair married in his village in India in March 2019.

Today, more than 30 months after the wedding — the last time they held each other — the couple are still stuck in a virtual relationship, as immigration bureaucracy keeps him from joining her in Canada.

“I met a wonderful, perfect husband. We are not young; will we grow old separated like this? We missed celebrating our first and second anniversary and everything. My physical body is here but my heart is in shambles,” said 49-year-old Dhaliwah, who is eight years older than Singh.

“Our days and nights are spent alone. We get a few hours in between to share our day, but we are not living it. It is not shared experiences; they are recounts of a day that has passed separately. I carry sadness every second of the day, everyday. I don’t know how to cope with this.”

Indervir Kaur Dhaliwal and her husband, Baljit Singh, have not seen each other since their wedding in March 2019.

Dhaliwal has now turned to Canada’s Federal Court, joining a growing number of immigration applicants seeking orders from judges through what’s known as a “mandamus application” to compel immigration officials to act on files caught up in unreasonable delays.

“I’ve never had so many mandamus files in my life, and I’m not the only one,” says Toronto immigration lawyer Chantal Desloges, who has made more than 70 mandamus applications so far this year, compared to about once a year prior to the pandemic.

“People are being so delayed and so desperate that they’re looking for other remedies. Nothing in the legal landscape has changed, but the factual landscape has changed a lot because of COVID.”

According to the immigration department, 134 mandamus applications were referred by the court in the first fiscal quarter in 2021, between April and July, including 62 in family class, 66 in economic class and six as refugees. It surpassed the yearly total of 107 in 2018-19, 64 in 2019-20 and 93 in 2020-21.

The pandemic has caused an exponential growth in immigration backlogs and processing times due to office lockdowns and travel restrictions both here and abroad. Changing immigration rules and priorities throughout the global crisis have served to further frustrate and confuse applicants.

As of July 31, more than 561,700 people were in the queue for permanent residence and 748,381 had a pending temporary residence application as students, workers or visitors while the backlog for citizenship stood at 376,458 people.

Immigration applicants have complained about a lack of communication and scant updates from officials about their applications in the queue.

Dhaliwah applied to sponsor Singh, 41, to come to Canada from India in September 2019. Their application was moving along and looked to be on track under the 12-month average processing timeline put out by the department.

By December, Singh had submitted his fingerprints and undergone his physical examination. Then the COVID-19 pandemic hit in March of last year, and their bid to be together seemed to become frozen in time.

At first, she said, she thought everything would be back to normal after a short delay for the application and that her husband would eventually be able to join her. Instead, she’s watched on as Canada has reopened its borders to international students, foreign workers and other immigrants.

“If there’s a problem with COVID, how do you do all those other files?” asks Dhaliwal, who has now been apart from her husband for two years since filing her spousal sponsorship.

“Things aren’t adding up.”

She reached out to the federal immigration department, her local MP and the immigration minister’s office for updates, but no one was able to explain to her what had caused the delay to their application, other than to say it was related to the pandemic.

“We sent everything to immigration as far as we were guided,” said Dhaliwal. “And we were in the dark.”

In many ways, mandamus applications are nothing new, but what is new is how immigration applicants have begun organizing and sharing information through social media as they try to get help to move their cases forward.

“So all of these delays that people are having, they’re looking outside their normal course of business and saying, ‘Well, is there anything else we can do?’ And now they’re just becoming aware that there is this option,” Desloges said.

And the litigation seems to work.

Vancouver immigration lawyer Erin Roth represented a group of 41 spousal sponsors this year, who had all experienced lengthy processing delays, many predating the pandemic. All but two have received a decision.

“It has been a positive experience,” Roth told the Star.

While officials traditionally process cases on a first-in, first-out basis, the pandemic, she said, has caused regional lockdowns in immigration offices across Canada and abroad, disrupting workflow and the order in which applications come in and are handled.

In two mandamus immigration cases heard by the Federal Court this year, the immigration department was found responsible for the delays and ordered to finalize both cases and pay damages to the litigants — one was awarded $1,500, the other more than $62,040.

The majority of the applications are from couples in spousal sponsorships, who have endured prolonged separations during the pandemic.

But lawyers say other mandamus applicants have included parents and grandparents awaiting family reunification and skilled workers waiting for permanent residence.

While most applications involved migrants from India, the top source country of immigrants to Canada, others came from Africa, Latin America, Middle East and South Asia.

“The immigration department, to its credit, when cases like this come to their attention, they do what they can to try to resolve them without resorting to litigation. That’s always our goal as well,” Desloges said.

“My goal in filing a mandamus is not because I think it’s fun to go to court and spend thousands of dollars of a client’s money. What we’re really hoping is to at least be able to have a conversation to say, ‘Look, this seems to have gone off the rails somewhere. Is there any way we can get it back on track and everybody can go home happy?’”

While mandamus appears to be an effective tool for frustrated immigration applicants, the trend is creating concerns over the different levels of access to justice for those who can afford to hire a lawyer compared to those who cannot.

