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 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.

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.