Federal Court Rules Against Immigration Hopefuls in Skilled Worker Backlog

Justice Donald Rennie ruled that the federal government was within its rights to eliminate Federal Skilled Worker Program applications affecting approximately 280,000 people last year (StockMonkeys.com)

A federal court on Thursday ruled that the Canadian government was within its rights when it threw out the backlog of applications for the Federal Skilled Worker Program (FSWP) that were filed before February 27, 2008.

Presiding judge, Justice Donald Rennie, said that ”section 87.4 [of Bill C-38] is valid legislation, compliant with the rule of law, the Bill of Rights and the Charter.”

He addressed the fact that the legislation had caused would-be immigrants in the queue anguish:

“The applicants have waited in the queue for many years only to find the entrance door closed. They see the termination of their hope for a new life in Canada to be an unfair, arbitrary and unnecessary measure.”

But maintained that the applications were “terminated by operation of law” and that the court did not have the jurisdiction to overturn the legislation.

Lorne Waldman, a lawyer who represents the 1,400 people who are suing the federal government to force it to process their applications, said he would recommend to his clients to appeal Justice Rennie’s decision, which they have 15 days to do.

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 set of immigration rules that creates 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 Prime Minister Lays Out His Vision For Immigration To Canada

Prime Minister Stephen Harper told the Globe and Mail that Canada will need to compete for high value immigrants as other country look to immigration to solve their fiscal problems

In an interview on Saturday with the Globe and Mail, Canada’s largest national newspaper, Prime Minister Stephen Harper expounded in length on his vision for Canada’s immigration programs.

He told the Globe that competition for skilled international workers would heat up over the coming years, as “the demographic changes .. the aging population, start to bite, in many developed countries”.

He trumpeted his government’s achievements in reforming what he called the old “passive pro-immigration policy” which “operated on receiving applications and processing them in order” and had left his government with “backlogs of hundreds and hundreds of thousands of applications”.

He said his government is trying to shift to an “activist policy” where Canada goes out and recruits the immigrants it needs, and when it receives applications, “prioritize them to the country’s objectives.”

The Prime Minister said that as the rest of the developed world increases its immigration intake, Canada would need the activist immigration policy to “compete, and make sure we get the immigrants both in terms of volumes and particular attributes: skills, expertise and investment capacity.”

Under the Conservative government, Citizenship and Immigration Canada (CIC) has legislatively wiped out the 280,000 application Federal Skilled Worker (FSW) program backlog, and frozen acceptance of new applications under both the FSW program and the Federal Immigrant Investor program as it re-designs the programs and reduces the backlogs.

CIC has also suspended the parent and grandparent sponsorship programs and replaced them with a ‘Super Visa’ that allows foreign parents and grandparents of Canadian citizens and landed immigrants to visit Canada for up to ten years.

Canadian Immigration Department Details its Achievements, Expects Reduction in Wait Times

CIC plans to adopt an Expression of Interest (EOI) model for the Federal Skilled Worker Program similar to that in place in New Zealand.

Citizenship and Immigration Canada (CIC) summarized what it considers the successes of its reforms in recent years in a press release on Friday. CIC said that it expects that by the end of 2013, it will be able to process applications as they are received, and complete their processing within one year.

It said that this will open the door to the adoption of the Expression of Interest (EOI) model for the Federal Skilled Worker Program (FSWP) and possibly other economic immigration streams.

The EOI model requires applicants to submit a simplified preliminary application detailing their qualifications, and allowing provinces and employers to select the most promising of those applicants, who are then invited by CIC to submit a full application that includes documents proving their qualifications.

“The Government’s number one priority remains the economy and job growth. Immigration backlogs are detrimental to our ability to attract the world’s top talent,” said Citizenship and Immigration Minister Jason Kenney in describing the purpose of moving to a “just in time” EOI system of immigration admittance.

“With the decisive actions we’ve taken to tackle the backlog, we will finally be able to select immigrants who better meet the needs of the Canadian labour market. We will aim to process their applications in less than 12 months.”

