The first time I appeared before the Federal Court was almost 20 years ago. Things have changed -in terms of filing procedures, remote hearings and jurisprudence from the Supreme Court with respect to deference and the reasonableness standard.
Other things have not changed. One perennial issue is apparent divergence in the Court. That divergence is perhaps inevitable: one judge’s decisions do not bind another. One judge's threshold of “reasonableness” (invariably subjective despite the efforts of the Supreme Court) can vary from another's, and thus lead to different outcomes.
Thus, two cases with similar facts might have different outcomes, understandably leading to confusion or frustration for clients.
For example, prior to the amendment to the Citizenship Act, there was divergence in case law relating to the requirements for citizenship, such as the metaphysical test of where an individual's soul lies versus the strict physical presence test (“two feet on the ground” test). That divergence has now been put to rest with the strict physical presence now the black letter of the law.
While this divergence was apparent on some select matters in the past, one can speculate that the Federal Court has become further divided due to the influx of new faces on the bench, some of whom are former immigration lawyers. This has led to the development of divergent lines of jurisprudence in many major issues being litigated at the federal court.
To take two examples: there are problematic decisions made by officers regarding study permit applications, specifically regarding applicants from so-called Third World countries and refusals on work permits made by foreign nationals (often, and not surprisingly, also from so-called Third World countries).
This leads to an unfortunate lack of predictability in legal outcomes. Understandably clients crave certainty and clarity and pay not an inconsiderable amount of money to challenge decisions. However these are the vagaries of practicing and handling cases before the Federal Court. Compounding that uncertainty is the very distinct possibility of winning a case only for it to be refused again when it is sent back for reconsideration to the same visa office (albeit to a different visa officer).
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