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Mandamus: Federal Court update

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Waiting for IRCC Officers to make decisions is frustrating for all our clients. Over the years, IRCC has made many efforts to communicate with applicants to publish average processing times and to updated information on the website. These have been positive changes and we applaud IRCC for these improvements. However, the current level of frustration is high. Some applications still take much longer than average processing times and, for those clients, they have limited solutions to get a final decision.

We have published many articles on how to speed up the application process. We have various types of remedies for clients who are frustrated with processing by the IRCC Officer. We have published the legal test for a writ of mandamus to Federal Court to make sure our clients understand the process.

Information is incredibly powerful to making the best decision. At CIL, we work to ensure our clients understand every step and they can see all the work we are doing on their behalf. We believe we have the best communication and our clients are never wondering what needs to be done.

Many immigration professionals, including agents and consultants, do not community well with their clients. They do not return calls. They do not explain all the procedures. Clients are frustrated with IRCC and then they can feel more frustration with their agents. If you are in this situation, you can sue your agent or immigration consultant.

Update from Federal Court: Mandamus

Congratulations to my former Queen’s Law professor and mentor Barbara Jackman for this recent Federal Court decision. In Saravanabavanathan v. Canada (Citizenship and Immigration) 2024 FC 564, Justice Grant explained:

[15] Mandamus is a discretionary, equitable remedy. The parties agree on the legal test for mandamus, as set out in Apotex Inc. v. Canada (Attorney General), 1993 CanLII 3004 (FCA), [1994] 1 F.C. 742 (C.A.), at pages 766–769, aff’d [1994] 3 S.C.R. 1100 [Apotex]. To obtain an order of mandamus, the Applicant bears the onus of satisfying the following conditions:

  1. There must be a public legal duty to act.
  2. The duty must be owed to the applicant.
  3. There is a clear right to performance of that duty — it this criterion that involves an assessment of the issue of unreasonable delay.
  4. Where the duty sought to be enforced is discretionary(which is not the case here) certain additional principles apply.
  5. No other adequate remedy is available to the applicant.
  6. The order sought will be of some practical value or effect.
  7. There is no equitable bar to the relief sought.
  8. On a “balance of convenience” an order in the nature of mandamus should (or should not) issue.

[16] This test has been applied in the immigration context on many occasions: see for example Conille v Canada (Minister of Citizenship and Immigration), 1998 CanLII 9097 (FC), [1999] 2 F.C. 33 (T.D.) [Conille]; Almuhtadi; Bidgoly v Canada (Citizenship and Immigration), 2022 FC 283 [Bidgoly].

[…]

28] It is clear that the first two factors for determining a right to performance have been met: the Applicants have fulfilled all of the conditions for a decision to be made and they have requested (multiple times, in fact) that a decision be made. The only question, then, is whether the delay is reasonable, per the factors set out in Conille.

This leads to the key part of this decision. The Court must consider the particular circumstances of the applicant to determine whether the delay is “reasonable”.

[37] In this case, the Applicants’ application was submitted over a year before the pandemic began, and it has now been many months, if not years, since most government agencies resumed to a fully operational state. As the Respondent acknowledges, the global pandemic cannot explain the entirety of the delay.

[38] Taking into account the above, together with the preponderance of recent, applicable jurisprudence, I find that the Applicants have established a prima facie situation of unreasonable delay, one that they are not responsible for, and that the Respondents have been unable to adequately justify.

For the reasons above, the applicants won this ALJR. Congratulations to Barb and her team. Congratulations to the applicants. Hopefully they will be reunited in Canada soon.

 

 

Cost(s) of Slow Processing (Repost)

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Alastair Clarke published this post on Slaw.ca, where he is a contributor to that website. We are cross-posting this information on the CIL website.

Legal procedures are often slow. “The slow wheels of justice,” as the saying goes. Within the immigration context, backlogs, delays, and lengthy processing take this saying to another level. Applications may take years. Families suffer from lengthy periods of separation while Visa Offices (some more than others) provide scant insight into their workflow. During the recent “modernization”, IRCC has added many online tools to address this perennial issue, including status bars, portals, and various means of communication. In certain situations, Officers are supposed to adhere to standard processing times.

