Date: 20140821
Dockets: A-180-13
A-181-13
A-183-13
A-185-13
A-186-13
Citation: 2014
FCA 191
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CORAM:
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SHARLOW J.A.
DAWSON J.A.
STRATAS J.A.
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Docket:A-180-13
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BETWEEN:
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SUMERA SHAHID, FANG WEI, CHUANYUE XIE,
MAN YANG,
JING YANG, SIU LAI WOO, HONGBING BI, XIANG
YANG LIN,
YING HUANG, XIANGNING DENG, SHANGSI LING,
CHENGXIANG LIU, FAN ZHANG, YINGHONG ZHANG,
ZIJUN LIU, BAOQING ZHOU, ZHENDONG WANG, HUIQIANG PENG,
YANG TIAN, CHANGYING CHEN, XIAOMIN ZENG, FEI
ZHU,
QIONG ZHANG, TINGTING ZHAO, YAN TU, JIAN HEI,
YAN XU, FUCHUAN NI, XUEJUN WANG, YUN ZHOU, NING LI, XIN LI,
PING GUO, HAIJUN LU, TONG QI, SHUNHUA YE,
HONGQI LIN, KAMFAI NG, LIANG CHEN, BO LIU, ZHENGHUI XU, SONG LIN, XUANJIN ZHU,
ZHIQIANG GUO, PEIFENG HAO, YING BAI,
SHUXUN CHEN, YUN LI, LING XIAO, LI AN, ZHU
CHAI,
YING ZHANG, SHAOPING CAO, GUIMEI JING, LIN
ZHANG,
WEI CHEN, PAN QIN, LINGJING WENREN, YIDAN LU,
GUI MA, XIAOXIAO LIU, YU SHEN, WEIJUAN WU, MING YU WU,
WENJUN XUE, BING ZHANG, KUN ZHU, CHUXIAO LI,
XINYAN JIA, JUAN LUO, CHUAN HUO, MINGMING LUI, TIAN FU, HUIXIAN LONG,
XIAOJIAN YAN, HONG WEI YANG, YU HE, GEQI WENG, ERLI SUN, QIZHI FENG, SHAOCHI
WANG, JIANZHONG TAN, CHUN CHU,
LI LIANG, JIANCUN HUANG, XIAOYU LIU, DEJIAN
LI,
XUELIAN BIAN, RUOCHUN LI, RUI HANG, YANLING
LIU,
AIPING ZHANG, FEI WANG, WEN LU, LIPING QIU,
JIANG LUO,
YILI WANG, JIONG ZHANG, SHI SUN, JIONG WANG,
XILEI SONG, MIN QIAN, JIANGPING LU, JIONG GU, GUO YIN WANG,
LIJING XIAN, YUAN XU, YINZI GUAN, JIN LIU, LEI
WU,
ZHAOHUI SUN, XIAODONG HUANG, PING YU, YANGCHUN
YANG, HUIMING HU, JIEMIN XIA, YAPING WANG, QUTING ZHANG, JIAWEI WANG, XIN
LIU, JIE AN, PENG XU, MENG LUO,
SHUNHONG YAN, CAIHUA YU, WUSAN DA, QIFENG HOU,
DA YU LIU, HONGWEN TIAN, JIAJIA CHEN, CHENGGANG
HUANG, YURONG BIAN, CHUNYANG HUA, CHAO LI, JIE YI TIAN,
YONG QIANG WU, SHAO RU HE, MING MING YANG,
SHUN PING LI, YAN JIANG, PEIDE FU, YI HAI ZHONG, XINGFEN FANG, JIAN ZHOU,
ZIEN LI, WEI NIU, YUTAO HE, RAN ZHOU, WEI FENG,
YING WU ZHANG, XIAOLEI CHEN, XIAO LONG, RAN
YONG,
LU ZUO, HAI TAO LAN, XIAOZHONG HE, BIN MA,
GUIPING RAN, HUAN LIU, JIE CAO, GUANGYING XIAO, MING CHEN, LIXIA SHAO, YUCHUN
YU, BO HUANG, HUI YING HUAN CHUN TING LI, XIANGXIAN LI, YAPING YANG, BING
CHEN, FEI KONG, LI ZHANC, XIAO XIA LIU, PING DENG, JIAN XU, TING GAO, XIPING
LUO, SONGMIN WANG, YIBO WANG, SHUMEI WANG, ZHI YI LI,
SHI MIN DAI, JING LI, CHENXI ZHAO, YANG LIU,
MEI ZHANG,
MAN YI MICHELLE TANG, XUELIN ZHANG, YANLI WEI,
JIN LIU, YUANYUAN DONG, ENNIAN JIN, ZHI LI
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Appellants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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Docket:A-181-13
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AND
BETWEEN:
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ALI RAZA JAFRI
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Appellants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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Docket:A-183-13
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AND BETWEEN:
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MAE JOY
TABINGO, ET AL
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Appellants
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and
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THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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Docket:A-185-13
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AND
BETWEEN:
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YANJUN YIN
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Appellants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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Docket:A-186-13
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AND
BETWEEN:
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MARIA SARI TERESA BORJA AUSTRIA
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Appellants
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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
SHARLOW J.A.