CIC also detailed the measures it has taken in recent years to address a problem that has long afflicted the FSWP: the large volume of applications that exceed the program’s annual quota and lead to wait times as high as eight years:

  • In 2008, only accepting FSW applications from individuals qualified in an occupation on the “priority occupations” list.
  • In 2010, adding a quota to the number of new applications accepted.
  • In June 2012, eliminating most of the FSW applications on the backlog that were received before February 27, 2008.
  • In July 2012, temporarily pausing acceptance of new FSW applications, except for applicants with a qualifying job offer and those applying under the PhD stream.

These measures, said CIC, have reduced the FSWP backlog from 640,000 people in 2008 to 100,000 today.

CIC plans to re-start the FSWP in 2013, and admit 55,300 people over the year, approximately the same as the 55,000–57,000 quota for the program in 2012. It said that new rules for a revamped FSWP will be published later this year.

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's finance department in its National Headquarters on 365 Laurier Avenue West in Ottawa, Ontario

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.

Group Suing Government Over Wipe-Out of 280,000 FSW Application Backlog Making One Last Try in Court

A group of applicants whose applications for permanent residence in Canada were wiped out by legislation passed by parliament on June 29th are asking a federal court judge to order CIC to process their applications on 'humanitarian and compassionate' grounds. (Montrealais)

A group of approximately 900 people whose applications for permanent residence in Canada were closed after the federal government wiped out the back-log of 280,000 Federal Skilled Worker program applications are making one last attempt in court to force the federal government to process their applications.

The group had previously scored a victory when a federal court justice ruled that the federal government must assess their applications due to the legal obligation it had to process applications in a timely manner once it had filed them. Soon after the ruling, Bill C-38, legislation which includes a legal provision that wipes out the back-log of applications that were filed before February 27th 2008, was passed, which the federal government argues invalidates the court ruling.

The lawyers representing Citizenship and Immigration Canada (CIC) stated that the federal government would process the applications of 165 of the litigants whose files were not among the 280,000 applications in the backlog, but that the applications of the remaining litigants would not be processed as they were eliminated by Bill C-38 when it was passed on June 29th.

The group’s lawyer, Tim Leahy, is making a final effort to save the group’s applications and asking the presiding judge to order CIC to process the group’s applications on ‘humanitarian and compassionate’ grounds.

Judge Denies Injunction to Prevent Applications in Backlog From Being Closed

A federal court judge has rejected a request by over 800 applicants for immigration to Canada whose applications will be closed as part of the wipe-out of the 280,000 Federal Skilled Worker program application backlog, and who are suing the federal government for its delay in processing their files, for an injunction to force the federal government to keep their immigration applications open until the case is decided upon.

A federal court judge denied a request by 800 immigration applicants for an injunction against the federal government. (UNODC)

The judge said that the court doesn’t have authority to decide on legislation that has not yet passed, and deny the Immigration Ministry powers that it does not currently have. The case is set to be decided upon next month, after the legislation, Bill C-38, which is expected to be passed in June, is in effect.

A spokeswoman for Immigration Minister Jason Kenney said that the government was pleased with the decision and expects the legislation to stand up to all legal challenges.

Immigration Applicants Sue Canadian Government for Wipe-out of 280,000 Application Backlog

A group of former applicants for immigration to Canada are suing the Canadian government for its decision to wipe-out the backlog of approximately 280,000 applications filed under the Federal Skilled Worker program before February 27th 2008.

Toronto lawyer Lorne Waldman is representing at least 40 people from China and Hong Kong who had their applications closed in the wipe-out. The legal action seeks to force the federal government to process their applications. The hearing for the case will be on June 5th.

A group of at least 40 immigration applicants are suing the Canadian government for closing their applications (UNODC)

Waldman is also seeking an injunction to force the federal government to keep his clients’ applications open once bill c-38 passes, and the backlog wipe-out is legally put into effect, until the case is decided.

The federal government argues that the wipe-out of the 280,000 applications was necessary to implement a new immigration assessment system, as the processing of old applications was taking focus away from processing applications filed under more recent rules that better meet Canada’s needs.

Immigration Minister Jason Kenney says he’s confident this latest legislation will stand legal challenges, but the federal government’s attempt to wipe-out a backlog ten years ago legislatively through a retroactive change in the assessment system failed due to legal challenges.