For clients (or counsel) who reach a high level of frustration, the remedies to encourage or compel IRCC to make a decision on their applications are limited. One remedy is to request an Order of mandamus by the Federal Court of Canada. The legal test to obtain a positive decision from a Federal Court judge is onerous, as it is designed to be. The Court’s role to oversee decisions by IRCC Officers is extremely narrow. In those cases, however, where IRCC Officers have crossed that line and the legal test for the mandamus is met, the Court may also punish IRCC and award costs. It seems, the Court increasingly has an appetite to award costs, thus sending a clear message to the federal government and its Officers.

High Cost of Litigation

Access to justice has plagued the legal profession. You may have read other pieces in this space that refer to potential solutions, including contingency fee billing. In immigration, IRCC made the decision many years ago to allow Immigration Consultants to represent applicants, thus opening up the market beyond members of the Bar. Many consultants, however, use shady business practices, and their clients often become victims. These victims, or the ones who have learned a lesson, will then find counsel to fix the mess. In some cases, the result is that counsel has no other remedy than to go to Federal Court to request judicial review.

Even among immigration lawyers, the vast majority of counsel avoid Federal Court litigation. The high amount of work involved, the strict and draconian Rules of the Court and the high level of stress involved in these files leads to many counsel to avoid taking on these matters. For those of us who fight these battles, we are acutely aware of the gross imbalance between the resources of private counsel and the resources at the Department of Justice (DOJ).

In my office, we will often have a staff meeting before we agree to do this work. Everyone on staff needs to be prepared if we have to do an emergency Stay Motion or if CBSA issues a Deportation Order on a Friday afternoon while we are winding down. Many immigration boutiques simply do not have the extra bandwidth to take on this work.

Backlogs and Staffing

Another root cause of the long processing times is the significant backlogs across the system. Canada is often reported as a top destination country in the world. The number of candidates in the various queues, including the Express Entry pool, the provincial nominee pools, or the stacks of applications at Visa Offices has created a Sisyphean workload at IRCC.

Recently, here in Manitoba, the MPNP program announced that staff shortages in 2023 led to more than 2,000 nomination certificates not being issued to applicants – completely wasted. 2023 was highly unusual for the MPNP program. As I stated to CBC News, in previous years, the MPNP program has used all its certificates and, in fact, the high demand in Manitoba has led the MPNP to take and use certificates from other provinces.

I remember back in 2016, the newly appointed Premier of Manitoba promised to eliminate the backlog. Clearly, he did not have an advisor who was well-informed prior to making this promise.

As reported by the Immigration Advisory Council (I gave testimony to the IAC), the MPNP was issued 6,275 certificates in 2021 (100% allocated) and 6,367 in 2022 (100% allocated). The 9500 certificates issued in 2023 was a huge increase by IRCC to the MPNP program and, therefore, the fact that staff at MPNP were not able to process the high number is not surprising. I would argue that the fact that MPNP processed 7,348 in 2023 – almost 1,000 more applications than the previous year is a testament to good management.

Remedies

The question becomes: when an application is dragging on and on, what remedies are available to counsel? Good immigration lawyers, in my view, are very reluctant to start mandamus proceedings. Even without these applications, the Court is dealing with a flood of Applications for Leave and Judicial Review (ALJR) based on the high numbers of refusals by Officers or by IRB Members. In contrast to situations that may lead to an Order of mandamus, these refusals are matters that have been decided. The individuals likely have no other remedy. The Mandamus process adds further work for the Court to urge Officers to simply do their job.

From the above, you can probably imagine that I am reluctant to proceed with Mandamus proceedings. Typically, I try to talk potential clients out of taking this action. If they insist and I can see merit, then we will help.

In my practice, typically our Mandamus files do not end up at a hearing. In 2023, every one of our Mandamus files was resolved with the assistance of the Department of Justice (DOJ), communicating the situation with their client (IRCC), and that was sufficient to get our client’s application back on track. This is likely the result of sympathetic and reasonable lawyers in the Prairie Regional Office of the DOJ as much as the facts.

