April 19, 2013

The Decision of the Federal Court on the FSW Backlog Litigation

The Federal Court of Canada has dismissed the application for judicial review. However, Mr. Justice Rennie, who issued the ruling, has left the door open for a possible appeal.

The Decision

On March 29th, 2012, Citizenship and Immigration Canada (CIC) announced that all applications made to the FSWP before February 28th, 2008 would be eliminated without review. Many applicants wished to challenge this decision, and several hundred added their names to a possible class action lawsuit.

The lawyers representing the applicants argued, among other points, that the decision to eliminate the backlog was in violation of two laws: the Canadian Bill of Rights and Canadian Charter of Rights and Freedoms.

Justice Rennie expressed sympathy for the plight of would-be applicants. In his official decision, he stated that “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.”

Despite his sympathy, his ultimate conclusion was that CIC’s actions were in fact within the bounds of both the Bill of Rights and the Charter. As applications were ‘terminated by operation of law’, the court would not proceed further in challenging the government.

What This Means for Applicants

At present, it appears that the Federal Government intends to continue with its plan to eliminate pre-February 28th, 2008 files. As part of this process, government processing fees will be returned to applicants.

Attorney David Cohen was among the lawyers representing applicants in this legal proceeding. “I am, of course, extremely disappointed in the outcome to date,” he said. “I still feel strongly that the government’s decision to terminate the applications of individuals who waited patiently and played by all the rules is both unethical and immoral. Unfortunately, the Federal Court determined that it was not illegal.”

Applicants whose files are scheduled to be eliminated are not precluded from reapplying for Canadian immigration, if eligible. A revised FSWP will be opening its doors to applicants on May 4th, 2013. In total, there are over 60 programs that can lead to Canadian Permanent Residency.

Room for Appeal

While we are very disappointed with the decision, the Court did certify questions for the Federal Court of Appeal to consider.  We are currently studying the decision and will report back to you next week.

Click here to read the decision.