Date:
20130207
Docket:
IMM-1294-12
Citation:
2013 FC 135
Ottawa, Ontario,
February 7, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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DORKA SOLOGUREN AGAMA
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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
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant was denied a permanent resident visa under the Skilled Workers Class
because her application fell outside the annual “cap” imposed by policy on this
class. This is the judicial review of that decision.
II. FACTS
[2]
In
the Ministerial Instructions, Canada Gazette, Vol 145, No 26
[Ministerial Instructions] of June 25, 2011, a maximum of 10,000 Federal
Skilled Worker applications, without offers of employment, would be considered
in the year.
[3]
Within
the 10,000 new Federal Skilled Worker applications, a maximum of 500
applications per National Occupation Classification [NOC] would be considered
for processing in each year.
[4]
In
calculating the cap, applications would be considered in the order in which
they were received.
The year for
purposes of the cap would begin July 1, 2011 and end June 30, 2012.
[5]
The
Applicant, a citizen of Peru, submitted an application for permanent residence
under NOC 0631 Food and Restaurant Manager.
[6]
On
the Respondent’s website, there would be a regular announcement of the number
of applications received by NOC category.
The Respondent
posted the following information on NOC 0631 applications:
•
September
28, 2011 – 209 applications
•
October
10, 2011 – 229 applications
•
November
3, 2011 – 330 applications
•
November
8, 2011 – 335 applications
[7]
The
Applicant filed her application on November 14, 2011. On December 1, 2011, the
website reported that the cap stood at 458.
[8]
On
January 13, 2012, the Applicant was informed that her application was rejected
because the cap of 500 applications for NOC 0631 had been reached.
[9]
The
Respondent’s evidence is that there is a normal lag time between the time an
application is received, reviewed for completeness and the update on
applications is posted to the website. The Respondent says that it is not
possible to give real-time results and that the website says that the figures
provided are a guide only.
[10]
The
maximum 500 applications for NOC 0631 were reached September 19, 2011.
[11]
The
Applicant’s position is that there has been a breach of the principles of
fairness in failing to announce when the cap was reached, by leading the
Applicant to believe that the cap had not been reached, by creating a
legitimate expectation that the cap was not reached and in failing to
effectively implement the Ministerial Instructions.
[12]
The
central issue in this judicial review is whether there was a breach of
procedural fairness.
III. ANALYSIS
[13]
The
standard of review of questions of procedural fairness is correctness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339).
[14]
The
legitimate expectation that the Applicant had was that if her application fell
within the first 500 applications, she would be considered for permanent residence.
[15]
The
evidence does not establish that the Applicant had a legitimate expectation
that the number of applications received by any specific date would be
absolutely accurate as of that date.
[16]
There
is no evidence that the cap was not reached on September 19, 2011, at which
time the Applicant had not yet filed her application. There is no suggestion
that the Applicant held off filing her application in reliance on the
understanding that the cap would not be reached for some considerable period.
[17]
Once
the cap was met and the Applicant had not filed her application in advance, any
legitimate expectation had been met.
[18]
There
is nothing to suggest that the number of applications posted on the website was
true, accurate and complete such as to create a legitimate expectation in the
accuracy of the number.
[19]
By
way of comment, the Court is concerned that it is not absolutely clear that the
date on which an application is considered received for purposes of the cap is
the date the application is considered “complete” not merely “received”. In
other words, are incomplete applications given a priority date as “received” or
is it only completed applications which achieve that time status? While this
case does not turn on nor is it impacted by this possible confusion, there must
be clarity brought to this situation.
[20]
In
applying the fairness principle, it is relevant in this case to look at the
impact of the Applicant’s position vis-à-vis others. All those persons who
filed after September 19, 2011 but before the Applicant would have just as
legitimate complaint as the Applicant. Since they were prior in filing time,
their applications would have priority over the Applicant.
[21]
Even
if there was some basis for the Applicant’s position, it would not be equitable
to grant relief without addressing the situation of these other applicants.
IV. CONCLUSION
[22]
Therefore,
this application for mandamus must be dismissed.
[23]
There
is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for mandamus is
dismissed.
“Michael L. Phelan”
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