Docket:
IMM-8671-11
Citation: 2014 FC 70
Vancouver, British Columbia, January 21, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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ANJU JOSEPH MANNIL,
BENCY SUSAN THOMAS,
DEBBIE OSIFO, EDUARDO RACOMA,
MISAN RAGHEB ABURMAILEH,
JOCELYN MAE SALAS,
ROSELINE JACOB,
JOFFREY CACANANTA,
KHALED AL QAWASMEH,
TAMARA AHMAD MOHAMAD SHAKER, FRANK LESTER ENCISCO,
JANET ALAIR ARABIA, AND
MARIA CANDIDA MANAHAN ALCARAZ
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Applicants
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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. Overview
[1]
Visa applicants do not have the right to have
their applications processed, particularly, if not received within the
timelines set according to Ministerial Instructions [MI] (Lukaj v Canada (Minister of Citizenship and Immigration), 2013 FC 8, 424 FTR 243 at para
41-42).
II. Introduction
[2]
The Applicants seek judicial review of the
refusal of a Service Delivery Agent [Agent] to process their applications
for permanent residence under the federal skilled worker class [PR application]
because they fell outside of their annual National Occupation Classifications
cap [annual cap] imposed by the MI-2 issued pursuant to section 87.3 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
III. Background
[3]
Mr. Anju Joseph Mannil, the Principal Applicant,
and eight other Applicants, all of whom were represented by the same
immigration consultant, prepared PR applications under the National Occupations
Classifications [NOC] codes 3152 (nurse) and 3131 (pharmacist).
[4]
On June 26, 2011, the Applicants explained that the
immigration consultant brought the completed applications to FedEx and provided
special instructions to hold the package for delivery until July 4, 2011.
[5]
On June 30, 2011, the PR applications were
received by Citizenship and Immigration Canada [CIC].
[6]
On the same day, the annual caps under the MI-2
ended. The new Ministerial Instruction 3 [MI-3] took effect on July 1, 2011.
This new instruction re-opened the application process for all categories under
the federal skilled workers class.
[7]
On July 18, 2011, the Agent reviewed the
Applicants’ PR applications and refused to process them on the basis that they
were received after the annual caps for the relevant NOC codes under the MI-2
had already been reached.
[8]
On July 19, 2011, CIC mailed the PR applications
and decision letters to the immigration consultant at her mailing address in Dubai.
[9]
On September 6, 2011, the immigration consultant
contacted CIC by email to inquire about the status of several PR applications.
In her email, she noted that FedEx had delivered the packages on June 30, 2011,
although she had provided specific instruction to FedEx to hold delivery until
July 4, 2011. At this time, the annual caps under MI-3 for NOC code 3152
(nurses) and NOC code 3131 (pharmacist) had already been reached.
[10]
On September 19, 2011, the Agent responded to the
immigration consultant indicating that he could not provide a response to her
“bulk” inquiry for privacy reasons, as it concerned several applications; however,
the Agent noted that if the PR applications were received on June 30, 2011,
they would have been reviewed under the MI-2, and as a result, would be
returned as the annual cap under the MI-2 had been reached by that date.
[11]
On October 29, 2011, and November 3, 2011, the
immigration consultant sent another two emails regarding the status of several
applications.
[12]
On November 15, 2011, the Agent responded to the
immigration consultant’s further inquiry by sending a separate email for each
of the Applicants individually, explaining the decision made with regard to
their PR application on July 18, 2011. These emails are the subject matter of
the present judicial review.
[13]
On November 28, 2011, nine of the Applicants in
this matter filed an application for leave and for judicial review of the
Agent’s decision. On January 23, 2012, four other Applicants filed similar
applications.
[14]
These 13 applications have been consolidated by
the Court and handled as a specially-managed hearing.
IV. Decision under Review
[15]
In each of the nine emails, dated November 15,
2011, the Agent explained that the PR applications had been received after the
annual caps for NOC code 3152 (nurses) and/or NOC code 3131 (pharmacist) under
MI-2 had already been reached, and as a result, the applications could not be
processed as they exceeded the cap limits.
[16]
The Agent explained that each Applicant’s PR
application had been returned unprocessed (Decision letter, Certified Tribunal
Record at p 4).
V. Issue
[17]
Did the Agent breach the rules of procedural
fairness by failing to advise the Applicants in a timely manner that their
applications would not be considered for processing?
