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.