Docket:
IMM-3431-13
Citation: 2014 FC 42
Ottawa, Ontario, January 15, 2014
PRESENT: The Honourable Mr. Justice Phelan
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BETWEEN:
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LI KANG LIU
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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]
This is a judicial review by way of mandamus
concerning an application for a visa under the Federal Skilled Worker [FSW]
class. The visa application was deemed terminated by retrospective legislation,
set out in s 87.4 of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA].
The
Applicant claims that he received a positive selection decision (that he
qualified in respect of his occupation) and was entitled to a visa.
[2]
The critical provision of IRPA reads as follows:
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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.
(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.
(3) The fact that an application is
terminated under subsection (1) does not constitute a decision not to issue a
permanent resident visa.
(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.
(5) No person has a right of recourse or
indemnity against Her Majesty in connection with an application that is
terminated under subsection (1).
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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.
(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.
(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.
(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.
(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).
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Royal Assent – June 29, 2012
II. BACKGROUND
[3]
The Applicant, his spouse and child applied for
permanent resident visas under the FSW class before February 27, 2008.
[4]
As of March 29, 2012, there was no conclusion
that the Applicant met the selection criteria or “other requirements applicable
to the class” as the phrase appears in s 87.4(1).
[5]
By way of background to s 87.4, it is important
to note that in February 2008, IRPA was amended by s 87.3 which authorized the
Minister to issue Ministerial Instructions regarding the priority under which
visa applications could be processed.
The
Ministerial Instructions are a means to provide for a triage of applications
according to revised eligibility criteria, including the establishment of
categories of applicants and quotas.
[6]
On March 29, 2012, the Minister proposed an
amendment to IRPA under Bill C-38. The amendment introduced in s 87.4.
[7]
Shortly after Bill C-38 (which contained s 87.4)
was introduced in Parliament, the Minister issued Operational Bulletin 400 instructing
that as of March 29, 2012, processing should not commence or continue for a FSW
visa application received before February 27, 2008 for which a selection
decision had not been made before March 29, 2012.
[8]
Operational Bulletin 400 was rescinded. The
Minister subsequently issued Operational Bulletin 413 on April 27, 2013
instructing to continue processing all FSW applications until Bill C‑38
came into force – which it did on June 29, 2012.
[9]
On June 21, 2012, an officer of the Respondent
determined that the Applicant met the selection criteria for his occupation. He
was instructed to complete the medical examinations and pay the requisite fees.
In addition, there was also the matter of the criminal record admissibility to
be concluded.
[10]
The medical evidence was submitted on June 29,
2012. It is not clear from the record when the medical and criminality review
were completed by officials although July 16, 2012 appears to be the most
probable date that the medical evidence was approved.
[11]
The Applicant’s visa application was returned to
him in October 2012 on the grounds that the application was terminated by
operation of law.
[12]
The Applicant’s principal position is that once
he had received the selection decision, his visa application was essentially
complete. It therefore was complete before s 87.4 became legally effective.
The
Respondent’s position is that since no final decision on the visa application
itself was made, the application was terminated by law as of June 29, 2012.
III. ANALYSIS
[13]
The real issue in this judicial review is
whether a selection decision made before June 29, 2012 is sufficient to prevent
termination by s 87.4 of the Applicant’s visa application.
[14]
The issue is primarily one of law, directed at
the limits of the operation of the visa process and goes to the legal core of
that process. This is not an area in which a visa officer has any expertise nor
one in which an official of the executive branch of government should be able
to decide the legal limits of the statute which governs him. The interpretation
of the law in this case is one for the Court on the basis of correctness.
[15]
The process of approving a visa application has
many moving parts – the determination that a person qualifies in the
occupational category is but one part but an important part. The final step,
after the consideration of occupational qualifications, medical evidence and
the other requirements under s 11 IRPA, is the decision of the visa officer to
grant the visa.
[16]
On the facts of this case there is no question
that the decision to grant a visa was not made on March 29, 2012 or even on
June 29, 2012 nor were the requirements for a visa substantially met by any of those
dates.
[17]
The Applicant’s application was for a visa, not
just a selection decision, and until the visa decision was made or could have
been made, the matter of meeting the applicable requirements had not been
concluded.
[18]
With respect to the Applicant’s principal
argument that a selection decision was sufficient to meet the statutory
requirements to prevent termination of the visa process, I cannot agree.
