Status of the Law Suit Regarding Skilled Workers2012-05-28
Many of you may be wondering about the status of the recent lawsuit that went to Federal Court regarding skilled workers. In particular, this action was attempting to stop the government from eliminated 280,000 skilled worker applications that are already underway.
As you may know from reading this blog, the federal government felt it had no choice but to eliminate this backlog if it was to ever streamline the immigration system and process immigrants in months rather than years.
In any case, the Federal Court heard the application and decided that it can not stop the government from proceeding at this point in time.
The applicant went to the Federal Court before the government had passed legislation. As a result, the court had no government decision to review! Courts can not pre-emptively decide on government actions that have not even been formalized. In my view, this was the correct result. One can not go to court over policy decisions before they are enacted in law.
Moreover, the court also held that the Minister of Immigration has no personal power over the processing of immigration applications. As such, the court could not compel the Minister to keep application files open as he has no power to do so in any event.
I believe there will certainly be a second court action once the legislation passes the House of Commons. At that point, the court can review the application and decide if it is contrary to law. In all likelihood, the arguments will be based on administrative law and natural justice – that the government can not deny applications that were accepted (and fees paid) in good faith.
However, if you are one of the 280,000 applicants waiting with baited breath for a decision from the courts to allow your application to proceed, I’m afraid you may be disappointed.
In my view, the courts will likely not find the legislation unlawful and will not force the government to process the applications. Courts are reluctant to interfere in what are clearly policy decisions of a government, clearly intended to improve the operation of the immigration system in future.
I hope I am wrong in this case and that those applicants who applied in good faith are processed. But if I had to bet, I’d say that unless the Minister of Immigration has a change of heart, the courts won’t stand in his way.