[1]
The Minister of Citizenship
and Immigration has refused to process the applications of approximately 1,400
foreign nationals who applied before February 27, 2008 for permanent resident
visas as members of the federal skilled worker class. They each applied to the
Federal Court for judicial review of the Minister’s refusal. They sought a
number of remedies, including an order of mandamus requiring the Minister to
process their permanent resident visa applications. The applications for
judicial review were heard together based on eight cases that were agreed to be
representative of all of the others. Justice Rennie dismissed the applications
for judicial review for reasons reported as Tabingo v. Canada (Minister of
Citizenship and Immigration), 2013 FC 377.
[2]
The Minister’s
refusal to process the appellants’ permanent resident visa applications was
based on subsection 87.4(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the “IRPA”). Section 87.4 was added to the IRPA by section
707 of the Jobs, Growth and Long-term Prosperity Act, S.C. 2012, c. 19.
It was proclaimed in force June 29, 2012. Subsection 87.4(1) 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.
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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.
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[3]
I summarize as follows the
principal conclusions reached by Justice Rennie in dismissing the appellants’
applications for judicial review:
(a)
Subsection 87.4(1) of the
IRPA terminates an application for a permanent resident visa as a member of the
federal skilled worker class on June 29, 2012 if the application was made
before February 27, 2008, and it was not determined before March 29, 2012
whether the applicant met the selection criteria and other requirements
applicable to the federal skilled worker class.
(b)
After June 29, 2012, the
Minister had no legal obligation to consider an application described in
subsection 87.4(1).
(c)
The language of subsection
87.4(1) is sufficiently clear to rebut the presumption against the
retrospective application of a statute.
(d)
The statutory conditions
stated in subsection 87.4(1) are objective facts. The process of identifying
which applications are within the scope of subsection 87.4(1) is an
administrative review involving no discretion or adjudication.
(e)
The termination of an
application by subsection 87.4(1) does not contravene section 1(a) or 2(e) of
the Canadian Bill of Rights, S.C. 1960, c. 44, or the rule of law.
(f)
Section 7 of the Canadian
Charter of Rights and Freedoms is not engaged by the termination of an
application pursuant to subsection 87.4(1).
(g)
The appellants have not
established that the implementation of subsection 87.4(1) discriminates against
them on any of the grounds referred to in subsection 15(1) of the Charter or an
analogous ground.
[4]
To permit an appeal to this
Court, Justice Rennie certified the following questions pursuant to paragraph
74(d) of the IRPA:
(a)
Does subsection 87.4(1) of
the IRPA terminate by operation of law the applications described in that
subsection upon its coming into force, and if not, are the applicants entitled
to mandamus?
(b)
Does the Canadian Bill of
Rights mandate notice and an opportunity to make submissions prior to
termination of an application under subsection 87.4(1) of the IRPA?
(c)
Is section 87.4 of the IRPA
unconstitutional, being contrary to the rule of law or sections 7 and 15 the
Charter?
[5]
The appellants in these five
appeals represent all of the original applicants who appealed.
[6]
These reasons are organized
into four parts. Part I summarizes the relevant facts relating to each
appellant. Part II describes the statutory scheme, which consists of certain
provisions of the IRPA (including section 87.4) and the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the “Regulations”). Part III
discusses the grounds of appeal. Part IV summarizes my conclusions.
I.
Facts
[7]
Each of the appellants
applied before February 27, 2008 for a permanent resident visa as a member of
the federal skilled worker class. Some of the applications were submitted in
2005, others in 2007. None of the applications were processed to completion.
Most of the appellants made frequent enquiries about the progress of the
applications, and received assurances that the applications would be processed
eventually. In each case, all processing stopped after June 29, 2012 because of
the enactment of section 87.4 of the IRPA.
[8]
The appellants incurred
expenses for representation costs, application fees, and the cost of obtaining
and submitting the extensive documentation required in support of their
applications. They also suffered significant stress while waiting years for
their applications to be processed. Although they are entitled to a return of
the fees they have paid under the IRPA, they were hoping to be given the chance
to establish themselves in Canada and they consider the loss of that
opportunity to be substantial. Understandably, they consider it unfair that
their applications have been terminated without regard to their merits.
[9]
The specific facts for each
appellant are as follows:
(a)
Ms. Fang Wei (A-180-13)
applied in 2007 to the visa post in Hong Kong. She had been married in China on
May 1, 2006. Her husband subsequently became a permanent resident and a citizen
of Canada. For technical reasons that are not relevant to her appeal, her
husband has been unable to sponsor her.
(b)
Ms. Sumera Shadid (A-180-13)
applied in 2007 to the visa post in Islamabad. Her application was transferred
to the London visa post on December 29, 2010.
(c)
Mr. Ali Raza Jafri
(A-181-13) is a citizen of Pakistan. He applied in 2007 to the visa post in
Islamabad.
(d)
Ms. Mae Joy Tabingo
(A-183-13) applied in 2005 to the visa post in Manila for herself, her husband
and their children.
(e)
Mr. Yanjun Yin (A-185-13) is
a citizen of China. He applied in 2007 for himself and his wife.
(f)
Ms. Maria Sari Teresa Borja
Austria (A-186-13) applied in 2005 to the Manila visa post.
