More people seeking judicial intervention with immigration applications - New Canadian Media
People turning to federal court for help with visa applications
At least one lawyer reported seeing two to three clients every month seeking judicial intervention in their cases — the same number he would see annually in previous years. (zimmytws's Images/canva)

More people seeking judicial intervention with immigration applications

Given that people have paid processing fees, they are legally owed a public duty to have their applications processed within a reasonable time, argues one immigration lawyer. A 'mandamus' application is a judicial remedy that can compel the performance of a public legal duty owed to an applicant.

Frustrated with the visa processing delays at Immigration Canada, an increasing number of people seeking to be new Canadians are flocking to the Federal Court to expedite their applications.

“Facing extraordinary delays, these applicants are turning to the judicial remedy of mandamus, which is an order issued by the Federal Court to compel a government department such as (Immigration, Refugees and Citizenship Canada) to process their applications,” said Victor Ing, a Vancouver-based immigration lawyer.

In an interview with New Canadian Media, Ing said he is seeing two to three clients every month seeking judicial intervention in their cases — the same number he would see annually in previous years.

“They just can’t get any answers from Immigration Canada, or they get boilerplate responses that don’t address their concerns…My colleagues are reporting similar increasing numbers,” he said, adding that with the current backlog of nearly two million applications, “many applicants are losing patience and are looking for ways to expedite their applications.”

“As immigration lawyers, we know that applying for a mandamus order is an effective tool for clients because there are few things that attract IRCC’s attention to an application more than the prospect of having to justify their delays in Federal Court,” Ing said.

Toronto immigration lawyer Chantal Desloges also told NCM she has made between 60 to 70 mandamus applications since last summer.

“People are being so frustrated at the delays and the inability to get answers from Immigration Canada, and this is forcing them to seek the help of the Federal Court,” Desloges said.

“This is adding burden to an already stretched Federal Court.”

Duty owed

Ing explained that ‘mandamus’ is a Latin word meaning ‘we command.’ It is a judicial remedy compelling the performance of a public legal duty that is owed to an applicant.

“In the immigration context where application processing fees are paid, IRCC owes a public legal duty to each immigration applicant to finalize their application within a reasonable time…and there is simply no other decision-maker that they can turn to for relief,” he said.

“Backlogs have grown exponentially due to the pandemic and other unexpected factors. These include IRCC’s allocation of resources to resettle Afghan refugees, which we are once again seeing with the humanitarian crisis developing in Ukraine.”

Even as Canada struggles to address the processing delays, the country’s 2022–2024 Immigration Levels Plan aims to continue welcoming immigrants at a rate of about one per cent of Canada’s population.

This includes 431,645 permanent residents in 2022 (an increase of about 21,000 people from its original plan), 447,055 in 2023, and 451,000 in 2024. 

To support the new ambitious targets, which follows a record year of 405,000 new permanent residents in 2021, IRCC recently announced a plan to modernize Canada’s immigration system to fuel economic recovery and improve client experience.

According to published IRCC numbers, 134 mandamus applications were referred by the court in the first fiscal quarter in 2021, between April and July, including 62 in family class, 66 in economic class and six as refugees. It surpassed the yearly total of 107 in 2018-’19, 64 in 2019-’20 and 93 in 2020-’21.

NCM has requested updated numbers from IRCC.

Lack of transparency, communication

Steven Meurrens, an immigration lawyer, wrote in his blog that if the government decides to let processing times in certain applications continue to increase to keep intake high, then the current frustrations will likely continue to grow. 

“There will also continue to be an increase in people submitting mandamus applications to the Federal Court of Canada to compel IRCC to process their applications,” he said.

The Canadian Immigration Lawyers Association (CILA) said the IRCC backlog has impacted other areas of government as well. 

The Access to Information and Privacy Office has received a massive influx of requests made under the Access to Information Act, according to an article posted on its website. These requests are used by immigration applicants to obtain notes taken by Immigration officers who have reviewed their current and past immigration applications. 

“Many applicants affected by the current backlog have criticized the lack of transparency and communication from IRCC on their files,” said Arlind Selimi, an immigration lawyer, the author of the article.

“With the mounting uncertainty, many applicants have been making requests, which have caused longer wait times and in some cases receipt of outdated information,” he said.

A report from the Information Commissioner of Canada highlighted that in the 2019 to 2020 fiscal year, there were 116, 928 access to information requests directed at IRCC, a 42 per cent increase from the previous year.

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A multiple-award winning journalist, Fabian Dawson is an internationally acclaimed author, filmmaker and media expert. His work over the last four decades spans the globe and he also serves as a consultant/strategic advisor to a variety of international companies. As deputy editor-in-chief of The Province, part of the Postmedia chain, Dawson led initiatives within a special publications group to provide directed content for a variety of organisations. He was named the 2019 recipient of the Bruce Hutchison Lifetime Achievement Award at Jack Webster Awards. Dawson has been invited by the governments of India, Malaysia, Taiwan, China, Hong Kong and the United States to act as a media observer/advisor on a variety of Asian-Canada issues. Dawson, now operates FD Media, which specializes in harnessing editorial assets to revenue generating opportunities.

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