Immigration backlog leads to surge of legal cases against federal government

Yet another good analysis in the Globe, collateral damage from the government’s immigration policies and operational weaknesses that frustrate applicants and increase workload:

The federal government is facing a barrage of legal cases related to its backlog of immigration applications, which has led to slower processing times and plenty of frustration for those waiting years on a decision.

Immigration, Refugees and Citizenship Canada has been named in 709 mandamus applications filed in federal court this fiscal year, which started in April, according to figures provided by IRCC as of Nov. 14. The filings are easily on pace to surpass the total for the previous fiscal year.

Mandamus is an order issued by a court to a lower court, or government entity, to carry out their duties. Thus, hundreds of people are seeking a judicial order that compels Immigration to finish processing their applications.

Mandamus cases are generally filed when there is an excessive delay in processing an immigration application and without a reasonable explanation provided by the federal government for that delay.

Ottawa is ramping up its intake of immigrants, which it says is crucial to fuelling economic growth and alleviating labour shortages. However, some of its moves to boost immigration have led to significant processing delays, affecting applicants that include skilled workers who are highly sought after by employers.

In search of resolutions, more people are turning to the courts. Slightly more than 800 mandamus applications against IRCC were filed in the 2021-22 fiscal year, an increase of 465 per cent from 143 applications in 2019-20.Glo

While lawyers told The Globe and Mail that mandamus is a last-resort option, it’s increasingly one that immigration applicants are advised to take, given their mounting frustrations over a sluggish and opaque system.

“It’s an effective remedy,” said Mario Bellissimo, founder and principal lawyer of Bellissimo Law Group. “However, it’s a remedy that really shouldn’t be used as frequently as it is, when the system is running the way it’s meant to run.”

The federal government is trying to process a stockpile of immigration applications. As of Oct. 31, there were about 2.2 million applications in IRCC’s inventories. Around 1.2 million were in backlog, meaning they’ve been in the system for longer than service standards for processing. Processing times vary by immigration stream. The mass of applications has fallen since September, but is still much larger than before the pandemic.

The federal government has blamed the buildup on office closings related to COVID-19, hindering its ability to process files efficiently. However, several economists and legal experts say that Ottawa had a large hand in creating the situation.

After failing to hit its immigration targets in 2020, owing to the pandemic, the federal government found various ways of encouraging more people to apply for permanent residency, and the subsequent increase in applications overwhelmed IRCC’s ability to process files in a timely manner.

This has led to a number of grievances. For instance, some high-skilled foreign workers in Canada are nearing the end of their work permits, but have yet to hear about their status. Others applied for their permanent-resident cards years ago, but are unable to find out why processing of their files has stalled.

That is forcing more people to seek legal action.

Out of the 809 mandamus applications that were filed against IRCC in the 2021-22 fiscal year, 333 came from those in economic streams of immigration. Another 183 came from the family class of immigrants. (Many of these are spousal cases, with a partner stuck overseas.)

The mandamus process can be expensive. Max Chaudhary, an immigration lawyer in the GTA, said it can cost roughly $6,000 to $15,000 for a single case, depending on how many stages are involved.

Kerry Molitor, an immigration consultant, is concerned that processing delays are creating a situation in which wealthier individuals are better positioned to force the government’s hand.

“It’s a solution that’s out of reach for most people,” she said.

Lev Abramovich, an immigration lawyer in Toronto, says his firm has filed more than 300 mandamus applications over the past year, which makes him one of the more prolific users of this legal option.

“We take an aggressive approach. We’ve also been successful with it,” he said. “Generally speaking, a mandamus application will wake IRCC up and will put pressure on them to finalize the pending application.”

The process starts with a demand for performance to IRCC, often in the form of a letter. In some cases, the federal government will start processing the file at this point.

If the case remains stalled, lawyers will proceed to file an application for mandamus in federal court. At this stage, the federal government will usually resume working on a file and issue a decision, several lawyers said.

In rare instances, however, cases will proceed to a hearing.

That is what happened to Siavash Bidgoly and his wife, Iranian nationals who moved to Toronto from the U.S. in July, 2018. That same month, Mr. Bidgoly submitted his application for permanent residency, having recently been invited to apply by the federal government. His wife was listed as an accompanying dependent.

Mr. Bidgoly expected an approval within six months, based on the experiences of some friends. Shortly after he arrived, he started a company, Tribe Technologies Inc., which employs about 50 people today.

Instead, the process dragged out for years. Mr. Bidgoly made several attempts to learn more about his application status, often hearing that his security check was still in progress.

Mr. Bidgoly filed a mandamus application in February, 2021. A federal court justice ruled in his favour in March, 2022, ordering IRCC to issue a decision within 90 days. Mr. Bidgoly and his wife were later approved for PR status.

“It is stressful. It is draining. I love Canada, but I questioned myself,” he said. “You are here because you trust their immigration system, and now this is what you get.”

In the hearing, IRCC argued that the delay was not excessive, in light of the pandemic’s effect on processing times. Justice Paul Favel did not find that argument satisfactory.

“Simple statements to the effect that a security check is in progress or that the pandemic is responsible for the delay are insufficient,” read the decision, adding that IRCC “had to provide evidence.”

Source: Immigration backlog leads to surge of legal cases against federal government

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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