Docket: IMM-4808-13
Citation:
2014 FC 685
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa,
Ontario, July 11, 2014
Present: The Honourable Madam Justice Gagné
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BETWEEN:
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ELEFTHERIOS FILIPPIADIS
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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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JUDGMENT AND REASONS
[1]
Eleftherios Filippiadis applied for judicial
review of the decision—the term is used in its generic sense—of an immigration officer
from the Sydney Case Processing Centre, dated July 3, 2013, considering his
application for a visa under the Federal Skilled Worker category as incomplete and
returning it to him without processing, for the reason that it does not satisfy
the requirements provided in the instructions issued by the Minister of
Citizenship and Immigration in accordance with subsection 87.3(3) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (Act).
[2]
Therefore, the issue is whether the return of
the applicant’s claim before it was processed may properly be considered to be
a decision subject to the power of judicial review of the Court provided by
subsection 18.1(1) of the Federal Courts Act, RSC 1985, c
F-7.
[3]
For the reasons stated below, I am of the view
that the application should be dismissed since the letter of July 3, 2013,
received by the applicant does not contain a decision likely to be reviewed by
this Court.
Factual background
[4]
The applicant is a Greek citizen who obtained on
May 18, 2012, his doctoral degree in Economics from the University of
Concordia in Montréal.
[5]
On April 18, 2013, he filed a permanent
residence application in Canada as part of the Federal Skilled Worker Program with
the Centralized Intake Office (CIO) in Sydney of Citizenship and Immigration
Canada (CIC).
[6]
The fact that the applicant obtained his doctoral
degree within the 12 months preceding the date that CIC received his
application made him eligible for the Federal Skilled Worker category, under
the PhD eligibility stream.
[7]
When his application was filed, the applicant included
various documents describing his full-time work experience in Canada. In
addition, he included Schedule 3, Economic Classes – Federal Skilled Workers (Schedule
3), in the version that existed at that time.
[8]
On April 23, 2013, the CIO sent a letter to
the applicant (and returned his file and his payment) indicating that he had
not produced his birth certificate in support of his application.
[9]
On May 4, 2013, the CIC Ministerial
Instructions, known as “IM8”, were published in the Canada Gazette. These
instructions apply to applications received at the CIO as of that date and they
require in particular that applications be filled in accordance with the application
kit requirements in place at the time of application receipt by the CIO. This
kit includes a new version of Schedule 3, now of three pages, compared to the
previous one that had two pages.
[10]
On May 14, 2013, the applicant returned to
the CIO his application for permanent residence in Canada, including his birth
certificate and its translation. He returned all the documentation that he had sent
on April 18, 2013, including the previous Schedule 3. The CIO received the
application on May 15, 2013.
[11]
On July 3, 2013, the CIO again returned to
the applicant his application for permanent residence in Canada and his payment.
According to Appendix C of the letter of the CIO sent to the applicant, the
application was returned since it was not accompanied by one of the documents requested
in the application kit applicable to this category, i.e. the most recent version
of Schedule 3 (page 7 of the Certified Tribunal Record). It was this
last correspondence of the CIC that is the subject of this application for
judicial review.
[12]
On July 22, 2013, the applicant wrote to the CIO
so as to request that the decision of July 3, 2013, be reviewed and that
the applicant’s file be reassessed. He still has not received a reply to this application.
Issue
[13]
In his original memorandum, the applicant is
clearly under the impression that his visa application was dismissed for
failing to providing sufficient evidence that he allegedly performed the duties
of professor described in the National Occupational Classification. He
got this impression from the form letter received from the CIO, which ends on
this general note:
NOTE: Work
Experience: It is important you provide us
documentation supplying evidence to show that within the 10 years before the
date on which your application was made, you have accumulated, over a
continuous period, at least one year of full-time work experience, or the
equivalent in part-time work, in the occupation you identified as your
primary occupation, that is listed in Skill Type 0 or Skill Level A or B of the
National Occupational Classification (NOC). Your letter of employment must
clearly give evidence showing that you have performed the actions described in
the lead statement and that you have performed a substantial number of
main duties of the occupation as set out in the occupational descriptions
of the NOC, including all the essential duties, for that period of
employment. If your letter(s) does not provide us with of (Sic) this
information, you will not meet Regulation 10 of IRPA.
