Immigration Litigation: Current Issues, Part 1

There is a small army of immigration lawyers who battle in the Federal Court of Canada. Most practitioners have the sense to dedicate themselves to the solicitor side of this practice. In Part 1, I will focus on issues with the current system based on my experiences with the Court over the past 10+ years. I will be posting subsequent parts based on recent (creative) approaches that address, or get around, some of the issues below. This is not a review of substantive law or decisions from the Court. This critique is focused on the system as a whole.

TL;DR

• There is a gross imbalance between the resources of private counsel and those of the DOJ;
• The system is designed to weed out low-income litigants;
• Federal Court Rules are designed to impede access to justice;
• Immigration matters are subject to additional, unfair procedures that are not applied to any other matters at the Court;
• The DOJ has the power to “settle” matters before they get to Court, limiting public scrutiny of errors made by Officers and potential precedents; and,
• The remedies at the Court are limited causing the potential for a revolving door of decisions from the government to the Court and back to the government, ultimately ending when the client gets a positive result or runs out of funding.

During the summer of 2005, I first whetted my appetite for immigration litigation. I was a summer student at the Centre for Spanish Speaking Peoples legal aid clinic. The Legal Director had agreed to assist a client with an Application for Leave and Judicial Review (ALJR) to Federal Court. I did my best to assist but mainly I just tried to stay out of her way. I knew almost nothing about judicial reviews at that time. I remember the long hours she would spend in her office doing research and drafting legal submissions. I remember the stress and frustration. I remember the general feeling of helplessness in the clinic.

As the case proceeded, I recall the Legal Director was often frazzled as she navigated the strict Rules of the Court (more on this later) and strict FC deadlines. The entire clinic mobilized to assist this client (a single mother from Mexico) in the name of Justice. I do not even remember if we won. Perhaps the Court rendered their decision after I was comfortably back in law school. My takeaway from that experience was the monumental amount of work involved and the gross imbalance between our resources and those of the Department of Justice.

I did not know, at that time, this experience with immigration litigation is not unusual. Even experienced counsel deal with high levels of stress and frustration navigating Federal Court procedures. It is not an understatement that the cards are stacked in favour of the government – in immigration matters as well as other areas of law. In our field, however, I would argue the Court system is even more stacked against practitioners. For immigration litigation, there are so many ways the case can be refused while so few ways to actually get justice for our clients – often refugee claimants or individuals with little to no financial means. In addition, the typical best-case decision from the Court is an order that the matter is sent back to be decided by a different Officer.

My immigration litigation frustration continued as an articling student. A notable case: an Indian teacher had retained the firm to judicially review a refusal of her federal skilled worker (FSW) application. This was her 3^rd ALJR. Yes, you read that correctly. She had applied, been refused, gone to FC, “won” at FC, the matter was returned to the Visa Officer, refused again, gone to FC (again), “won” (again) at FC, returned to Visa Office (again), refused for a 3^rd time, and retained the firm yet again. Clearly, her family had deep pockets. In retrospect, I cannot imagine the significant sacrifices made by this teacher and her family to have the patience and resolve to jump through all the aforementioned immigration hoops. I suppose they believed it was worth the financial and emotional costs.

Unlike other Federal Court matters, immigration cases must be successful at two (2) stages as there are different rules designed only for immigration matters. Let me repeat that. Every other case that proceeds through the Court only needs to be approved by one (1) judge. Immigration cases must first be approved by one (1) judge (the Leave stage) and then, if that judge grants leave, then the case can proceed to a 2nd judge for the final decision. I was describing this system to a criminal defence lawyer and she replied, “why don’t you just appeal the decision of the first judge?” No, not possible. The system does not allow appeals of the Leave decision and that decision is simply a couple lines from a Judge with no reasons. I know. How is this not a gross violation of procedural fairness?

It gets worse. In many types of litigation (I have been told), counsel may receive multiple packages of disclosure and the procedures of due diligence may involve a back and forth between the sides. In immigration, not so. In cases where the Officer has not provided reasons, the Court will provide Rule 9 disclosure. This disclosure may be redacted, it may omit parts of the government’s file and it may not include significant documents from the Officer. Once Rule 9 has been received, however, counsel has a very short time to produce and perfect the Record. In certain situations, counsel may examine the Officer or request more time to obtain additional disclosure. These situations, however, are quite rare and in the vast majority of cases, counsel must produce their Record based on the Rule 9 disclosure, in whatever form it is disclosed.

I believe we are all well acquainted with the imbalance between criminal defence lawyers and the Crown. Anyone who has seen Law & Order may have an understanding of the discrepancy between the resources of the police & prosecutors compared with defence counsel. Principles of Disclosure from the Public Prosecution Service of Canada outline various procedures and, of course, immigration is not mentioned. In immigration litigation, I would argue that discrepancy is even more imbalanced. Yes, even worse. Two examples: 1. From my understanding, criminal defence lawyers have robust rules of evidence that give them significant access (relative to immigration) to the Crown’s file. In immigration, not so. 2. Defence lawyers may easily (ok – I have no idea if it is “easy”) question the arresting police officer and they may scrutinize their actions prior to arrest in detail. In immigration, not so. In fact, Visa Officers are strongly protected by the system. The DOJ may go to great efforts to limit access to Officers and to limit scrutiny of their decisions, no matter how egregious.

As noted above, most immigration and refugee lawyers do not go to Court. When I started my own firm, this was a decision we had to make. Financially, it does not make sense. I remember at the end of our first judicial review, I did a calculation on my hourly wage. It was slightly above minimum wage. Side note: as a sole practitioner, I did almost all the admin work myself. Since then, when I am considering a new FC matter, I have learned to accept that I will sacrifice at least one night’s sleep and one weekend. That is now simply in the back of my mind while I am drafting the contract for this grueling work. The strict Rules of the Court limit access to justice and make it extremely difficult for Applicants.

At this point, I hope you get some sense of the systemic frustration among immigration litigators. When I started thinking about this article, I was dealing with a Study Permit refusal that was made with the assistance of “Chinook 3+”. This is a huge issue and I would encourage you to listen to Will’s podcast for more details on how this system is affecting immigration applications. In our case, the only information we have on the involvement of Chinook in the Officer’s decision is one line from the disclosure package. Thus far, the Court has avoided cases involving Chinook or AI systems used by the government in rendering their decisions. I agree with many of the points made by Prof Gideon Christian at the University of Calgary in his article on Slaw. He correctly noted that Ocran received significant attention from litigation practitioners and the decision is frustratingly silent on this issue. Justice Little issued a narrow decision focused on the financial requirements by study permit applicants only (avoiding commentary on Chinook). I also know we will continue to push for clarity on the boundaries of AI in immigration decision-making.

Recently, the DOJ settled our ALJR on our Study Permit refusal related to Chinook. Our case will not make it to oral arguments and the decision will not be published. This is a good result for our client and the arguments in our 303 page Record clearly resonated at the DOJ; however, it means the possibility of a useful judgment from the Court on this issue has been lost.

In Part 2, I will look at a different approach and offer suggestions on how the system may be improved. There are many potential amendments and/or approaches that could benefit individuals and litigants. Spoiler Alert: as far as I am aware, nothing on the horizon addresses the issues above.

Postscript: Apologies if the above is too much of a rant or polemical. I may be harbouring years of stress that spilled on the page. We are currently in the midst of another ALJR and I am training a new assistant on FC Rules. It took her 4 tries to properly draft a Solicitor’s Certificate of Service and our current level of frustration with the Court is high.