VI. Relevant Legislative Provisions
[18]
Section 87.3 of the IRPA is relevant:
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87.3 (1) This section applies to
applications for visas or other documents made under subsection 11(1), other
than those made by persons referred to in subsection 99(2), sponsorship
applications made by persons referred to in subsection 13(1), applications
for permanent resident status under subsection 21(1) or temporary resident
status under subsection 22(1) made by foreign nationals in Canada and to
requests under subsection 25(1) made by foreign nationals outside Canada.
Attainment of immigration goals
(2) The
processing of applications and requests is to be conducted in a manner that,
in the opinion of the Minister, will best support the attainment of the
immigration goals established by the Government of Canada.
Instructions
(3) For the
purposes of subsection (2), the Minister may give instructions with respect
to the processing of applications and requests, including instructions
(a)
establishing categories of applications or requests to which the instructions
apply;
(b)
establishing an order, by category or otherwise, for the processing of
applications or requests;
(c)
setting the number of applications or requests, by category or otherwise, to
be processed in any year; and
(d)
providing for the disposition of applications and requests, including those
made subsequent to the first application or request.
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87.3 (1) Le présent article
s’applique aux demandes de visa et autres documents visées au paragraphe
11(1), sauf celle faite par la personne visée au paragraphe 99(2), aux
demandes de parrainage faites par une personne visée au paragraphe 13(1), aux
demandes de statut de résident permanent visées au paragraphe 21(1) ou de
résident temporaire visées au paragraphe 22(1) faites par un étranger se
trouvant au Canada ainsi qu’aux demandes prévues au paragraphe 25(1) faites
par un étranger se trouvant hors du Canada.
Atteinte des
objectifs d’immigration
(2) Le
traitement des demandes se fait de la manière qui, selon le ministre, est la
plus susceptible d’aider l’atteinte des objectifs fixés pour l’immigration
par le gouvernement fédéral.
Instructions
(3) Pour
l’application du paragraphe (2), le ministre peut donner des instructions sur
le traitement des demandes, notamment en précisant l’un ou l’autre des points
suivants :
a) les catégories de demandes à l’égard desquelles s’appliquent les
instructions;
b) l’ordre de traitement des demandes, notamment par catégorie;
c) le nombre de demandes à traiter par an, notamment par catégorie;
d) la disposition des demandes dont celles faites de nouveau.
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[19]
Section 87.3, first introduced in the IRPA in
February 2008, authorized the Minister of Citizenship and Immigration Canada to
issue Ministerial Instructions regarding the priority in which applications
would be processed, and removed the obligation to process every application
received. These Ministerial Instructions provided for a triage of applications
according to revised eligibility criteria.
[20]
In the present case, MI-2 is the applicable set of
ministerial instructions. As explained in Liang v Canada (Minister of Citizenship and Immigration), 2012 FC 758, 413 FTR 145:
[7] … The
first set of Ministerial Instructions was published on November 29, 2008 (MI1).
They applied to applications received on or after February 27, 2008. Pursuant
to the MI1, applications would only be eligible to be processed if the
applicant: had experience in one of 38 listed occupations; an arranged offer of
employment (AEO); or was legally residing in Canada as a temporary foreign
worker or international student.
[8] The MI1
were ultimately unsuccessful in restraining the growth of applications. The
backlog diminished at first, but eventually application levels increased beyond
the levels before Bill C-50. Thus, on June 26, 2010, the second set of
Ministerial Instructions was published (MI2). They applied to applications
received on or after that date. The MI2 directed that applications would only
be eligible to be processed if the applicant had an AEO or the applicant had
experience in one of 29, as opposed to 38, listed occupations. The MI2
introduced a global cap on FSW applications: a maximum of 20,000 applications
(excluding those with an AEO) were to be placed into processing each year.
Within that cap, a maximum of 1,000 applications per occupational category were
to be processed each year. Applications exceeding that cap would be
returned unprocessed.
VII. Standard of Review
[21]
The issue of undue delay in issuing a decision is one
of procedural fairness and has been recognized as reviewable on the standard of
correctness (Snieder v Canada (Attorney General), 2013 FC 218 at para
20).
VIII. Analysis
[22]
The Applicants present one central argument – the Agent
erred in failing to inform them of his decision in a timely manner. The
Applicants do not contest the decision or any of its content; in fact, they
concede that the decision was the appropriate one to make (Applicant’s
Memorandum of Fact and Law at para 21).