Section
87.4 is clear that meeting the selection criteria is but one of the
requirements to secure a FSW visa. Compliance with all requirements applicable
to the FSW class must be met. On the facts those requirements were not met on
either March 29, 2012 or June 29, 2012.
[19]
Further, s 87.4 is clearly intended to have
retrospective effect. While there is an interpretative principle against
retrospective or retroactive legislation, there is no absolute legal impediment
to such legislation where the words clearly set out that intent. It is common
in other legislation, such as income tax changes, that amendments be effective
from the date the legislation is tabled in Parliament although Royal Assent may
follow at a much later date.
[20]
Retrospective legislation may create real or
perceived inequities; however, where Parliament clearly lays out that intent,
any issue of unfairness of the legislation is more properly addressed in the
political/electoral process than the judicial process.
[21]
The operation of s 87.4 was well described in Shukla
v Canada (Minister of Citizenship and Immigration), 2012 FC 1461, 423 FTR
86, at paras 26-28 and 42:
26 It is common
ground that the Applicant's application for permanent residence was made before
27 February 2008.
27 It is also
common ground that it was not "before March 29, 2012... established by an
officer, in accordance with the regulations, whether the Applicant meets the
selection criteria, and other requirements applicable to" the Federal
Skilled Worker Class.
28 This means
that, in accordance with paragraph 87.4(1) of the Act, the Applicant's
application for permanent residence in Canada has been terminated by act of
Parliament. It also means that, under paragraph 87.4(5) of the Act the
Applicant has no right of recourse or indemnity against her Majesty in
connection with his terminated application.
…
42 Parliament's
clear intent in enacting subsection 87.4 of the Act was to
"terminate" permanent skilled worker applications made before 27
February 2008. The Applicant does not dispute this fact and he does not dispute
that his application was made before the operative date. His argument is that,
notwithstanding valid legislation that terminates his application, the Court
can somehow use a nunc pro tunc order to grant him an order of mandamus
for a skilled worker application that no longer exists because it has been
terminated by act of Parliament. To grant such an order, in my opinion, and in
the words of the Supreme Court of Canada in Trecothic Marsh, above,
"would clearly be overriding the statute and defeating the intention of
the law-giver." It would amount to the Court extending its jurisdiction in
opposition to the law and the clear intention of Parliament.
[22]
There is no gap in the legislation regarding the
operation of law between March 29, 2012 and June 29, 2012. If an applicant had
complied with all visa requirements before June 29, 2012 and was entitled to a
positive decision, that applicant would be governed by the “old” law. For those
applicants who had not fully complied with the “old” legislation, any rights
accrued to June 29, 2012 would be terminated effective March 29, 2012.
As
stated earlier, the result may be unfair in the view of many but that is the
result that Parliament intended and specifically provided for.
[23]
Lastly, I can find no breach of procedural
fairness. There were delays in the processing of FSW applications while the
Respondent determined how to proceed with pending applications. However, the
Applicant has not established that “but for” these delays, all aspects of his
visa application would have been completed and a positive decision ought to
have issued before June 29, 2012. The Applicant asks the Court to speculate on
the timing of a positive decision.
[24]
The Applicant has not established that there was
any bad faith or improper purpose in the delay in processing. A claim that a
failure to decide a matter in a timely manner – a matter for which mandamus is
the proper remedy – is not also a breach of procedural fairness.
[25]
Further, the Applicant knew on June 21, 2012
that a positive selection decision did not mean that a visa would issue. In the
letter giving instructions to obtain medical evidence, the Applicant was
informed that the selection decision does “not imply in any way that your application
has been approved”. There is no basis for a claim of legitimate expectation.
IV. CONCLUSION
[26]
In conclusion, the purpose and intent of the
legislation was to expunge as of March 29, 2012 existing rights in pre-February
27, 2008 visa applications unless an applicant had fully complied on that date
with the FSW visa requirements. The Applicant did not nor had he complied when
s 87.4 came into effect on June 29, 2012. Therefore this judicial review will
be dismissed.
[27]
The Applicant shall have 14 days from the date
of the decision to make submissions on a certified question, and the Respondent
shall respond within 10 days of receipt of those submissions. The Applicant
shall have three (3) days to submit a reply.
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