[10]
It is not possible to
determine with certainty whether the appellants would have been granted
permanent resident visas if subsection 87.4(1) of the IRPA had not been
enacted. However, the Minister has referred to nothing in the record that
raises any doubt as to the eligibility of the appellants to be selected as
members of the federal skilled worker class.
II.
The statutory scheme
[11]
By virtue of subsection 6(1)
of the Charter, and historically at common law, every Canadian citizen has the
unconditional right to enter and remain in Canada. The right of anyone else to
enter and remain in Canada is governed by the IRPA and its predecessor statute,
the Immigration Act, R.S.C. 1985, c. I-2 (see Chiarelli v. Canada
(Minister of Employment and Immigration), [1992] 1 S.C.R. 711).
[12]
A “permanent resident” as
defined in the IRPA has the qualified right to enter and remain in Canada
pursuant to subsection 27(1) of the IRPA. “Permanent resident” is defined in
subsection 2(1) of the IRPA as a person who has acquired permanent resident
status under the IRPA and has not subsequently lost that status under section
46 of the IRPA. Subsection 11(1) of the IRPA provides that a foreign national
who wishes to become a permanent resident must apply for the appropriate visa
from outside Canada (subject to exceptions that do not apply to the
appellants).
[13]
Pursuant to subsection 21(1)
of the IRPA, a foreign national becomes a permanent resident if an immigration
officer is satisfied that the foreign national has applied for that status,
holds the visa required to establish his or her entitlement to that status, and
is not inadmissible. Pursuant to sections 34 to 41 of the IRPA, a person may be
inadmissible on numerous grounds including, for example, grounds relating to
security, criminality, health, financial circumstances, misrepresentation,
failure to comply with a condition imposed under the Regulations or a
Ministerial instruction relating to economic immigration, and failure to comply
with the residence requirements for permanent residents.
[14]
Pursuant to sections 25 and
25.1 of the IRPA, the Minister has the discretion to grant relief on
humanitarian and compassionate grounds from any statutory requirement for
permanent resident status, except to a person who is inadmissible under section
34 (security), section 35 (violation of human or international rights) or section
37 (organized criminality). The relief may be granted either on the application
of the person affected (subject to the payment of a fee unless the fee is
waived), or on the Minister’s own initiative. No submissions were made in these
appeals as to whether the appellants are entitled to seek this relief. Section
25.2 of the IRPA permits the Minister to grant similar discretionary relief on
public policy grounds.
[15]
There is a dispute in these
appeals as to the correct interpretation of section 87.4 of the IRPA. The
resolution of that dispute is informed by subsection 3(1) of the IRPA, which
states the objectives of the IRPA with respect to immigration, and subsection
3(3) which states the principles to be applied in construing and applying the
IRPA. Those provisions read in relevant part as follows:
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3. (1) The objectives of this Act with respect to immigration are
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3. (1) En matière d’immigration, la présente
loi a pour objet :
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(a) to permit Canada
to pursue the maximum social, cultural and economic benefits of immigration;
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a) de permettre au Canada de retirer de
l’immigration le maximum d’avantages sociaux, culturels et économiques;
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…
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[…]
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(c) to support the development of a
strong and prosperous Canadian economy, in which the benefits of immigration
are shared across all regions of Canada;
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c) de favoriser le développement économique et
la prospérité du Canada et de faire en sorte que toutes les régions puissent
bénéficier des avantages économiques découlant de l’immigration;
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…
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[…]
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(e) to promote the successful
integration of permanent residents into Canada, while recognizing that
integration involves mutual obligations for new immigrants and Canadian
society;
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e) de promouvoir l’intégration des résidents
permanents au Canada, compte tenu du fait que cette intégration suppose des
obligations pour les nouveaux arrivants et pour la société canadienne;
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(f) to support, by means of consistent
standards and prompt processing, the attainment of immigration goals
established by the Government of Canada in consultation with the provinces;
...
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f) d’atteindre, par la prise de normes uniformes
et l’application d’un traitement efficace, les objectifs fixés pour
l’immigration par le gouvernement fédéral après consultation des provinces;
[...].
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(3) This Act is to be construed and applied in a manner that
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(3) L’interprétation et la mise en oeuvre de
la présente loi doivent avoir pour effet :
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…
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[…]
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(d) ensures that decisions taken under
this Act are consistent with the Canadian Charter of Rights and Freedoms,
including its principles of equality and freedom from discrimination and of
the equality of English and French as the official languages of Canada; ...
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d) d’assurer que les décisions prises en vertu
de la présente loi sont conformes à la Charte canadienne des droits et
libertés, notamment en ce qui touche les principes, d’une part, d’égalité
et de protection contre la discrimination et, d’autre part, d’égalité du
français et de l’anglais à titre de langues officielles du Canada; […].
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[16]
Paragraph 3(3)(d) of
the IRPA is a statement of the principle that a discretionary administrative
decision must be consistent with the Charter values underlying the grant of
discretion. Authority for that principle is found in a line of cases, the most
recent of which is Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1
S.C.R. 395 (at paragraph 24).