Of course, many Mandamus proceedings end up before a Federal Court judge. They are then forced to spend the time to review the application history, review the 8-step legal test set out in Apotex and make a decision re the duty to perform.

Costs & Special Reasons

Increasingly, I believe Federal Court justices are expressing their frustration with the Officers at IRCC by increasing the number of decisions where costs are ordered against the government. I remember when I started in 2008, getting costs was extremely rare. Keep in mind, this is purely my anecdotal experience. If any readers are aware of any data regarding the frequency of Federal Court justices awarding costs, please add this information in the comments below.

In 2021, Steven Meurrens provided a summary of some past cases at the Court where costs were awarded or where a judge considered a costs award. For me, the He decision in 2021 from Justice Sadrehashemi stands out. This was an ALJR of a woman who was applying to work as a caregiver for two (2) children in Vancouver. The Service Canada Officer had already granted the LMIA (this is often the most difficult step) and when the matter was before the IRCC Officer, the case dragged on for more than three (3) years. To be clear, one of the children who needed care aged from 10 to 13 while they were waiting for a decision. Costs of $1,500 were awarded against IRCC.

Recently, Justice Heneghan in the Al-Mashtouli decision also awarded $3,500 to the Applicants as well as an Order of mandamus. In this decision from 2024, the Court ordered IRCC to process the application within 120 days of the judgment. Kudos to Barb Jackman (my former immigration law professor from Queen’s) and all the work done by her office to get this judgment!

Trends for 2024

In 2023, IRCC Minister Marc Miller inherited a mess and he has been making difficult decisions. From my point of view, much more work is necessary to add clarity and consistency within the immigration system. Previous efforts to publish “average” processing times and “progress bars” online have added even more confusion. I have spoken with applicants whose “progress bar” shows 99% complete for months and they have no idea what they need to do to finalize the application. I expect IRCC will be making more difficult decisions to address the high level of frustration.

On the Court side, I also expect more orders for costs to Applicants. I believe judges at the Court are also frustrated with the high level of immigration files and this is one way for them to send a message to IRCC.

 

 

 

 

 

Reflecting on 2023

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Once again, we celebrate all the work from 2023 and reflect on how the world may change in the year to come. At CIL, we are incredibly thankful and blessed for so many successes and positive decisions. We love helping our clients and we recognize they have put their lives in our hands. We take our work very seriously as we know the importance of each and every file. Before we get to the predictions for 2024, here are a few milestones from 2023:

 

 

 

 

We bid farewell to 2023. Again, thank you to all our clients who put their trust in our services!

Congratulations to Justice Mary Moreau

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CIL was pleased to see the announcement that Justice Mary Moreau, a francophone judge in Alberta, will be appointed to the Supreme Court of Canada. This announcement underscores the importance of having a Supreme Court that reflects the many different groups of people across Canada. We need voices on the highest court from judges of a variety of backgrounds, from various provinces. As a francophone judge from the prairies, we hope Justice Moreau will bring a unique approach to the cases that make their way to the SCC.

CIL was particularly impressed with Justice Moreau’s interview with the Canadian Bar Association (CBA). Here is an excerpt of her answers.

I think the most useful tools I developed as a lawyer then as a judge came from my experience as an undergrad philosophy student. I was always curious (annoyingly so according to reliable sources).

[…]

Counsel and judges are being called on more and more to take on a resolution-focused role. They should be taking advantage of any early opportunity to peel away the layers preventing resolution of the dispute, get to the heart of the issue, and present creative ways of moving forward. I think restorative justice principles based on restoring the well-being of those whose lives have been affected by wrongdoing or injustice are a useful staging ground for reconciliation in all types of disputes.

The full interview can be found on the CBA website.

As you may be aware from Alastair Clarke’s biography online, he also completed an undergrad philosophy degree. He concurs with Justice Moreau that an education in philosophy may assist with legal analysis. Philosophy is key to understanding important legal concepts and examining fact patterns from different perspectives.

In addition, Alastair Clarke is also a strong advocate for restorative justice principles and creative solutions. During his testimony to Parliament, he encouraged the Government of Canada to take a collaborative approach to decision-making. Here is an excerpt of Mr Clarke’s testimony to the Members of Parliament:

My last point relates to a collaborative approach.