After Singh and Dhaliwal’s wedding, they figured it would by easier for Singh to relocate to Canada, because he worked in construction and could adapt quite comfortably, while she had a job as a registration administrator with a professional licensing body.

To date, Dhaliwal has spent $8,300 to try to bring Singh here, including $1,500 for the sponsorship application, $3,000 to a lawyer to put together the application package, $1,800 on the medical and other necessary documents, and now $2,000 in legal fees for the mandamus application. The case is still before the court and will cost several thousand dollars more if it goes to a full hearing.

“We can’t control COVID. It’s unprecedented. It’s global and our file is just another wave (of COVID) away from being delayed again,” she says. “I feel like the longer we wait, the more harm it’s doing to us. I can’t put a price tag on our mental health and our future.”

Dhaliwal said the immigration department had never disclosed the reason for the delay of their application even when she applied to obtain officers’ notes on the case last year.

And it was during the litigation this year, she learned an officer had flagged their case due to the couple’s age difference — her, 49, and him, 41 — their “incompatibility” and the fact it’s her second marriage and spousal sponsorship. The officer recommended an interview back on July 15, 2020, but none was ever scheduled.

“We were writing emails and contacting everyone for information and we weren’t getting the answers we needed. So literally I had to pay for the mandamus to get the answers, to get the transparency,” said Dhaliwal, who had to see a therapist for anxiety over Singh’s immigration application.

“We shouldn’t have had to pay it. It’s not necessary. I should have been given the information upfront by immigration. Nobody should be in this situation.”

The immigration department’s response to court in Dhaliwal’s case sheds light on the chaos in its offices during the pandemic.

In asking the court to dismiss the case, the department said the High Commission of Canada in India was only operating at 30 per cent staff capacity as of July. In-person interviews were still not permitted due to the lack of necessary information management and or information technology capacity.

It cited a letter to the Federal Court in June that highlighted the conditions on the ground in its operations in India:

  • Its offices in Bangalore and Chandigarh remained closed while officials in New Delhi struggled to maintain “critical” function only;
  • Less than 40 per cent of officers and fewer than 15 per cent of support staff were able to work remotely, on electronic files only while a high volume of paper files were stored on site;
  • Forty of the department’s 61 overseas offices were only able to deliver critical services.

“There are health and safety reasons for the inability to conduct in-person interviews, limited staff availability, and technological and integrity issues making video conferencing and telephone interviews unacceptable substitute methods of examination,” the department said in its written arguments to court.

“The applicant claims that there has been substantial hardship and prejudice since the applicant and his spouse cannot reside together. The respondent notes that the couple never resided together for any significant period either before or after their marriage.”

The government’s submission did not explain why Dhaliwah and Singh had not been told about the recommended interview and the reasons why one was required. Neither did it say why virtual interviews, already available in other visa posts, can’t be transferred to those offices.

Immigration department spokesperson Jennifer Reynolds said ongoing international travel restrictions, border restrictions, limited operational capacity overseas and the inability on the part of clients to obtain documentation due to COVID-19 have hampered the department’s operation.

Officials have been moving toward a more “integrated, modernized and centralized” working environment to help speed up processing globally, she explained.

“The time it takes to process an application varies according to a number of factors, such as the type of application being submitted, how well and how quickly applicants respond to requests from the department, how easily we can verify the information provided, the complexity of an application,” said Reynolds in an email.

“The department is committed to delivering quality client service across its global network by making our programs and services more efficient, clear and consistent.”

Vishal Ghai, who came here from Kenya as a temporary worker in 2009 and is now a Canadian citizen, met his second wife, Esha Singh, on a matrimonial website in 2016 and flew to India to marry her on Feb. 14, 2017, just months after their online courtship.

The Calgary man, 46, applied to sponsor Singh, 36, and his stepson Vidit, 9, to Canada in 2017 but had to withdraw because he missed his divorce certificate and had to reapply through the Kenyan court. Finally, a new application was submitted in October 2019.

Vishal Ghai (right), his wife, Esha Singh, and his stepson Vidit, 9. Ghai, who lives in Edmonton, has been trying to sponsor his wife and stepson to Canada since 2017.

A restaurant chef, Ghai said he sends about $1,000 a month to his wife and child in India while supporting himself in Canada, even though he was laid off for six months at the onset of the pandemic last year and has taken a $1,000 monthly pay cut since returning to work.

“My wife understands it’s the red tape involved in it, but, unfortunately, she’s being shunned by her family because of what’s happened with the delay, thinking that I went to India just to use her,” said Ghai, who last saw his family in February 2019 after another planned trip was cancelled due to COVID-19.

Last November, the couple were told an interview was required in order to assess the bona fides of their relationship, but nothing has been scheduled. In April, they initiated a mandamus application. So far, he’s already spent $1,500 on legal fees.

“Sometimes, I skip my medication and sacrifice what I eat. It’s become a choice. There’s the financial stress and mental health issues. I’ve lost control of my sugar level,” said Ghai, who is diabetic. “Immigration and justice are for the privileged only, unfortunately.”