[17]
The IRPA is framework
legislation. It states basic principles and policies, leaving secondary
policies, implementation, and operational matters to be dealt with in
Regulations. This is explained by Justice Evans, writing for the Court in de
Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 at
paragraph 23:
[The IRPA] contains the
core principles and policies of the statutory scheme and, in view of the
complexity and breadth of the subject-matter, is relatively concise. The
creation of secondary policies and principles, the implementation of core
policy and principles, including exemptions, and the elaboration of crucial
operational detail, are left to regulations, which can be amended comparatively
quickly in response to new problems and other developments.
[18]
Section 5 of the IRPA grants
the Governor in Council the authority to make regulations. It reads as follows:
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5. (1)
Except as otherwise provided, the Governor in Council may make any regulation
that is referred to in this Act or that prescribes any matter whose
prescription is referred to in this Act.
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5. (1) Le gouverneur en conseil peut, sous
réserve des autres dispositions de la présente loi, prendre les règlements
d’application de la présente loi et toute autre mesure d’ordre réglementaire
qu’elle prévoit.
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[19]
Most of the conditions for
immigration to Canada are set out in Regulations enacted pursuant to subsection
14(1) of the IRPA, which reads in relevant part as follows:
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14. (1)
The regulations may provide for any matter relating to the application of
this Division, and may define, for the purposes of this Act, the terms used
in this Division.
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14. (1) Les règlements régissent l’application
de la présente section et définissent, pour l’application de la présente loi,
les termes qui y sont employés.
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(2) The regulations
may prescribe, and govern any matter relating to, classes of permanent
residents or foreign nationals, including the classes referred to in section
12, and may include provisions respecting
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(2) Ils établissent et régissent les catégories de résidents
permanents ou d’étrangers, dont celles visées à l’article 12, et portent
notamment sur :
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(a) selection criteria, the weight, if any, to be
given to all or some of those criteria, the procedures to be followed in
evaluating all or some of those criteria and the circumstances in which an
officer may substitute for those criteria their evaluation of the likelihood
of a foreign national’s ability to become economically established in Canada;
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a) les critères applicables aux diverses
catégories, et les méthodes ou, le cas échéant, les grilles d’appréciation et
de pondération de tout ou partie de ces critères, ainsi que les cas où
l’agent peut substituer aux critères son appréciation de la capacité de
l’étranger à réussir son établissement économique au Canada;
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(b) applications for visas and other
documents and their issuance or refusal, with respect to foreign nationals
and their family members;
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b) la demande, la délivrance et le refus de
délivrance de visas et autres documents pour les étrangers et les membres de
leur famille;
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(c) the number of applications that may be
processed or approved in a year, the number of visas and other documents that
may be issued in a year, and the measures to be taken when that number is
exceeded;
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c) le nombre de demandes à traiter et dont il
peut être disposé et celui de visas ou autres documents à accorder par an,
ainsi que les mesures à prendre en cas de dépassement;
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(d) conditions that may or must be
imposed, varied or cancelled, individually or by class, on permanent
residents and foreign nationals; ....
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d) les conditions qui peuvent ou doivent être,
quant aux résidents permanents et aux étrangers, imposées, modifiées ou
levées, individuellement ou par catégorie; […].
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A.
The federal skilled worker
class
[20]
Section 12 of the IRPA
specifies two classes of permanent resident, apart from refugees and persons in
similar circumstances. A member of the “family class” is selected on the basis
of a specified family relationship with a Canadian citizen or permanent resident
(subsection 12(1) of the IRPA). A member of the “economic class” is selected on
the basis of the ability to become economically established in Canada
(subsection 12(2) of the IRPA). The appellants were all seeking to be selected
as members of the economic class.
[21]
It is the position of the
Minister that the creation of the economic class is intended to further the
objectives stated in paragraphs 3(a), (c), (e) and (f)
of the IRPA, quoted above. That suggests that the interpretation and
application of the provisions of the IRPA relating to the federal skilled
worker class is informed by Parliament’s stated intention to permit Canada to
pursue the maximum social, cultural and economic benefits of immigration, to
support the development of a strong and prosperous Canadian economy, to promote
the successful integration of permanent residents into Canada, and to support
the attainment of immigration goals established by the federal government.
B.
Regulations – federal
skilled worker class
[22]
The Governor in Council has exercised
the authority under section 14 of the IRPA to enact detailed regulations
relating to immigration applications, including the applications in issue in
these appeals. Although the Regulations are amended frequently and some
amendments were made after the appellants’ visa applications were made, it has
not been suggested that any of those amendments have a bearing on any of the
issues in this appeal. For that reason, the following summary of the relevant
Regulations is based on the Regulations as they now read.
[23]
According to subsection
11(1) of the Regulations, an application for a permanent resident visa (except
an application by a refugee or a person in similar circumstances) must be made
to a particular visa office (sometimes called a “visa post”). Subsection 11(1)
reads as follows:
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11. (1) An application for a permanent resident visa —
other than an application for a permanent resident visa made under Part 8 —
must be made to the immigration office that serves
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11. (1) L’étranger fait sa demande de visa de
résident permanent — autre que celle faite au titre de la partie 8 — au
bureau d’immigration qui dessert :
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(a) the country where the applicant is residing,
if the applicant has been lawfully admitted to that country for a period of
at least one year; or
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a) soit le pays dans lequel il réside, s’il y a
été légalement admis pour une période d’au moins un an;
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(b) the
applicant's country of nationality or, if the applicant is stateless, their
country of habitual residence other than a country in which they are residing
without having been lawfully admitted.
