Docket:
IMM-11196-12
Citation: 2014 FC 90
Ottawa, Ontario, January 24, 2014
PRESENT: The Honourable Madam Justice Heneghan
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BETWEEN:
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LIN TSUNG KUN
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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
INTRODUCTION
[1]
Mr. Lin Tsung Kun (the “Applicant”) brought an
application for judicial review relative to a decision of a Visa Officer (the
“Officer”), denying his application for permanent resident status under the
Federal Skilled Worker (the “FSW”) class pursuant to the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) and the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”).
[2]
In his application for judicial review the
Applicant seeks the following relief:
1. An order for a writ of certiorari quashing the decision of the visa
officer dated October 8, 2012, first communicated in writing to the applicant
on October 15 2012, refusing the Applicant’s Application for permanent
residence in Canada;
2. An Order for a Writ of Mandamus directing that the Respondent
considers and processes the Applicant’s application for permanent residence in
Canada in accordance with the Immigration Refugee Protection Regulations, to
wit:
i
The Applicant’s “permanent residence”
application, be re-assessed at a different visa office, or by a different visa
officer, or both, including an interview with the applicant if deemed necessary
for the successful processing of said application;
ii
In the event the respondent develops concerns
with respect to the applicant’s application, the respondent apprise the
applicant of such concerns in such a way as to afford the applicant an
opportunity to disabuse the respondent of such concerns.
3. The costs of this application;
4. Such other relief as this Honourable Court may deem just and
equitable in the circumstances such as an order for the above rendered nunc
pro tunc to before March 29 2012.
BACKGROUND
[3]
The Applicant is a male citizen of Taiwan. He applied for permanent resident status on June 1, 2007 under the FSW class.
He included his wife and two children as accompanying family members.
[4]
The Applicant was informed by letter dated
February 9, 2012 that his application was ready to be assessed. He was asked to
provide updated application forms and supporting information.
[5]
By another letter dated April 17, 2012, the
Applicant was advised that changes had been made concerning the processing of
FSW applications. Applications that had been received prior to February 27,
2008 for which no selection decision had been made would not be processed. He
was told to ignore the request to provide “full application forms and
supporting documentation”.
[6]
By further letter dated May 23, 2012, the
Applicant was told that due to changed instructions, the proposed changes
regarding FSW would not be in effect until the amendments became law.
Accordingly, the visa office would continue to process applications until the
coming into force of the amended provision of the Act. The Applicant was
informed that he could continue to perfect his application.
[7]
The applicant’s file was reviewed and an entry
was made in the Global Case Management System (the “GCMS”) on June 4, 2012
indicating that he had met the selection criteria.
[8]
By email communication dated August 8, 2012, the
Applicant was advised that the proposed changes to the Act, concerning FSW
applications, had come into force on June 29, 2012. New section 87.4 provided
that applications that were undecided prior to March 29, 2012 were terminated
by operation of law and would not be processed. The email also advised that one
bank draft submitted by the Applicant was not signed and therefore was not
accepted as payment of his application fees.
[9]
The Applicant sent another bank draft that was
received on August 23, 2012.
[10]
Under cover of a letter dated October 8, 2012,
the two bank drafts were returned to the Applicant. This letter also advised
that his application for permanent residence had been terminated by operation
of law.
[11]
The new provision is section 87.4 of the Act
which provides as follows:
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Federal
Skilled Workers
Application made
before February 27, 2008
87.4 (1) An application by a foreign
national for a permanent resident visa as a member of the prescribed class of
federal skilled workers that was made before February 27, 2008 is terminated
if, before March 29, 2012, it has not been established by an officer, in
accordance with the regulations, whether the applicant meets the selection
criteria and other requirements applicable to that class.
Application
(2) Subsection
(1) does not apply to an application in respect of which a superior court has
made a final determination unless the determination is made on or after March
29, 2012.
Effect
(3) The fact
that an application is terminated under subsection (1) does not constitute a
decision not to issue a permanent resident visa.
