2023: A record rear for Canada's federal court immigration litigation

By Victor Ing,
Special to The Post

It was an extremely busy year in the Federal Court when it came to immigration lawsuits. Under Canadian immigration law, the Federal Court has the final jurisdiction to review and overturn immigration decisions upon “judicial review”. In 2023, the Court saw a 20% uptick in new judicial review applications being filed, which begs the question: “What happened”? In this blog, I will briefly review the judicial review process and discuss the reasons for this incredible and unsustainable growth in litigation.
An application to the Federal Court for judicial review is the last option available to challenge an immigration decision, whether it is a decision to refuse a visa or to deport a person already in Canada. As the name suggests, a “judicial review“ is a request to a Judge of the Federal Court to review an immigration decision and decide whether it was reasonable and made in accordance with the law and the principles of fairness. Accordingly, the Federal Court has always played an integral role in holding immigration decision-makers accountable, and their judgments have often shaped the way IRCC makes new policies.
In 2023 there were over 16,000 new judicial review applications filed in the Federal Court. On average, that’s over 45 applications being filed every single day of the year, including weekends and holidays. By comparison, in 2022 there were over 13,000 applications filed. The Federal Court has become bloated with new lawsuits and it is seriously affecting how quickly cases are adjudicated at the Court.
Why is this happening?
There are at least three major contributors to the staggering growth in litigation:
1. Record levels of both temporary and permanent immigration
We are continuing to see record levels of immigration in Canada. In 2022, Canada welcomed a record 437,539 new immigrants, which even exceeded their own lofty targets. We expect to welcome 500,000 new immigrants per year by 2025 and that’s not even counting the hundreds of thousands of new students and workers that are approved for visas or permit extensions each year. With an increased number of applications come an increased number of refusals, which further clogs Canada’s court system with new judicial reviews to hear.
2. Inadequate reasons by decision-makers
To compound the problem, visa officers are notorious for refusing cases without adequately explaining their decision in the refusal letter. One of the unfortunate results of this practice is that many refused visa applicants will challenge a decision in Federal Court just to find out why their application was refused. This occurs because, as part of the judicial review process, the Federal Court will contact the immigration office responsible for the decision and compel them to produce the full set of reasons for the decision to the Court and to the judicial review applicant. While there are other methods to obtain the full set of reasons, those methods are slow and there are set time limits to file an application for judicial review that applicants do not want to risk missing.
3. Sloppy administrative errors
I can share my own experiences that last year was a real anomaly in my practice as an immigration lawyer. I have been working on judicial review applications for 13 years and last year stood out to me because, for the first time, I often found myself going to court to fight over minor administrative errors that never used to take place with any kind of regularity.
Here are just a few examples of cases I litigated in 2023:
In multiple cases we argued on behalf of our clients whose applications were refused because IRCC officers incorrectly concluded that the clients did not respond to document or information requests. These cases involved miscommunications where, for unknown reasons, IRCC officers did not get the documents or information that the client sent or, in some cases, the extension of time requests they made to produce the requested documents or information later.
In 2023 we represented several clients who were found inadmissible to Canada and were refused their applications for permits; however, the decisions were incorrect, or at least premature, because the clients were either not inadmissible at all or were still waiting for a hearing to decide their admissibility in Canada.
We also argued several cases where immigration officers failed to follow the Minister of Immigration, Refugees and Citizenship’s own public policy guidelines to grant visas based upon special program initiatives such as the Hong Kong special measures to issue work permits to new graduates and their spouses.
With the massive uptick in new immigration applications each year, and the equally large undertaking happening at IRCC to digitize the visa application process, which includes their controversial use of advanced analytics and artificial intelligence to assist with decision-making, it was probably predictable that we would see a large increase in litigation in the Federal Court.
However, what is happening now is simply not sustainable. According to a March 2023 CBC report, over 70 percent of the Federal Court’s resources are already spent hearing immigration lawsuits, and we hope that IRCC will try to address some of these issues in this new year to help clear the logjam of cases at the Federal Court. Until that time, immigration clients will continue to fight at the Federal Court for their right to receive fair and reasonable decisions, and immigration applicants should be aware of this important tool in the immigration lawyer’s toolbox to help them when they need to turn to the Federal Court as the option of last resort.
Victor Ing is a lawyer of Sas & Ing Immigration Law Centre. He provides a full range of immigration services.
For more information go to canadian-visa-lawyer.com or email [email protected].