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b) soit le pays dont il
a la nationalité ou, s’il est apatride, le pays dans lequel il a sa résidence
habituelle — autre que celui où il n’a pas été légalement admis.
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[24]
Part 6 of the Regulations
(sections 73 to 115) states the selection criteria for members of the economic
class. It divides the members of the economic class into three categories:
skilled workers (Division 1 of Part 6), business immigrants (Division 2 of Part
6), and live-in caregivers (Division 3 of Part 6).
[25]
The skilled worker class is
further divided into six subcategories: the federal skilled worker class, the
transitional federal skilled worker class, the Quebec skilled worker class, the
provincial nominee class, the Canadian experience class, and the federal
skilled trades class. All of the appellants are seeking to be selected in the
first subcategory, the federal skilled worker class. The selection criteria for
immigration applicants of that class are set out in sections 75 to 85 of the
Regulations.
[26]
An applicant may be selected
as a member of the federal skilled worker class if: (a) the applicant is
determined pursuant to section 75 of the Regulations to be a skilled worker,
(b) the applicant is determined pursuant to section 76 of the Regulations to
have the ability to become economically established in Canada, and (c) the
applicant intends to reside in a province other than Quebec. The applicant must
meet these conditions on the date on which the application is made and on the
date on which the visa is issued (section 77 of the Regulations).
(1)
Skilled Worker – section 75
[27]
Subsection 75(2) of the
Regulations sets out detailed requirements for the assessment of the
occupational skills of an applicant. If those requirements are met, the applicant
is a “skilled worker” as defined in subsection 75(2).
[28]
Pursuant to subsection 75(2)
of the Regulations, the applicant’s primary occupation must fall into a
prescribed category in the National Occupational Classification matrix
published by Human Resources and Skills Development Canada, and the applicant’s
work experience must meet prescribed conditions. If the primary occupation does
not qualify, or if the work experience conditions are not met, the application
is refused pursuant to subsection 75(3) of the Regulations and is given no
further consideration. Otherwise, the applicant qualifies as a skilled worker
and is assessed for the ability to become economically established in Canada.
(2)
Ability to become
economically established in Canada – section 76
[29]
A skilled worker cannot be
selected as a member of the federal skilled worker class unless it is
determined pursuant to section 76 of the Regulations that he or she will be
able to become economically established in Canada. Section 76 states two sets
of requirements for that assessment. One set of requirements is intended to
assess the applicant’s personal characteristics (paragraph 76(1)(a) of
the Regulations). The other set of requirements is intended to assess the
applicant’s financial resources and employment prospects in Canada (paragraphs
76(1)(b) of the Regulations).
(a)
Personal characteristics –
Regulations, paragraph 76(1)(a)
[30]
To assess a skilled worker’s
personal characteristics, an immigration officer assigns points to six factors
pursuant to paragraph 76(1)(a) of the Regulations. The skilled worker
must obtain a specified minimum number of points to be accepted as a person who
will be able to become economically established in Canada.
[31]
The required minimum number
of points is fixed by the Minister pursuant to subsection 76(2) of the
Regulations based on the number of federal skilled worker class applications
currently being processed, the number of skilled workers projected to become
permanent residents according to a report to Parliament under section 94 of the
IRPA and the potential, taking into account economic and other relevant
factors, for the establishment of skilled workers in Canada.
[32]
The six factors specified in
paragraph 76(1)(a) of the Regulations for the assessment of the
applicant’s personal characteristics are:
(a)
education (section 78 of the
Regulations – from 5 points for a secondary school credential to 25 points for
a university level credential at the doctoral level),
(b)
proficiency in an official
language of Canada (section 79 of the Regulations – a maximum of 24 points for
proficiency in English or French and a maximum of 4 additional points for
proficiency in the other official language),
(c)
work experience (section 80
of the Regulations – a maximum of 15 points for six or more years of work
experience within the last 10 years),
(d)
age (section 81 of the
Regulations – a maximum of 12 points for an applicant between 18 and 35 years
of age, with one less point for each additional year over 35),
(e)
arranged employment in a
specified occupation or skill for full-time work in Canada that is non-seasonal
and indeterminate (section 82 of the Regulations – a maximum of 10 points if
the applicant holds a work permit that meets the conditions in paragraph
82(2)(a), (b) or (d) of the Regulations, or if the applicant has a job offer
from a Canadian employer that meets the conditions in paragraph 82(2)(c) of the
Regulations), and
(f)
adaptability (section 83 of
the Regulations – a maximum of 10 points for certain Canadian work or study
experience of the applicant or the applicant’s accompanying spouse or common
law partner).
[33]
If the immigration officer
conducting the assessment concludes that the criteria in paragraph 76(1)(a) of
the Regulations are not a sufficient indicator of the applicant’s ability to
become economically established in Canada, the officer may substitute a
different evaluation if a second officer concurs (subsections 76(3) and (4) of
the Regulations).