Fees returned
(4) Any fees
paid to the Minister in respect of the application referred to in subsection
(1) — including for the acquisition of permanent resident status — must be
returned, without interest, to the person who paid them. The amounts payable
may be paid out of the Consolidated Revenue Fund.
No recourse or
indemnity
(5) No
person has a right of recourse or indemnity against Her Majesty in connection
with an application that is terminated under subsection (1).
2012, c. 19, s.
707.
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Travailleurs
qualifiés (fédéral)
Demandes
antérieures au 27 février 2008
87.4 (1) Il est mis fin à toute
demande de visa de résident permanent faite avant le 27 février 2008 au titre
de la catégorie réglementaire des travailleurs qualifiés (fédéral) si, au 29
mars 2012, un agent n’a pas statué, conformément aux règlements, quant à la
conformité de la demande aux critères de sélection et autres exigences
applicables à cette catégorie.
Application
(2) Le
paragraphe (1) ne s’applique pas aux demandes à l’égard desquelles une cour
supérieure a rendu une décision finale, sauf dans les cas où celle-ci a été
rendue le 29 mars 2012 ou après cette date.
Effet
(3) Le fait
qu’il a été mis fin à une demande de visa de résident permanent en
application du paragraphe (1) ne constitue pas un refus de délivrer le visa.
Remboursement de
frais
(4) Les
frais versés au ministre à l’égard de la demande visée au paragraphe (1),
notamment pour l’acquisition du statut de résident permanent, sont
remboursés, sans intérêts, à la personne qui les a acquittés; ils peuvent
être payés sur le Trésor.
Absence de
recours ou d’indemnité
(5) Nul n’a
de recours contre sa Majesté ni droit à une indemnité de sa part relativement
à une demande à laquelle il est mis fin en vertu du paragraphe (1).
2012, ch. 19,
art. 707.
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[12]
Neither party has addressed the applicable
standard of review. The Minister of Citizenship and Immigration (the
“Respondent”) submits that no reviewable decision was made on the Applicant’s
application and he is not entitled to an order of mandamus.
[13]
In Liu v. Canada (Citizenship and
Immigration), 2014 FC 42, a case paralleling the present matter respecting
both the facts and the legal issues, Justice Phelan said at paragraph 14 that
the issue raised is “primarily one of law, directed at the limits of the
operation of the visa process and goes to the legal core of the Act process.”
He said that the “interpretation of the law in this case is one for the Court
on the basis of correctness”.
[14]
I agree with that statement but add that the
application of the law to the facts raises a question of mixed law and fact
reviewable on the standard of reasonableness; see Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9.
SUBMISSIONS
The
Applicant
[15]
The Applicant argues that there is ambiguity in
subsection 87.4(1) arising from the words “selection criteria”. He submits that
those words are used many times in the Act and that ambiguity arises from the
absence of words indicating a time-frame within which the “selection criteria”
were assessed.
[16]
The Applicant further submits that ambiguity in
the legislation may give rise to a breach of natural justice by a
decision-maker, relying in this regard upon the decision of the Supreme Court
of Canada in Ocean Port Hotel Ltd. v. British Columbia (General Manager,
Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781 at paragraph 21.
[17]
The Applicant also argues that if his
application was terminated by operation of law, it must have been founded upon
the fact that a selection decision has been made. The entry in the GCMS for
June 4, 2012 shows that a positive selection decision was made on that day. In
the circumstances, the Applicant pleads that the Respondent should be ordered
to continue processing his application.
The Respondent
[18]
The Respondent takes the position that the
legislation clearly states that if a pre-February 27, 2008 application for
permanent residence in the FSW class had not been decided by March 29, 2012,
the application was effectively terminated pursuant to the application of
subsection 87.4(1).
[19]
Although the Respondent acknowledges that a
“selection decision” was made on June 4, 2012, he submits that this is only
part of the process leading up to a “decision” on an application as a member of
the FSW class.