On Sept. 16, the immigration department responded to the court, saying their application has continued to undergo processing and there’s no failure on its part to act on the file.

It said the couple are in the queue for an interview and argued that granting an order of mandamus would allow them to “leapfrog” over others who have been waiting even longer than them in the system. The department did not provide a timeline when the couple’s interview will take place.

“Virtual interviews are available at other visa posts but not in India. We just don’t understand why,” said Ghai. “We don’t know when that’s happening. There’s no accountability whatsoever.”

Ishan Modi of Edmonton met his wife, Nartan Tejas Desai from India, online in 2018 and the two got married in December 2019. He applied to sponsor her to Canada the following February, a month before the pandemic hit.

Due to the 11.5-hour time difference between the two, the couple have to co-ordinate and make the time every day to connect live on video calls to keep up with each other’s life. Every morning, he gets up and the first thing he does is to text Desai to make sure she’s free to talk.

“There are a lot of times I cannot explain what’s happening in my life or she cannot explain what’s happening in hers because you have to have the experience to understand something. You need a lot of context. Otherwise, we just go around and around,” says the 31-year-old man, who is the same age as his wife. Both are electrical engineers.

“We’ve continued living like this while maintaining a relationship on phone calls and video calls. When do we get to get together finally and live together like other people in a conventional relationship?”

Aware of the pandemic lockdowns in Canada and in India, Modi anticipated the processing of his sponsorship would slow down but got anxious when his case appeared to have completely stalled in the immigration system.

“Your life is on hold because you don’t know what to do. You have dreams. You have things to accomplish. But you cannot move forward because you don’t know when your wife is going to come over here,” said Modi.

“There’s no one who is taking accountability to help us understand what’s going on or can tell us when she would come over. That’s the most frustrating part, not knowing.”

He reached out to others on social media and realized there were other people in the same boat. In one group forum with 250 people, all experiencing delayed processing, someone brought up this idea of mandamus and Modi decided to give it a try.

With help of Roth, the Vancouver lawyer, Modi submitted a letter to the immigration department in May threatening legal action. It denoted all the dates when he personally contacted immigration and his MP made inquiries on his behalf — a total of 12 times. Each time, the response was there were “no time frames for completion.”

Suddenly in June, his file and others’ in his group started moving again and people started receiving updates, with some being asked to submit their passports for their visas. Desai got her permanent residence visa on Sept. 1.

“I don’t mind spending the extra bucks if it pushes our application forward even by a couple of months instead of like taking 24 months and if it can reduce our pain,” said Modi, who’s planning for his wife’s arrival now.

“It’s not fair that I had to pay someone else to ask the court to ask immigration to process my application, which I’d already paid a fee for.”

If a case is not settled at an early stage, an applicant will have to file an entire legal brief — or application record — which takes time to compile affidavits and legal arguments. Immigration officials will be given time to respond and then the litigant must reply to that response.

If an informal resolution cannot be reached between the parties, the whole file goes to a judge to decide whether the court will throw it out or proceed with a full hearing based on whether the case does take longer than normal and if there are complicated factors involved, as well as the government’s justification.

“If you have to go all the way to a hearing, then the amount of time that it takes might end up being a wash,” said Desloges, the Toronto lawyer.

“It forces them into a position of having to justify … and sometimes the exercise of justification, it ends up being more effort than just giving the applicant what they want.”

The court doesn’t fast-track mandamus applications, meaning they are put in the queue like any other matters before the court and it could be a year to go through all the steps before a case gets heard, she warned.

“One of the arguments that I’ve actually made in some of my written materials to the court is that nobody should have to litigate just to get a fair processing of their files. Nobody should have to go that far,” said Desloges.

“And I do think it sets up a situation where the squeaky wheel gets the grease and those who can afford to go for a judicial remedy may end up getting favourable treatment.”

Roth, the lawyer in Vancouver, stresses that mandamus applicants are not queue jumpers but are people who are left behind and forgotten by the immigration system.

Better communication and more transparency on the part of the immigration department could have avoided many of these legal applications that are costly to both applicants and taxpayers, she said.

The immigration department generally does not respond to case-specific inquiries if an application hasn’t passed the average processing time. For cases that are overdue, Roth said, it will acknowledge receipt of the inquiry and officials will get in touch if anything is needed further.

“I wonder if they are playing the odds and see how many people will have the time, the energy and the money to do it,” said Roth. “Mandamus is not common.”

With more and more people turning to the court for mandamus, her concern is these applications are going to become less effective because it would end up forcing government lawyers and immigration officials to examine every single application.

“In terms of those formal and informal settlements, I don’t know how capable the Department of Justice or their clients (at immigration department) would be to resolve them on a wider scale,” Roth noted.

“Eventually they are going to have to say, ‘Well, this is unworthy and we’re just going to process them in their due time.’”

Nicholas Keung is a Toronto-based reporter covering immigration for the Star. Follow him on Twitter: @nkeung

‘Will we grow old separated like this?’ Tired of pandemic limbo, spouses have found a new way to fight Canada’s immigration backlog