(b)
Financial resources and
employment prospects – paragraph 76(1)(b)
[34]
Paragraph 76(1)(b) of
the Regulations provides that the skilled worker must have transferable and
available funds in a specified amount, or must be awarded points under
paragraph 76(1)(a) of the Regulations for arranged employment that meets
the conditions in paragraphs 82(2)(a), (b) or (d) of the
Regulations.
C.
The normal processing of a
permanent resident visa application
[35]
When an application for a
permanent resident visa is received at the appropriate visa post with the
required fee, an acknowledgement letter is sent to the applicant. The first
examination of the application may not occur for years, so that much of the
information becomes out of date before the application is considered. When the
examination of an application is commenced after a long delay, the applicant
generally is requested to submit updated information. The request for updated
information is assumed by applicants to mean that the processing of their
application is almost complete. However, it is not uncommon for the next step
to take several months.
[36]
Once an officer determines
from the documentation whether the applicant meets the requirements for
selection as a member of the federal skilled worker class, a selection decision
is made. Normally, that decision is documented by the notation “SELDEC” in the
applicant’s file on the Computer Assisted Immigration Processing System
(“CAIPS”) or the notation “Eligibility – Passed” or “Eligibility – Failed” in
the Global Case Management System (“GCMS”). There may be other notes in the
CAIPS or GCMS that document the determination before any SELDEC, Eligibility –
Passed or Eligibility – Failed notation is made.
[37]
The next stage requires a
review of documents relating to admissibility, such as medical and police
documentation. If that review has a positive outcome, the applicant is requested
to pay the required fee and submit a passport. It normally takes two to three
months for the passport to be returned to the applicant with the permanent
resident visa affixed.
[38]
At any time during the
processing, a question may arise as to whether the applicant is eligible for
selection as a member of the federal skilled worker class or is inadmissible.
In that event, the applicant is sent a letter (referred to as a fairness
letter) disclosing the new issue and requiring a response within a specified time.
There is no statutory time limit for determining the new issue.
D.
Section 87.4 of the IRPA
[39]
Section 87.4 came into force
on June 29, 2012. It reads in full as follows:
|
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.
|
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) 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.
|
(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) The fact that an application is terminated under subsection (1)
does not constitute a decision not to issue a permanent resident visa.
|
(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) 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.
|
(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) No person has a right of recourse or indemnity against Her Majesty
in connection with an application that is terminated under subsection (1).
|
(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).
|
[40]
The Minister takes the
position that on June 29, 2012, subsection 87.4(1) terminated the permanent resident
visa applications in issue in this appeal because on that date the applications
met the conditions stated in that provision. No steps were taken by the
Minister after that date to complete the processing of the applications.
[41]
According to evidence presented
for the Minister, the enactment of subsection 87.4(1) was intended to deal with
an unacceptable backlog of applications for permanent resident visas for the
federal skilled worker class.
[42]
Between 2002 and 2012, the
Minister received and processed applications for permanent resident visas from
over 2.4 million persons seeking to be selected as members of the economic
class. That included more than one million applications from persons seeking to
be selected as members of the federal skilled worker class.
[43]
During those years hundreds
of thousands of federal skilled worker applications were processed in the New
Delhi, Islamabad, Manila, Hong Kong and Beijing visa posts. Thousands more
applications from nationals of India, Pakistan, the Philippines and China were
processed at visa posts in Buffalo, London, Paris, Sydney and Singapore.
Despite the number of completed federal skilled worker applications, a
significant backlog developed because the number of applications far exceeded
the number of federal skilled worker applicants that could be accepted under
the government’s annual immigration plans.
[44]
The Minister considered the
existence of a large backlog to be a significant detriment to the immigration
program for federal skilled workers. It reduced the program’s flexibility and
the government’s ability to respond to changing labour market conditions
affecting the prospects of new immigrants to find work and become economically
established in Canada. It also reduced public confidence in the effectiveness
of the immigration system.
[45]
Over the years, attempts
were made to reduce the backlog by increasing the number of applications
processed each year. However, those attempts could not succeed in the face of
the limited number of planned annual admissions to Canada, even when they were
at historically high levels.
[46]
In February of 2008, the
IRPA was amended to authorize the Minister to make binding instructions
reducing or suspending the intake of new applications. However, that step alone
was insufficient to remove the backlog. It was projected that the backlog would
subsist for some years, and that applicants would suffer wait times of seven to
eight years. At the same time, there was evidence of declining income and
higher levels of unemployment among new immigrants. The government considered
that situation to be unacceptable as a matter of policy.
[47]
Section 87.4 was enacted in
order to eliminate the backlog in a single step, enabling the government to
focus on newer permanent resident visa applications from persons with
pre-arranged employment. After its introduction, efforts were made to “mine”
the backlog for potentially successful federal skilled worker applications, and
many successful applications resulted from that effort. However, not all
meritorious applications were or could have been identified. The applications
in issue in this case might have succeeded if they had not been terminated by
subsection 87.4(1).
[48]
The appellants have
suggested that the backlog might have been exacerbated by subsection 11(1) of
the Regulations (enacted in 2002) that stipulated which visa post an applicant
was required to use. Prior to that change, an applicant could choose to submit
the application to a post with a shorter queue. When that was no longer
possible, applicants who were obliged to submit their applications to a high
volume visa post suffered substantial processing delays if the visa post was
not provided with sufficient resources.
