Palestinians in Gaza who applied to join relatives in Canada two years ago under Ottawa’s crisis immigration policy but haven’t received travel visas lost their lawsuits trying to force officials to act despite security problems in the war-torn region.
Four similar court actions asked the Federal Court to order officials with Immigration, Refugees, and Citizenship Canada (IRCC) to process their temporary resident visa applications.
Justice Henry S. Brown said the stories of applicants in Gaza were “heartbreaking” but he could not issue the orders they sought.
The court cases stem from Ottawa’s announcement of a “temporary public policy to facilitate temporary resident visas for certain extended family affected by the crisis in Gaza,” which took effect on Jan. 9, 2024.
It was supposed to provide quick refuge for Palestinians with relatives who are either Canadian citizens or permanent residents and willing to be an “anchor relative” in Canada.
The Gaza policy was capped at 5,000 visas. Court heard that almost two years later there are about 4,200 unprocessed applicants.
The policy was similar in purpose to emergency policies for Ukrainians fleeing Russia’s invasion, Afghans fleeing the Taliban’s return to power, and those in danger zones after an earthquake in Türkiye and Syria. The policies remove some criteria normally needed to enter Canada to speed things up in a crisis.
In the policy for Gaza, the government exempted applicants from needing to prove their financial stability and that they would leave Canada at the end of their authorized stay.
Because of the similar nature of the court cases, portions of the decisions are replicated in each decision, all of which were decided by Brown. The last three decisions were released Wednesday.
The four cases represent 10 Gazan residents. The names of each of the visa applicants in the cases was anonymized by the court.
One case involves a family of five — a mother, father, and three children. Court heard they were living in one room in their partially destroyed home in Gaza City with rats and exposed to the rain due to damage to their roof.
Another family is a mother, father and their young son. Court heard they left their home in the Gaza Strip the day after the Oct. 7, 2023 attacks by Hamas on Israel from Gaza, and have been displaced several times while other family members have died in bombings.
A third case involves a Palestinian man living in the Gaza Strip. Court heard that after October 7 he was unable to continue his studies and lost his job and later his home. A court case heard in September was for a Palestinian woman living in Gaza City who said her house was flattened by a bomb, leaving her without shelter, food or water.
Court heard the special immigration policy was a three-stage process, starting with an anchor relative in Canada completing forms, then submitting documentary proof of identification, status in Canada, and other information; next documents for their Gazan kin seeking visas needed uploading.
Once Canadian immigration officials confirm an applicant is eligible, the policy process states, the applicant’s names are forwarded to the Israeli and Egyptian governments to allow access to the Rafah border crossing to provide Canada their biometric information at a collection facility, court heard. That includes fingerprinting and photographs. The border crossing was needed because there is no Canadian collection facility in Gaza.
That last stage became impossible, court heard.
In the case of the male applicant, used as an example in court, his anchor relative submitted a crisis webform on Jan. 14, 2024, and was approved for processing four days later.
Four months after the application, an entry was made in the immigration case management system noting that he had met all requirements except his security screening and biometrics, meaning his eligibility had been approved but his admissibility was pending.
IRCC officials requested more information in December 2024, including about social media accounts, which was provided the next day, court heard. Everything was in place but biometrics that are done across the border.
“While this was possible in December 2023 when the Policy was issued, the Rafah crossing was closed on May 7, 2024, and remains closed to this day,” Brown wrote in his reasons for judgment. “Therefore, the Applicant — through no fault of his own or of IRCC — has not obtained or sent his biometrics.”
Brown said lawyers for both the applicants and for the government are right, in a way.
He agreed with the applicants that the government has a legal duty to process visa applications made under the policy. He also agreed with the government that officers did not have a duty to process applications within a particular timeframe.
“I am satisfied the Applicant has a legitimate expectation to his application being dealt with in a timely manner. However, this expectation only arises when the Applicant meets all the conditions of the Policy and provides biometric information (which he is unable to do),” Brown wrote.
Brown found that Canada’s policy did not allow visa officers to override other regulations on immigration, and those regulations require a biometric check. The government argued that Ottawa has a duty to maintain the integrity of Canada’s immigration system and Brown agreed.
“The root cause of the Applicant’s failure to provide his biometric data is of course the changed operational context, namely the closure of the Rafah crossing which made obtaining and submitting biometrics impossible.”
He said because of that, the applicants did not meet the threshold for a court order forcing the government to act because that required all elements of a process to be complete before unreasonable delay can be determined.
All cases were denied.
The outcome disappoints Hana Marku, a lawyer who represents some of the visa applicants.
“Canada’s behaviour throughout its rollout of its own policy has been utterly cruel,” Marku said afterwards. “Canada has no serious intention of providing safe refuge to Palestinians. This is why we sought justice from the court…. The Federal Court has given the government a pass to do nothing while Palestinian visa applicants in the Gaza Strip face death and starvation.”
Jeffrey MacDonald, a spokesman for IRCC, declined to comment on the specific cases citing privacy considerations, but said the delay in processing the visas is beyond the Canada’s control.
“Canada is deeply concerned about the situation in Gaza,” MacDonald said. “Everyone must meet Canada’s legal requirements before travelling, including security and biometric checks, where required. Biometrics can only be done outside Gaza, as Canada has no presence there. While we continue to advocate for the safety of those in Gaza, Canada does not ultimately determine who can leave Gaza.”
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