[23]
The Applicants also reiterate, in great length, the
circumstances involving FedEx’s early delivery of the PR applications, which
they assert led to the Agent’s refusal to process the applications. The
Applicants request that the Court consider these special circumstances, which
were beyond their control, in determining whether there was a breach of
procedural fairness.
[24]
The Court is of the view that the Applicants have not
established a breach of procedural fairness due to an unreasonable delay.
[25]
There are three requirements that must be met if a
delay is to be considered unreasonable:
1)
The delay in question has been longer than the
nature of the process required, prima facie;
2)
The applicant and his counsel are not
responsible for the delay; and
3)
The authority responsible for the delay has not
provided satisfactory justification.
(Liang,
above, at para 26; reference is also made to Snieder, above)
[26]
In the present case, the Agent rendered his decision 18
days after having received the PR applications; despite having received 1,500
applications in the first week of July 2011. He then mailed the decision
letters and unprocessed PR applications on July 19, 2011, one day later.
[27]
As submitted by the Respondent, and with which the
Court agrees, the Agent assessed and provided notice of the negative
decision to the Applicants in a timely manner.
[28]
Although neither party presented any evidence as to
what would normally consist of a reasonable delay in the PR application process
for the federal skilled worker class, in Liang, above (at para 29),
this Court found that 6 to 12 months was a reasonable delay within which such
applicants could expect to receive a decision from CIC under MI-1. The Agent’s
decision falls well within this range. The Court therefore finds that the first
part of the test set out in Liang has not been established; the delay in
question was not longer than the nature of the process required. (The Court recognizes
that the delays set out in Liang were in regard to cases processed under
MI-1; however, it finds that a similar characterization of “reasonable delay”
would be found under MI-2; notably in light of its objective to further
restrain the growth of applications and allow CIC to clear its backlog).
[29]
The Court further finds that the second part of the
test was not met, as it would appear the Applicants’ immigration consultant was
responsible for the delay.
[30]
It is well-established that a decision-maker has a duty
to prove that notice of a negative decision was actually sent or “went on its
way” to an applicant; however, once the respondent proves, on a balance of
probabilities, that the communication was sent, it is the applicant who
bears the risk involved in a potential failure to receive the communication (Caglayan
v Canada (Minister of Citizenship and Immigration), 2012 FC 485, 408 FTR
192 at para 13; reference is also made to Zare v Canada (Minister of Citizenship
and Immigration), 2010 FC 1024, [2012] 2 FCR 48 and Yang v Canada (Minister
of Citizenship and Immigration), 2008 FC 124).
[31]
In the present case, the Applicants claim that their immigration
consultant never received the decision letters sent by the Agent on July 18,
2011; however, they provided no evidence to establish that the letters were not
sent or had been sent in an unreliable manner to their immigration consultant.
[32]
The Global Case Management System (GCMS) notes recorded
by the Agent, on July 18, 2011, make explicit reference to the PR applications
being returned to the Applicants by regular mail, which is standard CIC
practice. There is also no dispute as to whether the immigration consultant’s
address on file was correct. Moreover, the evidence on the record indicates
that the decision letters were successfully delivered to the immigration consultant’s
address in Dubai; however, they were all returned to CIC by the Dubai postal service as “unclaimed” by the addressee in January 2012 (see Exhibits EE-QQ,
Affidavit of Catherine F. Brown).
[33]
In the absence of any evidence to rebut the presumption
that the letters were properly delivered to the immigration consultant, thereby
demonstrating that she was not responsible for the delay, the Court does
not see a need to turn to the question of whether there was a reasonable
justification for the delay.
[34]
Accordingly, as the tripartite test for an unreasonable
delay set out in Liang, above, was not met, the Court does not find that
there are sufficient grounds to justify its intervention. The delay was
reasonable.
[35]
While it is quite clear that the Applicants are
dismayed about the early delivery of their PR applications leading to
their rejection, it was not for CIC to remedy the issue. The Agent applied the
law and the Ministerial Instructions as he was required; he was not open to
give the Applicants special consideration and waive the annual caps. The
Applicants’ remedy for the early delivery of their mail lies solely with FedEx
as an aggrieved client.
IX. Conclusion
[36]
For all of the above reasons, the Applicants’
application for judicial review is dismissed.
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