It will be a difficult task fighting immigration decisions in Canada’s Federal Court for people with precarious status, advocates say

Two prominent advocacy groups are alarmed by recent court decisions that, they say, set precedents for public interest organizations in joining litigations as parties. They believe these rulings threaten the access to justice for marginalized people who already face barriers to the judicial system.

 

In separate, unrelated cases, the Canadian Council for Refugees and the HIV Legal Network lost standing for not first seeking permission from the Federal Court to join individuals in lawsuits against Ottawa, instead “unilaterally” presenting themselves as parties.

 

“These two rulings are very surprising because they are anomalous,” Gauri Sreenivasan, co-executive director of the refugee council, said.

 

Janet Butler-McPhee, co-executive director of the HIV network, added: “Our worry is not just for the case, but for the tone that’s set moving forward for organizations like ours that are interested in promoting and protecting the rights of people who may not have other ways to have those rights promoted are protected.”

 

Advocacy groups often participate in important individual cases as either a party or intervener, but there’s a difference in the levels of engagement between those roles. Parties have greater power to marshal evidence, file affidavits, cross-examine witnesses and develop arguments in supporting the individual litigants.

Courts generally welcome inputs from these bodies for their expertise and additional evidence on a particular issue to make more informed decisions.

 

It’s not uncommon for government lawyers to resolve individual cases and have the public interest parties removed to avoid having to deal with the bigger issues involving a policy or law. The question of public interest standing is usually decided at the actual hearing of the case.

 

What’s novel in the recent decisions, advocates say, is the suggestion that these groups would need to bring a motion from the get-go for permission to join the action.

 

“The court is adding extra hurdles to the process,” said Sreenivasan, whose organization has had public interest standing in multiple cases by just putting its name on a legal notice. “It’s not something we do weekly. We only choose some very key issues (to challenge).”

 

The refugee council was a party in the case of Jude Upali Gnanapragasam, who fled Sri Lanka and was granted asylum in Canada in 1989. They claimed his constitutional rights were violated after the federal government stripped him of his protected person status – and possibly permanent residence – for returning to his home country 10times between 1999 and 2019 to attend funerals, family weddings and to participate in religious pilgrimages.

 

The matter was later resolved because he met an exemption and was able to maintain his permanent residence. Yet, in order to declare the case moot, the court granted the government’s request to strike the refugee council as a party.

 

Justice Henry Brown said he’s not convinced the advocacy group had the rights “to confer upon itself party status as of right and thereby avoid the Court’s undoubted supervisory jurisdiction and authority to determine whether and in what manner non-parties may appear before the Court.”

“Notably, CCR did not seek leave to obtain status in this Court in the alternative, giving the Court no option but to dismiss,” Brown wrote in an order in May.

 

Sreenivasan said advocates have been concerned about the automatic loss of permanent residence for former refugees who “re-avail” themselves to the country of persecution and have protection status ceased by Canada since the previous Conservative government changed the law in 2012 to crack down on asylum fraud.

 

“It’s unconscionable when the reasons for a return to an original country of origin can be as human and as important as attending a funeral or visiting a sick relative,” she explained.

 

“We are challenging that at the courts because of the massive consequence for refugees. And we’re doing it as a public interest party for an incredibly important reason.”

 

The HIV Legal Network was involved in an ongoing constitutional challenge by an international student named in court documents as R.A., who was refused a study permit extension on the grounds that his health condition might cause an excessive demand on Canada’s health or social services.

 

In pleading with the court to remove the advocacy group, the government agreed to reconsider R.A.‘s study permit extension application but argued that public interest organizations should be discouraged from just adding their names to litigations.

 

“It is not directly affected and has not brought a motion, let alone satisfied the test, for public interest standing,” the government contended in its motion records. “There is already a directly affected party before this Court.”

 

In an order released in September, Justice Brown cited his own decision on the refugee council in the above case in revoking the HIV Legal Network’s standing.

 

“The HIVLN had and has no right to be added as a party by acting unilaterally as it has chosen to do, and did not become a proper party in this proceeding,” the judge wrote.

 

Harini Sivalingam of the Canadian Civil Liberties Association said she’s concerned about the shrinking space for public interest organizations being granted standing in important cases that affect the rights and freedoms of marginalized and vulnerable groups.

 

“These rules have been previously accepted by the courts on multiple occasions,” said the association’s equity program director. “These public interest parties haven’t done anything that hasn’t been done before and accepted by the court before.”

 

The HIV Legal Network said it is evaluating its next steps to continue to support the challenge.

 

 

 

 

This article was first reported by The Star