Lawyers Representing Canadian Immigration Applicants Argue Unlawful Discrimination in Backlog Wipe-Out

Lawyers for 1,000 people affected by the Federal Skilled Worker application backlog wipe-out are optimistic about the comments made by presiding judge Justice Rennie at the hearing this week

Lawyers representing a group of 1,000 immigration hopefuls whose applications for permanent residence under the Federal Skilled Worker Program (FSWP) were closed by the federal government under Bill C-38 argued in a hearing this week that the government’s decision violated the Charter of Rights and should be struck down.

The 1,000 litigants are among those affected by Bill C-38, which wiped out the 97,715 cases (according to the Toronto Star) in the backlog of FSWP applications submitted before February 27th 2008.

The lawyers for the litigants argued that since applicants were only permitted to apply at one visa office, which was determined by their country of residence, and the government set quota for visa offices assigned to applicants in Asian and African countries was not sufficient to process the applications they received as quickly as applications sent to visa offices assigned to applicants from Western Europe and the Americas, the law discriminated against Asian and African applicants, which put it in violation of the Charter of Rights and made it unlawful.

The litigants’ lawyers pointed out that 81.4 percent of the applications that were in the backlog were from Asia and Africa.

Head attorney for the litigants in the case, Tim Leahy, expressed optimism at the comments of presiding judge, Justice Donald Rennie, to lawyers representing the government, in which he criticized as “paternalistic” toward the immigrants their argument that the application backlog wipe-out would be better for immigrants since it would allow for a just-in-time immigration rules that created shorter processing times for them.

He called on them to keep their arguments confined to why the backlog wipe-out benefits Canada.

Also criticizing the government’s argument that the application wipe-out was necessary to put in place a just-in-time immigration selection process, Justice Rennie asked why the backlog and just-in-time approach were “mutually exclusive” and couldn’t exist simultaneously.

The litigants have so far failed in their attempts to force the government to reverse the backlog wipe-out through the courts, and even if they succeed in the current case, will likely face an appeal from the government.

Canadian Immigration Provides Instructions for FSW Backlog Wipe-out Fee Refund

The return of application fees to those affected by the wipe-out of the pre-February 27 2008 FSW backlog will be processed by CIC

Citizenship and Immigration Canada (CIC) issued a notice on Friday instructing those affected by the wipe-out of the pre-February 27, 2008 Federal Skilled Worker (FSW) application backlog to submit a form informing the department of their current address in order to have their fee return processed.

Approximately 280,000 FSW applications filed before the Feb. 27th 2008 were wiped out with the enactment of Bill C-38 on June 29, 2012, with the federal government committing to return the application fees paid by those affected.

Friday’s notice asks those whose FSW applications were likely affected by the new law to submit a completed RETURN OF PROCESSING FEE, RIGHT OF PERMANENT RESIDENCE FEE OR RIGHT OF LANDING FEE form to CIC.

The first contingent of applicants to have their fees returned will be those who had contacted CIC to enquire about their fee refund before Friday’s notice. The next group to be refunded will be those who update CIC about their current address by submitting the above linked form. Finally, CIC will contact the remaining applicants and attempt to verify their current mailing address before processing their fee return.

Federal Government Loses Legal Battle over 900 Cases in Application Backlog

A lawsuit by 900 individuals who sued the federal government for the delay in the processing of their application for permanent residence in Canada succeeded today, as a federal court ruled in their favour. The ruling puts into question the entire wipe-out of the 280,000 Federal Skilled Worker Program backlog.

The federal government’s efforts to wipe out the 280,000 Federal Skilled Worker Program application backlog through legislation had a major setback today, as a court ruled that the government must process the applications of 900 people who sued the federal government for the delay in the processing of their application, and whose applications were among the 280,000 closed as part of the wipe-out.

The presiding judge, Justice Donald Rennie, wrote in his decision that the federal government has the legal right to refuse to process an application, but that once it has begun processing an application, it is obligated to finalize the processing in a timely manner. This opens the door for the remaining 280,000 individuals affected by the legislated wipeout of their application to sue to have their application re-opened and processed.

