Ottawa faces nearly 300 court challenges on asylum claimants’ denied hearings

The Immigration Department is facing almost 300 court challenges to its decision to deny tens of thousands of asylum claimants the right to have their case heard at Canada’s independent immigration and refugee tribunal.

At least 270 applications for judicial review have already been accepted by the Federal Court of Canada, with about 10 more cases being lodged each week, according to lawyers working on the cases.

The government is facing the spate of judicial review applications after it changed asylum rules in March, putting tens of thousands of asylum claimants on a fast track to deportation.

The rules in the new border and immigration law, designed to prevent abuse of the system, restrict asylum claims to people who have been in Canada for less than a year. They were backdated to apply to asylum claimants who entered Canada after June 24, 2020.

About 30,000 asylum applicants could now be ineligible for an asylum hearing at the independent refugee tribunal, Immigration, Refugees and Citizenship Canada previously told The Globe and Mail.

The day after the bill became law in March, IRCC starting sending out letters to foreign nationals who made refugee claims after being in Canada for more than a year, informing them they could face imminent deportation.

Before being deported, asylum claimants have a right to ask for a risk assessment, carried out by IRCC officials to judge if they would be in danger or face persecution if sent back to their home countries.

Immigration lawyers argue that a preremoval risk assessment conducted without an inperson hearing could breach asylum claimants’ human rights. They also argue the new rules could disproportionately affect LGBTQ foreign nationals and those who have experienced domestic violence, who may have valid explanations for delaying asylum claims beyond a year.

“We are currently waiting for the court to set a date for a case management conference, which both the applicants and the government lawyers believe would be the most expeditious way to proceed, given the numbers and given the fact that the numbers will grow in the coming weeks and months,” Toronto immigration lawyer Maureen Silcoff said.

Taous Ait, a spokesperson for Immigration Minister Lena Metlege Diab, said the department could not comment on matters before the courts.

She said the new immigration law “includes targeted measures to respond to sudden increases in asylum claims by reducing pressure on the asylum system” and to “prevent misuse of the system by those who may be looking for an alternative pathway to existing immigration.”

She said the new asylum rules, introduced in Bill C-12, respect the 1951 Refugee Convention, and the Charter of Rights and Freedoms.

“We have been transparent about these measures from the outset, including through parliamentary committee appearances, news releases and information published online,” she added.

But lawyers for asylum claimants facing deportation argue that the new rules are so rigid they could prove unconstitutional.

Some asylum claimants came from countries, such as Iran and Lebanon, that Canada does not currently send people back to. Ms. Silcoff said the new rules could leave such asylum claimants in limbo, with no decision on whether they can stay or must leave Canada. Only those facing deportation are eligible for a preremoval risk assessment.

Those deemed by IRCC to be at risk if sent back to their home countries could be given the right to settle in Canada, allowing their family overseas to potentially join them here.

Toronto immigration lawyer Joycna Kang said the flood of applications for judicial review is adding to backlogs in the federal court.

“The Court was already experiencing record volumes of immigration-related litigation over the past year, and the addition of C-12 challenges has only intensified the strain on its resources and further exacerbated existing backlogs,” she said in an e-mail.

“The sheer number of C-12 challenges being filed speaks directly to the unfairness and rigidity of the new eligibility rules. Bill C-12 provides no mechanism or obligation for IRCC officers to consider the wide range of compassionate, procedural, and practical factors that can contribute to delays in seeking protection after arriving in Canada. Nor does it allow claimants any meaningful opportunity to explain why such delays may be reasonable in light of their individual circumstances.”

Toronto immigration lawyer Max Berger has so far filed 22 federal court applications for clients, none of whom, he said, were “happy about losing the opportunity to have a hearing before” the Immigration and Refugee Board.

He said that the number of judicial review applications filed so far likely represents just a fraction of those rendered ineligible for an asylum hearing before the tribunal.

“Many refugee claimants are represented by immigration consultants who are not authorized to represent clients in Federal Court. I suspect that some consultants will not refer their clients to a lawyer to file a judicial review and those claimants will lose out if the challenge to Bill

C-12 is successful,” he said in an e-mail.

Ravi Jain, a former president of the Canadian Immigration Lawyers Association, said in an e-mail that “rather than properly regulating who may practice immigration law, they instead brought in a law they likely knew would be struck down and which unfairly limits some who genuinely fear persecution.”