Government says it's not responsible for danger faced by Afghan immigration applicants

Pushing back against a lawsuit filed by employees of a law firm in Afghanistan that did work for the federal government, Ottawa is telling the Federal Court it has no direct responsibility for any danger the plaintiffs find themselves in now.

Twenty-four former employees of an Afghan law firm employed by Ottawa prior to the Taliban takeover in 2021, together with a former security guard employed by the Canadian embassy in Kabul, launched a lawsuit last September over what they call unreasonable delays in processing their immigration paperwork.

In its reply to the lawsuit, the federal government said the court should consider Immigration, Refugees and Citizenship Canada's heavy workload, its lack of responsibility for directly endangering lives and the fact it never promised the plaintiffs a concrete "time frame" for processing their paperwork.

The government also wrote that "there is no sufficient causal connection between the risks the Applicants face in Afghanistan and any conduct by any Canadian state actor."

"Immigration, Refugees and Citizenship Canada (IRCC) does not have a duty to process the Applicants' applications for permanent residence within any specific time frame," lawyers Martin Anderson, Amy King and Aida Kalaj wrote on behalf of the Immigration Department and Global Affairs Canada in a response posted publicly by the Federal Court of Canada.

The plaintiffs — who say they are in constant danger of Taliban reprisals — are asking for expedited decisions on their applications. All but one are still waiting for answers on whether they will be able to move to Canada.

Their lawyer, Sujit Choudhry, said it's now up to Federal Court to decide whether to grant leave for their case to proceed.

In its court filing, the federal government said that — in a note signed by Immigration Minister Sean Fraser on Sept. 20, 2022 — it recognized that employees of the law firm, Shajjan and Associates, are among those "operationally active in Afghanistan" who "have direct knowledge" of dangers faced by individuals there.

The lawyers representing the plaintiffs said most of their clients only started receiving invitations to apply for the Special Immigration Measures (SIM) program — the second step in a process meant to fast-track immigration to Canada for Afghans who worked for the federal government, along with their loved ones — after the lawsuit was initiated last September.

"The very premise of the policy is that the members of Shajjan and Associates are at risk," said Choudhry, one of two lawyers representing the 25 Afghans. "That risk didn't disappear because of the fall of the government of Afghanistan. In fact, it's the fall of the government of Afghanistan that put them at risk.

"There's been no progress on their files and they remain in limbo."

In its court filing, the government contended that the waiting period for the applicants only started in October and November of last year, and its "public duty to act only arises when applicants submit a complete application."

"That duty did not arise in August and September 2021 when [the applicants] expressed an interest in the SIM program by contacting Global Affairs Canada and IRCC via email and web form," the government argued, adding that the online application form explicitly said that "submitting this form does not mean you've applied for something."

In affidavits filed with the court, most of the plaintiffs said they've been in hiding since the summer of 2021. Most said their homes had been searched by the Taliban, two said they had been interrogated by the regime and one reported being kidnapped and tortured for two months.