[20]
He argues that the language of subsection 87.4(1)
has been recently considered by the Federal Court and found to be a legitimate
exercise of parliamentary authority in the domain of immigration, referring to
the decisions in Tabingo v. Canada (Minister of Citizenship and Immigration)
(2013), 362 D.L.R. (4th) 166 and Liu, supra.
DISCUSSION
AND DISPOSITION
[21]
The Applicant seeks both a writ of certiorari
quashing the Officer’s decision dated October 8, 2012, as well as an order of mandamus
compelling the Respondent to process his application for permanent residence.
[22]
Insofar as a “decision” was made, it is
reviewable on this standard of reasonableness since it involves a question of
mixed fact and law.
[23]
I am satisfied from the certified tribunal
record (the “CTR”) that a decision was made; see the GCMS entry of June 4, 2012.
However, this “selection decision” was but an intermediate step in the
processing of the Applicant’s application for permanent residence.
[24]
In general, intermediate or interlocutory
decisions are not subject to judicial review; see the decision in C.B.
Powell Limited v. Canada (Border Services Agency), [2011] 2 F.C.R. 332 at
paragraph 31. The selection decision is not amenable to judicial review and the
remedy of quashing that decision is not available.
[25]
Dealing now with the remedy of mandamus,
I refer to the test set out in Apotex Inc. v. Merck & Co. and Merck
Frosst Canada Inc. (1993), 162 N.R. 177. That test sets out a number of
factors that must be established before such relief will be granted, as
follows:
1. There must be a public legal duty to
act;
2. The duty must be owed to the
applicant;
3. There is a clear right to performance
of that duty, in particular:
(a) the applicant has satisfied all
conditions precedent giving rise to the duty:
(b) there was:
(i) a prior demand for performance of
the duty;
(ii) a reasonable time to comply with
the demand unless refused outright; and
(iii) a subsequent refusal which can be
either expressed or implied, e.g. unreasonable delay;
4. Where the duty sought to be enforced
is discretionary, the following rules apply:
(a) in exercising a discretion, the decision-maker
must not act in a manner which can be characterized as "unfair",
"oppressive" or demonstrate "flagrant impropriety" or
"bad faith";
(b) mandamus is unavailable if the
decision-maker's discretion is characterized as being "unqualified",
"absolute", "permissive" or "unfettered";
(c) in the exercise of a "fettered"
discretion, the decision-maker must act upon "relevant", as opposed
to 'irrelevant", considerations;
(d) mandamus is unavailable to compel the
exercise of a "fettered discretion" in a particular way; and
(e) mandamus is only available
when the decision-maker's discretion is "spent"; i.e., the applicant
has a vested right to the performance of the duty.
5. No other adequate remedy is available
to the applicant;
6. The order sought will be of some
practical value or effect;
7. The court in the exercise of its
discretion finds no equitable bar to the relief sought;
8. On a "balance of
convenience" an order in the nature of mandamus should (or should
not) issue.
[26]
The first element is the existence of a general
public legal duty to act. In broad terms, the Respondent is subject to such a
duty for he is responsible for the administration of the Act relative to the
admission of immigrants and refugees to Canada.
[27]
Insofar as the Applicant is seeking admission
into Canada he is entitled to fair treatment as the Respondent generally discharges
his duties in the administration of the Act.
[28]
However, in my opinion the Applicant cannot meet
the requirements of the third and fourth elements. There is no evidence that he
had a “clear right to performance of the duty” or that he has established
particular aspects of a “clear right to performance”.
[29]
As stated by the Supreme Court of Canada in Chiarelli
v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 at
paragraph 24, no one other than a Canadian citizen or permanent resident has an
unqualified right to enter Canada. That being so, the Applicant cannot show
that he is entitled to a positive decision upon his application for permanent
resident status.
[30]
The Applicant faces the same problem concerning
the fourth element, that is the exercise of discretion. The Respondent is
entitled to exercise discretion, informed by the Act and the Regulations, in
deciding to issue permanent resident visas. In the present case, the process
was halted when the Parliament of Canada amended the Act with the introduction
of subsection 87.4(1).