[14]
However, the reason given for returning the file
was instead found on a checklist (Appendix C) in which the box indicating that
the new Schedule 3 is missing was checked. The letter of July 3, 2013, explained
this (at the paragraph before that quoted above):
A review of your application indicates that
you do not meet the requirements of Regulation 10 of IRPA. The application is
being returned to you for this reason. Your application fee was not processed
and is also being returned to you.
Please see the highlighted items on the
enclosed checklist(s) and/or the enclosed Appendix(es). [Emphasis added.]
[15]
The CIO never processed the applicant’s file nor
made a decision against him, since at sorting, it was considered non-compliant
with the IM8.
[16]
The issue that this application for judicial
review raises is whether the applicant’s application for permanent residence was
set aside before it was processed, may be the subject of the application for
judicial review before this Court.
Relevant provisions
[17]
An application for
judicial review must dispute a decision or order subject to the power of judicial
review of the Federal Court under paragraph 18.1(2)
of the Federal Courts Act.
[18]
Subsection 87.3(3) of the Act allows
the Minister to provide instructions on applications for permanent residence. Subsection 87.3(4)
specifies that the officer is required to comply with the instructions before
and during the processing of the application. Subsection 87.3(5) provides
an important clarification that retaining or returning an application, or otherwise
disposed of, does not constitute “a decision not to
issue the visa or other document, or grant the status or exemption, in relation
to which the application or request is made” (according to the French
version, “decision” is translated by “refus”).
[19]
Finally, it is section 75 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations) that defines
skilled workers and sets out the criteria that they must meet so that their visa
application in this category is accepted.
Analysis
[20]
As indicated above, the applicant’s original memorandum
deals almost exclusively with the unreasonableness of the “decision” made by
the CIC officer, in that he would not have considered the applicant’s various
professional credentials, which clearly showed that he fulfilled the applicable
criteria for his application under subsection 75(2) of the Regulations. In
particular, the applicant worked as a professor at the University of Concordia
and taught at the Vanier CEGEP and was paid for these two jobs.
[21]
The respondent argued that the letter of
July 3, 2013, cannot be considered to be a decision or an order. Rather,
he proposes drawing an analogy with the notice to appear regarding the removal
of a foreigner, which, according to well-established case law, is not a decision
subject to judicial review (Daniel v Canada (Minister of Citizenship
and Immigration), 2007 FC 392 at para 12). The respondent also quoted Alaa
v Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 14,
where Justice Blais issued the following comment:
[15] If every purely administrative
order issued by an officer of a department, whether it be Citizenship and Immigration
or any other government agency, were subject to an application for judicial
review, the complete administration of federal entities could be compromised,
thereby rendering them totally ineffective.
[16] Far from concluding that federal
administrative decisions are not subject to judicial review by the Federal
Court, my comment, which is also to be considered as an approval of the
decision rendered by de Montigny J. in Tran, supra, simply
specifies that only a decision or an order is subject to judicial review under
subsection 18.1(2) of the Federal Courts Act.
[22]
In his reply brief, and particularly during the
hearing before the Court, the applicant instead argued that the fact of returning
his visa application without processing it because it was missing the latest
version of a form is a decision subject to judicial review in that the applicant’s
rights are compromised by it. He also applied to the Court to certify this
issue.
[23]
Moreover, the Act clearly states that an application
that does not comply with the requirements of the Ministerial Instructions may
be returned to the applicant and that it is not a refusal to issue the
requested permanent residence visa.
[24]
In Liang v Canada (Minister of Citizenship
and Immigration), 2012 FC 758 at para 43, the Court makes an important
distinction between the processed and not processed application:
However, section 87.3 does not eliminate the Minister’s duty
to process applications in a reasonably timely manner, at least those
applications that are accepted for processing. There is no language in section
87.3 or any other amendment to the Act that extinguishes the longstanding,
well-accepted duty to process applications in a reasonable time frame. The
Minister can set instructions that permit him to return some applications
without processing them at all, and thus obviously there is no further duty in
respect of those applications. However, for those that are determined
eligible for processing, the duty to do so in a reasonably timely manner
remains, absent clear legislative language extinguishing that duty. The
Ministerial Instructions inform the assessment of whether that duty is
discharged in a reasonable period of time. [Emphasis
added]
[25]
In this case, the applicant’s application was
non-compliant; he provided an old version of Schedule 3 although he was
required to use the new version. The IM8 applied to his application of May 14,
2013, which was a new application.
