Date:
20120523
Docket:
IMM-4032-12
Citation:
2012 FC 626
Ottawa, Ontario, May 23, 2012
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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PREET DEEP SINGH DATTA
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR ORDER AND ORDER
[1]
This
is a motion brought in writing by Preet Deep Singh Datta seeking injunctive
relief against the Minister in the following form:
1. an order enjoining the
respondent so long as this matter remains sub judice from closing the
applicant’s federal skilled worker (FSW) application without having first
conducted a bona fide assessment; [and]
2. an order enjoining the
respondent from refusing the applicant’s FSW application by assessing it under
selection criteria and a pass-mark not in place at the time the respondent
received and accepted full consideration for the processing of his FSW
application under the current selection and pass-mark; . . .
Mr. Datta also purports to
seek identical injunctive relief on behalf of several hundred other applicants
who have applied for mandatory prerogative relief in this Court in connection
with their outstanding applications for permanent residency.
[2]
Although
it is not expressly articulated in Mr. Datta’s motion materials, he is
seeking an injunction to prevent the Minister from acting on proposed
legislation entitled Bill C-38, Jobs, Growth and Long-Term Prosperity Act,
(Bill C-38) which, if passed, may summarily terminate his skilled worker visa
application.
Background
[3]
According
to Mr. Datta’s affidavit, in 2004, he and his wife applied for permanent
residency in Canada. Mr. Datta sought entry as a member of the skilled
worker class. His application appears to have languished until 2008 when he
was asked to submit updated documentation. Based on operational advice
published by the Minister, Mr. Datta understood that his application
should have been assessed by November 2008; however, it was not and his
application remains outstanding and unresolved.
[4]
Most
of the remainder of Mr. Datta’s affidavit is argumentative, opinionated, disparaging
and in, several places, inflammatory. It is also full of hearsay seemingly lifted
from publically available sources but having no obvious evidentiary value on a
motion for interim injunctive relief. The affidavit of Pantea Jafari also
contains very little persuasive or relevant evidence and concerns itself mainly
with arguments about the wisdom of the Minister’s immigration policies.
Issue
[5]
Is
the Applicant entitled to interim injunctive relief against the Respondent?
Analysis
[6]
In
order to obtain an interim injunction, there must be something to enjoin.
There must also be a serious issue to be resolved and irreparable harm to Mr. Datta.
Finally, the balance of convenience must favour Mr. Datta: see Toth v Canada
(MEI), [1988] FCJ no 587, 86 NR 302 (CA); and RJR-MacDonald Inc. v
Canada (AG), [1994] 1 S.C.R. 311 at para 43, [1994] SCJ no 17 (QL).
[7]
I
agree with counsel for the Respondent that this motion is devoid of merit
because it is premature and speculative. Bill C-38 is currently before
Parliament and has yet to receive second reading. There is no certainty that
Parliament will enact Bill C-38 in its present form or in some other form that
might be legally objectionable: see Federation of Saskatchewan Indian Nations
v Canada, 2003 FCT 306 at para 22; [2003] 2 CNLR 131. . Accordingly,
nothing has yet occurred that is prejudicial to Mr. Datta’s visa application
moving forward to a conclusion and there is nothing to enjoin. As the Supreme
Court of Canada observed in Re: Resolution to amend the Constitution,
[1981] 1 S.C.R. 753 at p 785, [1981] SCJ no 58 (QL), “[c]ourts come into the
picture when legislation is enacted and not before”. To the same effect is the
decision of Justice Andrew Mackay in Federation of Saskatchewan
Indian Nations, above, at para 22.
[8]
Notwithstanding
Mr. Datta’s failure to articulate an issue worthy of argument, I am
prepared to accept that a serious issue may exist arising out of the
Respondent’s failure to process Mr. Datta’s file for the past eight
years. As things presently stand, this failure might support a claim to
mandatory relief. However, it is a dubious argument that any contractual
obligation has been created in these circumstances and, even if there was such
an obligation, there is no legal impediment to Parliament extinguishing such a
right if it so decides.
[9]
Mr. Datta
has failed to establish irreparable harm. His claim to harm rests on a
supposition that his file will not be processed because it may be legislatively
abolished before it is considered on its merits. According to Mr. Datta,
this would render an order for mandamus pointless. This argument similarly
rests on speculation and speculation does not constitute irreparable harm: see
Canada (AG) v United States Steel Corp, 2010 FCA 200 at para 7, [2010]
FCJ no 902 (QL) and Canadian Society of Immigration Consultants v Canada (MCI), 2011 FC 669 at para 28, 391 FTR 100. It is also not obvious that the
Court would be powerless to do justice between the parties in the face of some
unlawful act or unconstitutional legislation.
[10]
The
Minister also asserts that Mr. Datta’s claim to injunctive relief is
fundamentally flawed because to enjoin the Minister in the manner proposed
would represent improper judicial interference with the business of the
legislative branch of government and with the corresponding duty of the
Minister to follow and enforce the law. Inasmuch as there may be similar
motions presented to the Court if the proposed federal legislation is enacted
in its present form, I will not attempt to resolve this point on this record.
There is, however, one point that is worthy of comment. Counsel for
Mr. Datta says that the relief he seeks would not interfere with
Parliament’s right to enact Bill C-38. He simply wants to stop the Minister
from acting on the legislation once it is proclaimed. As I read the proposed
legislation, the Minister has no residual administrative role or discretion
with respect to the affected files. Those files are simply terminated by
operation of law. In that context, there is no apparent act that the Minister
can be enjoined from performing. Notwithstanding counsel’s disclaimer, he is effectively
proposing that the Court stay the implementation of a law that has yet to be proclaimed
by Parliament. Suffice it to say that there are significant legal issues with
respect to the justiciability of such a claim to relief.
[11]
For
the foregoing reasons, this motion is dismissed with costs payable forthwith to
the Respondent in the amount of $750.00 inclusive of disbursements.
ORDER
THIS
COURT ORDERS that this motion is dismissed with costs
payable forthwith to the Respondent in the amount of $750.00 inclusive of
disbursements.
"R.L.
Barnes"
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