Justice Rennie also rejected the federal government’s request for appeal, and ordered that the federal government finalize the application of the lead litigant, an IT project manager in China, by October 14th.


Update on Canadian Government’s slashing of pre-2008 Skilled Worker applications

As posted earlier, the Conservative government proposed to eliminate 280,000 applications filed before February 27th 2008 for the Federal Skilled Worker Program.

Here are some questions that you may have:

Will I be affected by the proposed changes?

Under the proposed changes, CIC would close Federal Skilled Worker applicants’ files if they:

  • applied before February 27, 2008, and
  • have not had a decision made by an immigration officer based on selection criteria by March 29, 2012.

It is expect this would affect around 280,000 people including dependents.

Who will not be affected by the proposed changes?

Any application that has received a file number after February 27, 2008 so you will not be affected if your file number was received after this date.

What is being done to respond to this decision by the Canadian government?

Immigration consultants are looking into a joint effort to stop the finalization of the proposal. It is expected that the changes will happen as the Conservative party holds a majority and it will receive enough votes to pass through.

There is a good chance that this issue will drag on and head to the Supreme Court. However, once or if it gets to that, it will not be for another few years as complaints against the government must go through many legal hurdles.

What options do I have if my application is removed from the backlog?

This depends on the individual applicant. Unfortunately, some applicants will not have any options under the new rules and regulations. There are currently over 60 immigration programs under both federal and provincial governments.

Will I receive a refund?

Your government application fees will be refunded. The professional fees will be treated as per the particular agreement each client has with their consulting firm.

Canadian Government to Legislate Elimination of 280,000 Immigration Applications

The Conservative government proposed to eliminate 280,000 applications filed before February 27th 2008 for the Federal Skilled Worker Program in last Thursday’s federal budget.

If this proposal is approved, as it is expected to be, the hundreds of thousands of applicants affected will either have to give up on their hopes of immigrating to Canada or re-apply under new immigration rules.

For the last few years, the Canadian Citizenship and Immigration Ministry has been searching for a way to solve the massive backlog in the Federal Skilled Worker Program. Immigration Minister Jason Kenney has previously suggested that Canada adopt New Zealand’s approach and legislate an end to the backlog. With Thursday’s announcment, that option has officially been selected.

The wipe-out will cost the Canadian government $130 million in the refunding of application fees paid by those who applied under the Federal Skilled Worker Program before the February 27th 2008 cut-off date and whose files are being closed.

Mr. Kenney says the new immigration system that will replace the current one after the backlog has been eliminated will create a pool of immigration applicants and allow provinces to nominate those who they believe are most promising to have their application fast-tracked.

The Canadian government believes this will create an immigration system that is more responsive to the needs of Canadian employers and select applicants that have skills more greatly demanded by the Canadian economy.

Canadian Immigration Minister to announce new Entrepreneur Program

Canadian Citizen and Immigration Minister Jason Kenney says that the Canadian government will introduce its new immigrant entrepreneur program soon, which will target “high value innovators” and not be saddled with the problems of the previous entrepreneur program.

In an interview with the Globe and Mail, Mr. Kenney said that the previous program, that was suspended in July of last year, was overly burdensome and ineffective.

The Globe and Mail article notes that the previous program had a backlog of 10,000 applications, with a processing rate of only 1,000-1,500 per year, meaning a best-case clearing time of eight years.

The Immigration Minister said that what will be done with the backlog has not been determined. One option the Canadian government is considering is allowing provinces to cherry pick applicants from the backlog that they believe are the most promising, so that applicant processing time is determined more by the needs of provinces for applicants’ skills and experience, rather than the criteria used in the old program of time spent in the queue.

Mr. Kenney said that New Zealand has used a similar process since 2003, when it faced a large backlog like the one Canada currently faces. A pilot program allowing provinces to mine the backlog has already started, he said.