Part of the reason I was attracted to this area of law is that it is generally non-confrontational. To deal with minor issues, I can easily call a CMO at the IRB, a Superintendent at a POE, an inland enforcement officer or a lawyer at the DOJ. Dealing with IRCC, by contrast, is a constant struggle. When an IRCC Officer makes a clear mistake, there is no easy mechanism to get it fixed. In my view, the Request for Reconsideration system is broken and MPs are far too often put in the difficult position to act intermediaries. Bad decisions by Visa Officers are often easy to appeal to Federal Court but judicial reviews expend a huge amount of time and resources for both the applicants and the government.

Based on our review, it does not appear that Justice Moreau has significant experience dealing with immigration issues. Hopefully she will find some time to learn this area of law. We wish her and the SCC all the best.

Success: SP appeal

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Every year, many international students submit applications to come to Canada to study. For +16 years, we have been helping students from around the world navigate the system. It is not controversial to note students from certain countries have an easier path. Today, we received a final decision on a Study Permit saga for a client from Bangladesh. This was another challenging case expertly handled by the team at CIL. After working with the family for more than 2 years, our client is (finally!) coming to start his studies in Canada. Congratulations!

Here is a summary of our client’s immigration history:

  • 2021 – client submitted Study Permit on his own
  • 2021 – IRCC refused the application
  • 2022 – client retained CIL to prepare and submit 2nd application (SP #2)
  • 2022 – Team at CIL worked with client to submit application to Visa Office in Singapore
  • 2022 – IRCC refused SP #2 application
  • 2022 – client retained CIL for Federal Court appeal re the decision to refuse SP #2
  • 2022 – Team at CIL prepared ALJR and negotiated with DOJ
  • 2022 – ALJR Settled based on Applicant’s Record
  • 2023 – SP #2 referred back to Visa Office in Singapore
  • 2023 – SP #2 approved!

This was a long process that required significant work. It has been a pleasure to work with this family and we will continue to work with this student to support him with his immigration matters.

It is not a secret that Visa Offices abroad have a different agenda from policies in Ottawa. While politicians in Ottawa publicly recruit international students are encourage them to apply for PR status, Visa Officers refuse Study Permit applications if the Officer believes the student has the intention to stay in Canada. This is a known contradiction. Frustration among students is well documented.

Another Federal Court victory for the Team at CIL. 

 

STCA Amendments

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CIL has been providing commentary of issues to the Safe Third Country Agreement (STCA) for many years. We have assisted many refugee claimants who have crossed from the USA into Canada at POEs (Ports of Entry) and we have also represented many individuals who have crossed between POEs, at “irregular” entry points. The most famous irregular point of entry has become Roxham Road in Quebec. Many of our clients have traveled through the USA to Roxham Road and then, once they have started their refugee claim, they travel from Quebec to Manitoba. It is a long and arduous journey.

For background, Alastair Clarke has given numerous interviews and presentations on the STCA and the issues with this agreement. In 2017, he spoke at the Strangers in New Homelands Conference in Winnipeg and the panel, including lawyers and academics, provided insight on these issues.  In 2018, he provided insight to CBC News on irregular entries and how individuals with “anchor relatives” can make their claim directly at the POE. He has also given presentations to various groups, including at the CBA National Immigration conference in 2017.

On Friday, the Trudeau government announced amendments to the STCA. Those changes became effective the next day, causing havoc and uncertainty for individuals who are trying to find safety in Canada.

In my legal opinion, the changes to the STCA are problematic for 4 main reasons:

