Trying to clear the immigration backlog

The Federal Court recently launched a pilot project to reduce its growing backlog of judicial review applications from study permit applicants.

The goal is to reduce the time it takes for students to apply for leave and judicial review of their permits. Typically, a JR takes 14 to 18 months. The hope is the pilot can cut this down to five months. Applicants will be able to apply for leave and judicial review at the same through a short form. Judges will then decide on both based on the written submissions, which removes the time and cost of a hearing.

This comes at a time when the number of applicants seeking the Court’s review is staggering.

In 2016, there were less than 6,000 immigration filings. By 2021, that number rose to 9,762. The pandemic exasperated the growing issue, as Immigration, Refugees and Citizenship Canada (IRCC) could not process applications at normal levels.

In 2023, the number of immigration filings at the Court shot up to 16,726. By the end of this year, more than 24,000 are expected.   

Adrienne Smith, founder lawyer of Smith Immigration Law, says she’s never seen anything like this in her 10 years of practice.

“The sheer amount of refusals, especially for temporary visas, is staggering,” she says.

“When you have unrestricted intake for visas and pressure to decide quickly, it doesn’t produce the best work. The Federal Court can’t cap the number of cases it has. It’s commendable that it is doing a project like this and trying to be responsive to the backlog.”

The initiative is spearheaded by the Federal Court Citizenship, Immigration and Refugee Law Bar Liaison Committee, which includes representatives from the Department of Justice (DOJ), the Court, and the private bar. The committee has worked for the past two years to devise a way to alleviate the growing demand on the Court.

Warda Shazadi Meighen, an immigration lawyer at Landings LLP and committee member, says the pilot is designed for cases where timing is important.

“Applications for leave and judicial review for study permits are an excellent place to start because time and cost matters for the applicants a great deal,” Shazadi Meighen says.

“For students, a long delay can mean losing their spot in their program. This pilot can better position students to move forward with their lives.”

For applicants to use the pilot, IRCC has to agree to participate in the process, and both parties must agree to the facts in the matter. Complex cases that involve national security issues or where the applicant brings new evidence cannot go through the pilot.

During the usual leave to appeal process, applicants have to file several documents and wait for the DOJ’s response before proceeding—a process that currently takes months. The pilot replaces this with a four-page form and a set of questions that must be answered within a word limit. By limiting the amount of space and time on the application, the goal is to reduce the applicant’s costs.

Cutting wait times could also reduce mandamus applications, a commonly used remedy by applicants when their files are delayed beyond the normal processing time. Delays have become the norm, with over one million immigration applications stuck in the backlog, more than half of which are for temporary visas, including study permits.

Zeynab Ziaie Moayyed, an immigration lawyer at MyVisa.Law, has been focused on helping applicants find ways to challenge the delays, as well as the ways applications are decided. She says IRCC uses Chinook, software designed to assist in reviewing files. However, applicants receive little information on how it’s used to make decisions, and that lack of clarity leads to applications for judicial review.

“The challenge is that there is no review mechanism for the decisions made with the assistance of technology,” Moayyed says. “So more and more applicants are turning to the Federal Court to have their applications reviewed by a person.”

Then there’s the issue of knowing their options. When applications are rejected, applicants receive a letter saying they can re-apply, but it contains no information about the judicial review process or the Court’s new pilot project. It’s falling to lawyers to inform the public.

In her practice, Shazadi Meighen tries to bypass the judicial review application process by working with DOJ lawyers to settle cases for her clients. However, this option isn’t available for all applicants, and the Federal Court doesn’t have a formal mediation process. She says the pilot could present an easier way for applicants to resolve their cases.

“There’s no formal process or requirement for DOJ lawyers to work with applicants and settle out of court,” Shazadi Meighen says.

“The hope is that the transparent and simplified process will lead applicants to opt-in and save on time and costs.”

Access to justice is one of the reasons why she decided to be a part of the project. While it can’t fix the underlying issues of the immigration backlog, it does help alleviate some pressure on students struggling to get to Canada.

“After all, the aim is to get students decisions on their study permits as efficiently as possible.”