[49]
On April 4, 2012,
Citizenship and Immigration Canada (CIC) issued Operational Bulletin 400. It
was intended to explain the effect of section 87.4, which at that time had been
introduced but not enacted. It stated that the processing of applications for
permanent resident visas for members of the federal skilled worker class should
not commence or continue if the application was made before February 27, 2008
and no selection decision was made before March 29, 2012. Operational Bulletin
400 was intended to have the same effect as subsection 87.4(1) before it was
enacted. After a legal challenge, Operational Bulletin 400 was rescinded.
[50]
On June 29, 2012, the date
on which subsection 87.4(1) came into effect, CIC issued Operational Bulletin
442 to provide immigration officers with processing instructions that were
intended to give effect to subsection 87.4(1) as then construed by the
Minister. The parts of Operational Bulletin 442 that reflect the Minister’s
interpretation of subsection 87.4(1) are reproduced as an appendix to these
reasons.
III.
Discussion
[51]
Each appellant has raised
slightly different arguments, but many of their arguments overlap. In my view
the arguments may be reduced to these questions:
(a)
What is the standard of
review?
(b)
In determining whether
subsection 87.4(1) of the IRPA terminated an application for a permanent
resident visa, does subsection 87.4(1) require only that objective facts be
discerned from the application file, or must an immigration officer conduct an
individualized assessment involving the exercise of discretion?
(c)
Does the Canadian Bill of
Rights guarantee the appellants procedural rights (including notice and a
right to be heard) before their applications are determined to be terminated by
subsection 87.4(1) of the IRPA?
(d)
Does the retrospective
effect of subsection 87.4(1) of the IRPA render it invalid as contrary to the
rule of law?
(e)
Do the appellants have a
vested right to have their applications considered under the provisions of the
IRPA in effect when they made their applications?
(f)
Does the manner in which
subsection 87.4(1) of the IRPA was implemented breach the rights of the applicants
under subsection 15(1) of the Charter?
(g)
Does subsection 87.4(1) of
the IRPA breach the appellants’ rights under section 7 of the Charter?
[52]
In the Federal Court, the
Minister did not argue that the applicants have no rights under section 7 or
subsection 15(1) of the Charter. Justice Rennie expressed reservations on that
point but since it was uncontested before him, he declined to make a
determination. Rather, he assumed without deciding that the applicants have
those rights.
[53]
In this Court, the Minister
argues that the applicants do not have rights under section 7 or subsection
15(1) of the Charter. However, for reasons that will become apparent from the
discussion below, I do not consider it necessary to express an opinion on that
point.
A.
Standard of review
[54]
The proceeding in the
Federal Court was in form an application for judicial review. However, there
was no administrative decision maker except the Minister who refused to
consider the appellants’ permanent resident visa applications after June 29, 2012
when subsection 87.4(1) of the IRPA came into effect. That refusal was based on
the Minister’s interpretation of subsection 87.4(1). The parties who addressed
this point agreed that the Minister’s interpretation of subsection 87.4(1) is reviewable
on the standard of correctness.
[55]
In certain circumstances,
the Minister’s interpretation of the IRPA may be reviewed on the standard of
reasonableness. Under that standard, the Minister may be afforded some
deference if the statutory provision contains words of debatable scope or
requires the Minister to make a discretionary decision suffused with factual
determinations, policy considerations or both (see, for example, Agraira v.
Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, at
paragraphs 49 and 50). In this case, however, the words of subsection 87.4(1)
are fairly plain and do not admit of more than one acceptable and defensible
interpretation. In the end, nothing turns on the standard of review of the
Minister’s interpretation of subsection 87.4(1), since I have concluded that
his interpretation of subsection 87.4(1) is correct.
[56]
The facts are undisputed
except those made by Justice Rennie relating to the statistical evidence of the
backlog in various visa posts. The judge considered that evidence in first
instance, not upon a review of a prior administrative decision. Therefore, his
findings of fact and mixed fact and law relating to that evidence are
reviewable on the standard of palpable and overriding error as required by Housen
v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (see Li v. Canada
(Minister of Citizenship and Immigration), 2011 FCA 110 at paragraph 12,
and Saputo Inc. v. Canada (Attorney General), 2011 FCA 69 at paragraph
9).
B.
Determining whether
subsection 87.4(1) applies to an application
[57]
Subsection 87.4(1) of the
IRPA is quoted above and reproduced here for ease of reference:
|
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.
|
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.
|
[58]
The Minister argues that to
identify a permanent resident visa application that falls within the scope of
subsection 87.4(1) it is necessary simply to determine certain facts that are
readily ascertainable upon a review of the application file. According to the
Minister’s interpretation, if an application was made before February 27, 2008
for a permanent resident visa as a member of the federal skilled worker class
(as all of the appellants’ applications were), then it was terminated by
subsection 87.4(1) on June 29, 2012 if (a) no immigration officer determined,
before March 29, 2012, whether the applicant met the selection criteria and
other requirements applicable to that class, or (b) if an immigration officer
made such a determination on or after March 29, 2012 but the application was
not finalized before June 29, 2012.