  1. It is highly probable that refugee claimants will go into hiding during the 14 day period so they can make their claim from within Canada. Most of these individuals have already spent significant time in their journey to Canada. That extra 14-day period will not be a significant deterrent.
  2. The communities along the border are going to be our new front line. Refugee claimants will now to be forced to cross at irregular entry points which are far more dangerous than at Roxham Road. Border communities are going to have to make decisions on whether to provide protection or sanctuary for these individuals.
  3. These amendments are going to give Canadian Officers more work. If the claimant is captured during the 14-day period, the Officer may then facilitate removal back to the USA. How are the Officers going to establish the claimant is within that 14-day period? If they are crossing irregularly, they will not have documents showing the date they entered Canada. This 14-day period is extremely problematic for many reasons.
  4. The government has completely ignored the section 7 & section 15 Charter arguments. The Federal Court ruled the STCA was in violation of the Charter. That decision was overturned by the FCA. Oral arguments to the Supreme Court of Canada were heard in Oct 2022 and we are waiting for a final decision. These recent amendments completely ignore the constitutional issues raised by the Court. It is not clear why the government could not have waited for the SCC to render its final decision before these amendments. I have published my comments on the Charter issues.

Recently, Alastair Clarke was invited to Toronto to give a presentation on border issues at TMU. This presentation was, of course, prior to the recent announcement and, therefore, we did not cover the points outlined above.

If you have questions related to the SCTA, please contact our office. We will provide as much guidance as possible.

CBC NEWS: Indian died at border re fake documents

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One year ago, an Indian family died at the border, trying to cross from Canada into the USA. This family had come to Canada on a Study Permit, after using an agent in India. Over the past year, law enforcement in Canada, the USA and India have been investigating this tragic event that led to the death of 2 adults and 2 children. They have discovered the Study Permit was obtained by submitting fake documents to the Canadian Visa Office in India.

CBC News has reported many details on these preventable deaths. As reported by CBC News:

The man’s plan to cross into the U.S. illegally was set in motion a year earlier, when someone who frequented his father’s shop in India offered to help send his son to a foreign country, according to the police report, which was filed following a preliminary investigation.

The man’s father told police he agreed to pay that person 6.5 million Indian rupees — over $106,000 Cdn at current exchange rates — in return for getting his son a Canadian study permit and helping him get into the U.S., the report says.

Alastair Clarke was interviewed as part of the investigation and he provided insight on these issues. Clarke Immigration Law has assisted many people navigate the immigration system with similar circumstance.

As noted in the article, if an application for a Study Permit includes fraudulent or fake documents that were included as supporting documents, the Applicant is 100% liable/ responsible, in almost every case. This is a serious problem, and unfortunately, it is quite common in many jurisdictions. The Government of Canada issued a blanket warning in 2019, for example, based on the serious nature of this problem.

At CIL, we have dealt with many cases where the Applicant’s shady agent submitted fake documents, without their knowledge. This can lead to the Applicant, as well as all the Applicant’s family members, being inadmissible to Canada per A40 (misrepresentation). As stated by IRPA:

Misrepresentation

  • 40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation

    • (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

    • […]

The key language above is “directly or indirectly”. The “indirectly” part of the section refers to all documents that were submitted by an agent, by a family member, by a lawyer, by any other type of representative or by any volunteer. A40 is extremely broad, by definition and when Parliament drafted the language of this section, they intended A40 to capture any and all types of behaviour that may be fraudulent.

CIL successful represented an Applicant who faced A40 misrepresentation. Our legal arguments were accepted by Federal Court Justice Ahmed, based on the facts of that case:

[14]  The Applicant [CLARKE IMMIGRATION LAW] points out that section 40 of the IRPA does not apply to misrepresentations made honestly by an applicant who reasonably believes they did not withhold material information (Medel v Canada (Minister of Employment and Immigration), [1990] 2 FC 345, Baro v Canada (Citizenship and Immigration), 2007 FC 1299 at para 15, and Goudarzi v Canada (Citizenship and Immigration), 2012 FC 425 at para 33). The Applicant submits that his response to the procedural fairness letter provided evidence that this exception applies to his alleged misrepresentation; he explained that the knowledge of the potential fraud was beyond his control and in his view he reasonably and honestly believed that he was not misrepresenting any material facts. Despite his response to the procedural fairness letter, the Applicant submits the Manager failed to consider whether any alleged misrepresentation was honestly and reasonably made.

The Court accepted that our client was not inadmissible even though his agent submitted fake IELTS results.

This is a very serious issue and there are many applicants who are victims of shady agents/ consultants. Please contact our office if you a facing this type of situation.

