"I seriously don't understand why this could happen, you know?"

Over the phone, Kathy Sun describes how she's been waiting in Canada's immigration queue for 4½ years, since fall of 2007.

The senior IT manager lives in Shanghai with her husband, who is a manager at an engineering firm, and their young child.

Sun says she and her husband want to emigrate so they can raise their son in an open society and give him a better education.

And she has another, even more personal reason: she wants a second child, which under Chinese law is forbidden.

"There's no way we can get another one [in China]," she says of their plight. "For me, I love kids. I want to have more."

Sun says time is running out — she's 40, and now her application to come to Canada is about to be thrown out, and her fee refunded.

Immigration Minister Jason Kenney says a years-old immigration backlog must be cleared so the system can work fairly and efficiently. (Adrian Wyld/Canadian Press)

Under the budget implementation bill, Canada has created the legal ability for the government to delete the applications of some 280,000 people who asked to come here as federal skilled workers before 2008.

The government has promised to return application fees and applicants can re-apply under the new rules. But their files will not be fast-tracked, no matter how long they have already waited.

Appearing at a Senate committee hearing Thursday on Bill C-38, the omnibus budget implementation bill, Citizenship and Immigration Minister Jason Kenney defended his government's plan.

"It's simply not in Canada's interests to deal with a large backlog of cases that's seven or eight years old. And nor is it in the interests of immigrants."

Kenney said trying to process the outstanding files from pre-2008 would take until 2017-18 and would slow down attempts to get the system working faster.

"I regret for those who have been sitting patiently in the backlog that their applications are going to come back to them with their fees," he told the committee.

"But we are doing ourselves significant reputational damage around the world by telling people they can make an application to Canada and we would get back in touch with them in seven or eight years."

Signs of hope dashed

Until the budget came down, Sun had reason to hope that her application would soon be approved.

In 2009, Canadian visa officers signalled they had opened her file and they asked her family to submit the necessary mountain of documents.

'We spent a lot of time and effort on that and suddenly they tell us, you'll be wiped out. I can't express how I feel. It's like, the end of the world.'—Kathy Sun

Sun and her husband set to work gathering certificates of identity, police checks, English test results — and sent them in. They even had their employers fill out immigration certificates, something which Sun says damaged her husband's prospects for advancement within his company.

Then the budget tabled on March 29 put an end to her hopes.

"We spent a lot of time and effort on that and suddenly they tell us, you'll be wiped out," she says. "I can't express how I feel. It's like, the end of the world."

According to Bill C-38, people such as Sun, whose applications were submitted before Feb. 27, 2008, and for whom an immigration officer had not made a decision based on the selection criteria by March 29, will see their applications deleted. Even though Sun's file was being processed, a final decision had not yet been made.

Sun had told Canadian visa officers more than once over the years that her time to have a second child is running out. She says she repeatedly asked whether she should be applying under a different immigration stream, or under the new rules for foreign skilled workers that took effect in 2008.

"We were even telling them this was impacting our family plan for the second child. We did it several times. All the answer we got from the visa officer was that our application is still in queue to be reviewed and they asked us to wait patiently for our turn to come."

In August of last year, Sun received a letter of reassurance from Canada's immigration officials.

"Even in that letter it states very clearly, please stay assured that your application is not forgotten. You will be processed."

Class action suit launched

Sun says if she had known two years ago what she knows now, she would have reapplied under the new stream, or applied to another country like Australia or New Zealand.

Instead, she has decided to take the Canadian government to court.

She's joined by about 40 other litigants from China and Hong Kong in the suit. It will try to stop the government from implementing the provision to delete the backlog.

Lorne Waldman, an immigration lawyer based in Toronto, says a promise was broken to applicants who followed all the necessary steps to come to Canada.

"They've been waiting in the queue for years and years, and now Jason Kenney is saying, 'Yeah we told you to wait in the queue, we told you that was the right way, but that's too bad. Now we've changed our mind and there's no longer going to be a queue for you.'

"I think that's immoral," Waldman said.

As for Sun, she says she still has faith that Canada will change its mind — that her legal appeal will win.

"I'm very sure that we will eventually get the justice — it's on our side," she says. "We didn't do anything wrong. We did everything according to the policy — the process. We didn't do anything wrong. So we are not the ones to be punished."