[26]
In his affidavit, the immigration officer recalls
that the CIO received 9,590 applications in the Federal Skilled Worker Program between
May 4, 2013, the date that the IM8 was published, and September 26,
2013. In such a context, it is essential that applicants assume responsibility for
ensuring that all documents required are provided.
[27]
The file shows that the applicant waited until April
2013 to file his application, when he only had one month left before 12 months
after receiving his doctoral degree expired. He also showed that this application
of April 18, 2013, was not the first visa application returned to the applicant
for failing to attach his birth certificate. His application of March 15,
2013, in the Quebec Skilled Workers class, was no exception. It is true that
this application is not covered in these proceedings, but it shows that the
applicant knew the importance of attaching his birth certificate to his visa application.
[28]
The administration and effectiveness of the program
may be compromised if each time an officer decides that an application is incomplete,
this decision may be the subject of an application for judicial review before
this Court. The time and effort involved in a more in-depth investigation for
all applications filed would be intolerable (Navjot Singh v Canada (Minister
of Citizenship and Immigration), 2011 FC 956 (Navjot Singh)).
[29]
During the hearing, the applicant emphasized the
fact that Schedule 3 is not a document that is determinative in the assessment
of the application since the information contained in it is found in various
documents produced in support of his application. According to him, the officer
did not have to search outside of the file to obtain the specific information
that was not included in the applicant’s file and in Schedule 3. The applicant argued
that his situation is different from Navjot Singh where the visa officer
would have had to search in another file of the applicant’s family to obtain
information relating to the family relationship between two people. The
applicant also put a great deal of emphasis on the fact that, in his opinion,
the new version of Schedule 3 only contains superficial changes in relation to
the previous version.
[30]
He added that if he had to follow the
respondent’s reasoning, all the permanent residence claimants in Canada would
have no recourse before a capricious decision of a visa officer who could dismiss
or return their application simply because a form was incomplete, although the information
sought is already in the file.
[31]
To that, the respondent replied that the content
of Schedule 3 is not relevant since the IM8 clearly states that the new version
must be used as of May 4, 2013. The respondent added that there are some
differences that are not superficial, for example the obligation in the new
form to indicate the main category in which the applicant has accumulated his
work experiences.
[32]
I concede to the applicant that the changes made
to Schedule 3 are rather superficial and that while he now has to indicate the
main category in which the applicant claims to have relevant work experience, although
there is nowhere to provide this information in the old version of Schedule 3, the
immigration officer can deduce it from his reading of the other sections of the
old Schedule 3, by adding the applicant’s months of experience in each category.
[33]
However, this does not change the fact that the applicant’s
visa application was not in compliance with IM8 and that the officer had the
responsibility of sorting and accepting or not accepting a visa application for
processing. Neither does it change the fact that the Act clearly provides that
the return of an unprocessed application is not a refusal to issue a visa (a “refus”
in the French version).
[34]
The applicant proposes to the Court the following
question for certification:
[translation]
“Is the fact
that Citizenship and Immigration Canada returned to the applicant his application
for permanent residence file because it was missing the latest version of a
form where the non-essential changes were made by CIC a reviewable decision under
section 18 of the Federal Courts Act, when the rights of the applicant
are thereby compromised?”
[35]
The applicable test
for certification is set out at paragraph 74(d) of the Act and
at subsection 18(1) of the Federal Courts Immigration and Refugee
Protection Rules SOR/93-22. So that a question may be certified, the
following question must be asked: “Is there a serious question of general importance which would be
dispositive of an appeal?” (Canada (Minister of Citizenship and
Immigration) v Zazai, 2004 FCA
89, at para 11, citing Bath v Canada (Minister of Citizenship and Immigration),
[1999] FCJ No 1207 at para 15).
[36]
A “serious question of
general importance” is a question that transcends the particular factual
context in which it arose and that lends itself to a generic approach leading
to an answer of general application (Boni v Canada (Minister
of Citizenship and Immigration), 2006 FCA 68 at para 4-6).
[37]
In this case, the Act itself deals with the question raised by the applicant, except that he
claims that its specific facts would justify a different conclusion. Therefore
the question does not transcend the applicant’s particular factual
context.
[38]
Therefore, this question will not be certified.
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