Success: FC Judgment re Sponsorship

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We are thrilled to report that our ALJR to Federal Court was granted. This is a file that we have been working on for quite a long time. The Applicant is a citizen of Somalia who applied for Permanent Resident status through the Private Sponsorship of Refugees (PSR) program. The application was processed through the Canadian Visa Office (High Commission of Canada) in Nairobi, Kenya. The Visa Officer interviewed the applicant and refused the application based on a negative credibility determination.

Sponsor Refugees

Here is an excerpt from the decision:

[46] The Officer made four negative credibility findings against the Applicant. I have found three of those four to be unreasonable, as they are not supported by the underlying record. As a result, the Decision is flawed. The one negative credibility finding that is not clearly contradicted is not sufficient, on its own, to support the outcome.

[47] I find the Applicant has met his burden to show the Decision is unreasonable. The shortcomings in the Decision are more than merely superficial or peripheral to the merits of the decision. They are more than a minor misstep. They are the reasons provided by the Officer for denying the Applicant’s application based on his lack of credibility. By not considering the signed Schedule 2, the reasons for the Officer’s credibility findings are not justified, transparent or intelligible.

[48]  For the foregoing reasons, I find the Decision is unreasonable.

For a detailed background and facts, please refer to the decision (2022 FC 1560), which will be published on the Federal Court website. Justice Elliott has provided a lengthy 13 page decision that clearly outlines the issues with the Visa Officer’s decision and the errors made in Nairobi. Clearly, Justice Elliott carefully reviewed +400 pages of evidence and arguments in support of this ALJR.

We want to acknowledge the work done by Mr Odaro Omomuwa. He started this ALJR and he had been working with the applicant prior to CIL being retained. His work was done very well and we relied on his work to win this case. If he had not put in that underlying work to pave the way, we may not have been able to successfully make the arguments to the Court.

I have recently published my issues with the Federal Court process. That post has received significant attention from lawyers across Canada, and outside Canada. Many colleagues and friends have agreed with the points. Going to FC can be frustrating and extremely labour-intensive. Based on the amount of work involved in this type of case, lawyers often charge exorbitant fees for this service. We have tried to keep our fees manageable for clients, in particular when the Officer has clearly made an unreasonable decision or there is a clear violation of procedural fairness.

We do our best to support all applicants with their Canadian immigration applications, including refugees overseas who are going through the PSR process. We have worked with Professor Shauna Labman here in Winnipeg, an expert in this area with professional experience dealing face-to-face with refugees abroad. These files are particularly challenging, with long processing times. In addition, the Canadian Visa Office (High Commission of Canada) in Nairobi, Kenya is notoriously difficult to deal with.

Immigration Litigation: Current Issues, Part 1

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There is a small army of immigration lawyers who battle in the Federal Court of Canada. Most practitioners have the sense to dedicate themselves to the solicitor side of this practice. In Part 1, I will focus on issues with the current system based on my experiences with the Court over the past 10+ years. I will be posting subsequent parts based on recent (creative) approaches that address, or get around, some of the issues below. This is not a review of substantive law or decisions from the Court. This critique is focused on the system as a whole.

TL;DR

  • There is a gross imbalance between the resources of private counsel and those of the DOJ;
  • The system is designed to weed out low-income litigants;
  • Federal Court Rules are designed to impede access to justice;
  • Immigration matters are subject to additional, unfair procedures that are not applied to any other matters at the Court;
  • The DOJ has the power to “settle” matters before they get to Court, limiting public scrutiny of errors made by Officers and potential precedents; and,
  • The remedies at the Court are limited causing the potential for a revolving door of decisions from the government to the Court and back to the government, ultimately ending when the client gets a positive result or runs out of funding.

During the summer of 2005, I first whetted my appetite for immigration litigation. I was a summer student at the Centre for Spanish Speaking Peoples legal aid clinic. The Legal Director had agreed to assist a client with an Application for Leave and Judicial Review (ALJR) to Federal Court. I did my best to assist but mainly I just tried to stay out of her way. I knew almost nothing about judicial reviews at that time. I remember the long hours she would spend in her office doing research and drafting legal submissions. I remember the stress and frustration. I remember the general feeling of helplessness in the clinic.

