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Nell Touissant Wins but Federal Court of Appeal Victory Bittersweet

June 09, 2011 (Toronto) -- In 2008, Nell Toussaint, a non-status woman living in poverty in Canada after working one precarious job after another and surviving life-threatening medical conditions, asked the Immigration Minister, Jason Kenney to allow her to apply for permanent residence on humanitarian and compassionate grounds (an H&C application) without having to pay the exorbitant $550.00 fee usually required for these applications. This excessive fee effectively bars poor and working class people from filing an H&C application because they are unable to afford it. Nell Toussant based her request on a provision of the Immigration and Refugee Protection Act which explicitly allows the Minister to exempt a person from any requirement under the Act. A reasonable person would think this would include the requirement to pay a fee, but Jason Kenney is not a reasonable person and told Nell she would have to pay to have her application considered.

After 3 long years in the courts, Nell has won her case in the Federal Court of Appeal under Justices Sharlow, Dawson and Layden-Stevenson. At some point before the end of June, Nell will submit her application, without a fee.

However, Kenney plays dirty. He made draconian and sweeping changes to the Immigration and Refugee Protection Act, in part as a response to Nell’s choice to exercise her legal rights to challenge the fee requirement in Court. In spring 2010, Kenney introduced changes to the immigration act which among other things now states that H&C applications will not be considered unless the fee is paid by the applicant or if the Minister himself filed on the applicant’s behalf.

This happened after Nell went to court to fight for her rights, and as a result, the Federal Court of Appeal decision does not address the new laws.

As well,the court dismissed Nell’s charter argument - that requiring a fee discriminates against poor people without status, based on section 15 of the Canadian Charter of Rights and Freedoms (often called the Charter), which constitutionally guarantees legal equality for all people in Canada.

It is very hard to challenge a law in Canada. The assumption is that once Parliament passes a law, that law cannot be challenged by the courts, it can only be interpreted and struck down where it either contradicts a higher law or contradicts the rights set out in the Charter. By ruling against Nell’s argument under section 15 of the Charter, the Federal Court of Appeal has ensured that the new law will stand – people will be forced to pay an exorbitant fee to have their humanitarian application processed.

So the victory is bittersweet. Nell, who has been supported by No One is Illegal - Toronto and the Immigration Legal Committee, has made it clear time and time again to her legal team and her friends that she was spending two hard long years in court to win a victory for other people than herself, and though she is happy to finally be able to apply for status, is troubled that the Federal Court made sure that the fees would be waived for her and her alone.

Once again, we are shown that if we want real victory, it will not come through the Courts. Over the next four years and beyond, with other allies and communities, No One Is Illegal - Toronto will continue to organize on the streets, in our homes, in our schools, in our workplaces and in our communities to see real justice for poor non-status people.