[31]
It is not necessary for me to address the
remaining elements of the test for the remedy of mandamus. This
remedy is not available to the Applicant because he has not met the applicable
test.
[32]
If there is a question of statutory
interpretation raised in the case, as to the meaning of subsection 87.4(1), I endorse
the approach taken by my colleague Justice Rennie in Tabingo, supra, when
he said the following at paragraphs 19 and 20:
19 The modern approach to statutory interpretation is
set out by E. A. Driedger in Construction of Statutes (2nd ed. 1983), p
87: '...the words of an Act are to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the
object of the Act, and the intention of Parliament.' As a corollary to this,
when the language of the statute is precise and unequivocal, the ordinary
meaning of the words plays a dominant role in the interpretive process: Celgene
Corp v Canada (Attorney General), 2011
SCC 1, [2011] 1 S.C.R. 3, para 21.
20 Section 12
of the Interpretation Act, RSC 1985, c I-21 also instructs that:
12. Every enactment is deemed remedial, and shall be given such
fair, large and liberal construction and interpretation as best ensures the
attainment of its objects. 12. Tout texte est censé apporter une solution de droit et s'interprète de
la manière la plus équitable et la plus large qui soit compatible avec la
réalisation de son objet.
[33]
Applying these principles, I conclude that the
“grammatical and ordinary sense” of the language used in subsection 87.4(1) of
the Act demonstrates that the Parliament of Canada introduced a means of
terminating applications for permanent resident status in the FSW class that
had been received before a specific date, that is February 27, 2008, and had
not been decided before another specific date, that is March 29, 2012.
[34]
This interpretation is consistent with the
scheme of the Act; that scheme is to regulate the admission of immigrants and
refugees into Canada. This interpretation is also consistent with the objects
of the Act, as set out in section 3 of the Act.
[35]
Finally, this interpretation is consistent with
the intent of Parliament. Parliament enjoys jurisdiction over immigration
pursuant to subsection 91(25) of the Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3 reprinted in R.S.C. 1985, App. II, No. 5. As such, it has the
authority to enact legislation regarding immigration and to change former
processes and proceedings. No one enjoys a vested right in the law remaining
the same; see the decision in Gustavson Drilling (1964) Ltd. v. Canada (Minister
of National Revenue), [1977] 1 S.C.R. 271. This principle was applied in
the immigration legal context in McAllister v. Canada (Minister of
Citizenship and Immigration) (1996), 108 F.T.R. 1.
[36]
In oral argument, the Applicant raised the issue
of ambiguity of the challenged legislation. He relies on the decision in Ocean
Port Hotel, supra to argue that ambiguity in the statutory language can
give rise to a breach of natural justice.
[37]
In my opinion, there is no ambiguity in the
legislation and accordingly, no issue of a breach of natural justice.
[38]
The Applicant seeks costs. Pursuant to section
22 of the Federal Courts Immigration and Refugee Protection Rules,
SOR/93-22, costs may only be awarded in immigration judicial review proceedings
where the Court finds special reasons for doing so. In my opinion, no such
special reasons exist in this case. No costs will be awarded.
[39]
Finally, there is the question proposed by the
Applicant for certification pursuant to subsection 74(d) of the Act. The
Applicant has submitted the following question for certification:
Is the phrase
“selection criteria” contained in subsection 87.4(2) [sic] ambiguous,
consequently rendering the termination provision within subsection 87.4(1) of
the [Act] not in accordance with the principles of natural justice?, and if so,
is the applicant entitled to mandamus?
[40]
The Respondent opposes certification on the
grounds that the question is not dispositive of this application.
[41]
The test for certifying a question is set out in
Zazai v. Canada (Minister of Citizenship and Immigration) (2004), 318
N.R. 365 at paragraph 11, that is whether there is “a serious question of
general importance which would be dispositive of an appeal”.
[42]
I have reviewed the submissions of the
Respondent on the proposed question for certification, as well as the reply
submissions filed by the Applicant.
[43]
I agree with the submissions of the Respondent.
The proposed question would not be dispositive of this application and no
question will be certified.
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