As the case proceeded, I recall the Legal Director was often frazzled as she navigated the strict Rules of the Court (more on this later) and strict FC deadlines. The entire clinic mobilized to assist this client (a single mother from Mexico) in the name of Justice. I do not even remember if we won. Perhaps the Court rendered their decision after I was comfortably back in law school. My takeaway from that experience was the monumental amount of work involved and the gross imbalance between our resources and those of the Department of Justice.

I did not know, at that time, this experience with immigration litigation is not unusual. Even experienced counsel deal with high levels of stress and frustration navigating Federal Court procedures. It is not an understatement that the cards are stacked in favour of the government – in immigration matters as well as other areas of law. In our field, however, I would argue the Court system is even more stacked against practitioners. For immigration litigation, there are so many ways the case can be refused while so few ways to actually get justice for our clients – often refugee claimants or individuals with little to no financial means. In addition, the typical best-case decision from the Court is an order that the matter is sent back to be decided by a different Officer.

My immigration litigation frustration continued as an articling student. A notable case: an Indian teacher had retained the firm to judicially review a refusal of her federal skilled worker (FSW) application. This was her 3rd ALJR. Yes, you read that correctly. She had applied, been refused, gone to FC, “won” at FC, the matter was returned to the Visa Officer, refused again, gone to FC (again), “won” (again) at FC, returned to Visa Office (again), refused for a 3rd time, and retained the firm yet again. Clearly, her family had deep pockets. In retrospect, I cannot imagine the significant sacrifices made by this teacher and her family to have the patience and resolve to jump through all the aforementioned immigration hoops. I suppose they believed it was worth the financial and emotional costs.

Unlike other Federal Court matters, immigration cases must be successful at two (2) stages as there are different rules designed only for immigration matters. Let me repeat that. Every other case that proceeds through the Court only needs to be approved by one (1) judge. Immigration cases must first be approved by one (1) judge (the Leave stage) and then, if that judge grants leave, then the case can proceed to a 2nd judge for the final decision. I was describing this system to a criminal defence lawyer and she replied, “why don’t you just appeal the decision of the first judge?” No, not possible. The system does not allow appeals of the Leave decision and that decision is simply a couple lines from a Judge with no reasons. I know. How is this not a gross violation of procedural fairness?

It gets worse. In many types of litigation (I have been told), counsel may receive multiple packages of disclosure and the procedures of due diligence may involve a back and forth between the sides. In immigration, not so. In cases where the Officer has not provided reasons, the Court will provide Rule 9 disclosure. This disclosure may be redacted, it may omit parts of the government’s file and it may not include significant documents from the Officer. Once Rule 9 has been received, however, counsel has a very short time to produce and perfect the Record. In certain situations, counsel may examine the Officer or request more time to obtain additional disclosure. These situations, however, are quite rare and in the vast majority of cases, counsel must produce their Record based on the Rule 9 disclosure, in whatever form it is disclosed.

I believe we are all well acquainted with the imbalance between criminal defence lawyers and the Crown. Anyone who has seen Law & Order may have an understanding of the discrepancy between the resources of the police & prosecutors compared with defence counsel. Principles of Disclosure from the Public Prosecution Service of Canada outline various procedures and, of course, immigration is not mentioned. In immigration litigation, I would argue that discrepancy is even more imbalanced. Yes, even worse. Two examples: 1. From my understanding, criminal defence lawyers have robust rules of evidence that give them significant access (relative to immigration) to the Crown’s file. In immigration, not so. 2. Defence lawyers may easily (ok – I have no idea if it is “easy”) question the arresting police officer and they may scrutinize their actions prior to arrest in detail. In immigration, not so. In fact, Visa Officers are strongly protected by the system. The DOJ may go to great efforts to limit access to Officers and to limit scrutiny of their decisions, no matter how egregious.

As noted above, most immigration and refugee lawyers do not go to Court. When I started my own firm, this was a decision we had to make. Financially, it does not make sense. I remember at the end of our first judicial review, I did a calculation on my hourly wage. It was slightly above minimum wage. Side note: as a sole practitioner, I did almost all the admin work myself. Since then, when I am considering a new FC matter, I have learned to accept that I will sacrifice at least one night’s sleep and one weekend. That is now simply in the back of my mind while I am drafting the contract for this grueling work. The strict Rules of the Court limit access to justice and make it extremely difficult for Applicants.

