Canada’s federal court saw more new immigration cases in 2022 than in any of the past 30 years, which some lawyers say is a sign of an overburdened system.
Recent statistics released on the court’s website show that at the end of 2022, more than 70 percent of its cases were immigration and refugee-related.
Overall, the court saw 13,487 new immigration cases in 2022, up from 9,761 in 2021 and 6,424 in 2020, according to the Office of Chief Justice Paul Crampton.
Attorneys who work with immigration applications say the spate of cases making their way to federal court is in response to delays and denials at Immigration, Refugees and Citizenship Canada (IRCC).
The IRCC has a backlog of almost a million applications.
Longer processing times for any type of immigration application — including those for temporary or permanent residence — have left people languishing as they wait, according to Barbara Jackman, a Toronto immigration attorney.
“I don’t think there’s one answer, but I think part of it is COVID-19,” Jackman said of Zoom on Tuesday. “Now cases are being processed at once that they have been sitting on for the last few years.”
The more cases progress and are treated, the more denials are issued. These people are taking their cases to federal court in response, Jackman said.
“It’s really badly behind.”
Jacqueline Bonisteel, an Ottawa immigration attorney, suspects that a surge in Mandamus applications, which are being used to force IRCC to make timely decisions after significant delays, is at least partially driving the rise in new immigration cases.
Mandamus applications are often submitted when an applicant has far exceeded the reasonable processing time and attempts to obtain a response from IRCC are unsuccessful.
Bonisteel called such applications a last resort, which is becoming increasingly common.
“The thing about this remedy is that it’s pretty effective most of the time,” she said.
“I find I file quite a few of these in my practice, and often just the act of filing that first court application – without ever having to make any court submissions – that suddenly triggers an IRCC decision or a letter about the next Steps.”
Jackman said she thinks the increase in Mandamus applications has reduced their effectiveness in persuading IRCC to act.
“If you submit this notice, you will rarely get a response from IRCC,” she said.
“They used to do that more often, but there are so many Mandamus [applications] now that I think … it doesn’t motivate them, it doesn’t spur them on to act quickly.”
IRCC has almost two million applications in its inventory, including the backlog. In an emailed statement, the ministry said it made more than 5.2 million final decisions for permanent residents, temporary residents and citizenship in 2022, nearly double the year-ago figure.
Those who wait are frustrated
Still, those waiting are often frustrated with the immigration process.
Laura Silver, a Canadian citizen who was separated from her husband in Cuba, waited almost four years before appealing to federal court.
She was approved to sponsor her husband in 2019 after applying in 2018 and had hoped her case would be processed within about 11 months.
Her husband required a medical examination before coming to Canada but was unable to access consular services in Havana after the Canadian embassy there was downsized due to ill health.
The pandemic has also slowed the process, she said.
We’ve all missed our wedding anniversaries just waiting for the paperwork to get done. – Laura Silver
“I know for us that we missed funerals. We missed celebrations. We all missed our birthdays. We’ve all missed our wedding anniversaries just waiting for that paperwork to get done,” she said.
Silver said her family’s best legal avenue is to go to federal court and believes filing a Mandamus application got the ball rolling for IRCC to eventually issue the visitor visas and permanent residency permits her family needs needed.
She said it’s a sign of a broken system that so many have to rely on these apps to get the answers they deserve.
“It’s really a misuse of some of the resources that we have,” she said.
According to the Federal Supreme Court, the avalanche of foreigner proceedings was difficult to cope with.
According to the Supreme Court, the court has conducted an average of 7,388 new cases per year since 1993.
The number of new immigration cases, 5,313 in 2016 and 5,572 in 2017, was as low as now less than half the case count.
“Chief Justice Crampton noted that the number of applications filed in 2022 is the highest on record, beating the previous record of nearly 13,000 set in 2012 following significant changes to the Immigration and Refugee Protection Act,” it said in a statement from his office.
“Given the significant number of vacancies at the court and the scarce resources at the court’s registry, it is difficult for the court to keep up with the recent surge in applications.”
The court says that in recent years it has settled cases in an average of nine months when there was a hearing and in four months when denied without a hearing.
The Federal Supreme Court has 34 full-time judges, excluding the Chief Justice and the Associate Chief Justice. Up to 39 full-time judges are allowed, which means that five positions are vacant.
Jackman would like to see more appointments of judges with immigration backgrounds, given the many immigration and refugee cases it handles.
“Share the dish,” she said. “Federal court must have an immigration and refugee component.
“I’m sure they would find ways to speed it up if they did.”