At this point, I hope you get some sense of the systemic frustration among immigration litigators. When I started thinking about this article, I was dealing with a Study Permit refusal that was made with the assistance of “Chinook 3+”. This is a huge issue and I would encourage you to listen to Will’s podcast for more details on how this system is affecting immigration applications. In our case, the only information we have on the involvement of Chinook in the Officer’s decision is one line from the disclosure package. Thus far, the Court has avoided cases involving Chinook or AI systems used by the government in rendering their decisions. I agree with many of the points made by Prof Gideon Christian at the University of Calgary in his article on Slaw. He correctly noted that Ocran received significant attention from litigation practitioners and the decision is frustratingly silent on this issue. Justice Little issued a narrow decision focused on the financial requirements by study permit applicants only (avoiding commentary on Chinook). I also know we will continue to push for clarity on the boundaries of AI in immigration decision-making.

Recently, the DOJ settled our ALJR on our Study Permit refusal related to Chinook. Our case will not make it to oral arguments and the decision will not be published. This is a good result for our client and the arguments in our 303 page Record clearly resonated at the DOJ; however, it means the possibility of a useful judgment from the Court on this issue has been lost.

In Part 2, I will look at a different approach and offer suggestions on how the system may be improved. There are many potential amendments and/or approaches that could benefit individuals and litigants. Spoiler Alert: as far as I am aware, nothing on the horizon addresses the issues above.

Postscript: Apologies if the above is too much of a rant or polemical. I may be harbouring years of stress that spilled on the page. We are currently in the midst of another ALJR and I am training a new assistant on FC Rules. It took her 4 tries to properly draft a Solicitor’s Certificate of Service and our current level of frustration with the Court is high. This article has been cross-posted on Slaw.

Success: Federal Court Judicial Review

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After countless hours of work, we are thrilled to report that our Application for Leave and Judicial Review was granted by Justice McHaffie in a decision dated 11 FEB 2022. It has been a pleasure to work with Ms. Rabia Abdulaziz Shubar Shubar and her family. This decision and the facts of this case are public record. Unlike our other files, we can share the details of this application and publish the details of this decision.

We were retained to assist this family at the end of 2019. As noted by Justice McHaffie, the parents are health care professionals and they have been working hard to keep residents of Canada safe and healthy during the pandemic. We submitted an H&C application as there was no other option to keep this family together. We have had many other H&C applications approved for previous clients. We looked at all the options and this family has been doing everything possible to follow the correct laws and regulations.

We are thrilled with this result and I have to commenJudicial Reviewd all the hard work done by the team at CIL. In particular, Liz spent countless hours doing legal research on issues of procedural fairness. Justice McHaffie agreed with our arguments and his analysis essentially mirrors our legal arguments. We, of course, agree with those arguments so it makes sense that he would follow the same reasoning.

Here is a critical quote from Justice McHaffie’s decision:

The officer’s decision refusing Ms. Shubar’s H&C application does not “meaningfully grapple” with any of these submissions or supporting evidence. In consequence, the decision effectively fails to address Ms. Shubar’s central submission on the BIOC, one of the three factors she put forward, and one that has an inherent importance in the H&C analysis. In the circumstances, I conclude that this “call[s] into question whether the decision maker was actually alert and sensitive to the matter,” and shows the BIOC not to have been sufficiently considered, well identified, and defined: Vavilov at para 128; Kanthasamy at para 39. This renders the decision unreasonable.

This is exactly right. H&C applications are complex and the Officers have broad discretionary powers; however, those powers are limited by principles of administrative law. The Officer is legally required to fully address and consider all the material evidence. Alas, in this case, this was not done.

At this point, the H&C application will be sent back to IRCC for redetermination by a different Officer. We are hoping to get a positive decision from IRCC so this family can stay together in Canada. The Federal Court decision has not yet been reported; however, you can check on this website and it will be published soon.