[59]
Justice Rennie agreed with
the Minister’s interpretation. He concluded that the “selection criteria”
referred to in subsection 87.4(1) means the requirements of section 76 of the
Regulations (entitled “selection criteria”) which states the requirements for
assessing the ability of a skilled worker to become economically established in
Canada. He also concluded that the “other requirements
applicable to [the federal skilled worker class]” means all other
requirements for selection as a member of that class, including those stated in
section 75 of the Regulations (the definition of “skilled worker”).
[60]
No appellant has argued that
an immigration officer erred in determining in his or her case whether or when
the selection criteria and other requirements applicable to the federal skilled
worker class were met. Such a factual dispute may be the subject of a judicial
review application in the Federal Court, as the Minister recognized and as
Justice Rennie found. However, there is no such factual dispute here. The
appellants are arguing that as a matter of statutory interpretation, subsection
87.4(1) is so unclear that its effect on a particular permanent resident visa
application cannot be determined without an individualized assessment in which
an immigration officer exercises some discretion.
[61]
I do not accept this
argument. A decision is discretionary if the law permits more than one possible
outcome on the facts. If the law permits only one possible outcome on the
facts, there is no element of discretion.
[62]
I acknowledge that the
status of any given application may be difficult to discern from the file because
the CAIPS notes or the GCMS notes are unclear or incomplete. No doubt that is
why, for example, Operational Bulletin 442 (appended to these reasons),
instructs immigration officers not to rely only on the customary decision
notations (“SELDEC” in the CAIPS or “Eligibility – Passed” or “Eligibility –
Failed” in the GCMS) when determining whether or when there has been a
selection decision. Officers are instructed to examine all of the notes to see
if and when a selection decision was in fact made even if the customary
notation is absent. However, the possibility of such evidentiary difficulties
cannot by itself transform a factual determination into a discretionary
decision.
[63]
The appellants rely on the
fact that a number of permanent resident visas were issued in error to
applicants who had applied before February 27, 2008 and whose applications
should have been terminated by subsection 87.4(1), based on the Minister’s
interpretation. Those visas were not rescinded. Rather, the Minister exercised
the authority under section 25.2 of the IRPA, citing public policy, to declare
those applicants to be eligible for permanent resident visas. That indicates
some initial confusion about the implementation of subsection 87.4(1). But it
does not follow that the application of subsection 87.4(1) depends upon the
discretionary decision of an immigration officer.
[64]
The appellants also point
out that within an application there may be more than one selection decision.
That could occur if, for example, an officer makes a selection decision at a
certain point in time, but events occur or new facts are discovered that cause
the opposite decision to be made. However, it is always possible to determine
whether a decision described in subsection 87.4(1) was made before March 29, 2012,
or whether the application was finalized by June 29, 2012. That is all
subsection 87.4(1) requires.
[65]
Finally, the appellants rely
on Zhu v. Canada (Minister of Citizenship and Immigration), 2013 FC 155.
I do not consider that decision to be inconsistent with the Minister’s
interpretation of subsection 87.4(1). Mr. Zhu received a final negative
decision dated May 12, 2012. His application file indicated that a negative
selection decision had been made on the same day. The judge concluded that
because the selection decision was made after March 29, 2012 and a final
decision was made before June 29, 2012, subsection 87.4(1) did not apply to his
application. Therefore, that provision could not apply to preclude the judge
from invalidating the final decision on the basis of procedural unfairness and
ordering the application to be reconsidered.
[66]
As mentioned above, the
enactment of subsection 87.4(1) was intended to eliminate a backlog of federal
skilled worker applications that the Minister considered so large as to be
unmanageable within a reasonable time, and that was impeding the government’s
ability to respond to changing labour market conditions as they affected the
prospects of new immigrants. Those were valid considerations pursuant to
section 3 of the IRPA, in particular paragraphs 3(1)(a), (c), and
(e), which are quoted above and repeated here for ease of reference:
|
3. (1)
The objectives of this Act with respect to immigration are
|
3. (1) En matière d’immigration, la présente
loi a pour objet :
|
|
(a) to permit Canada to pursue the
maximum social, cultural and economic benefits of immigration;
|
a) de permettre au Canada de retirer de
l’immigration le maximum d’avantages sociaux, culturels et économiques;
|
|
…
|
[…]
|
|
(c) to support
the development of a strong and prosperous Canadian economy, in which the
benefits of immigration are shared across all regions of Canada;
|
c) de favoriser le développement économique et
la prospérité du Canada et de faire en sorte que toutes les régions puissent
bénéficier des avantages économiques découlant de l’immigration;
|
|
...
|
[…]
|
|
(e) to promote
the successful integration of permanent residents into Canada, while
recognizing that integration involves mutual obligations for new immigrants
and Canadian society ….
|
e) de promouvoir l’intégration des résidents
permanents au Canada, compte tenu du fait que cette intégration suppose des
obligations pour les nouveaux arrivants et pour la société canadienne […]
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[67]
Considering the language,
purpose and context of subsection 87.4(1), it cannot reasonably bear an
interpretation that requires an immigration officer to exercise discretion in
determining whether it terminates a particular application. I do not accept
that Parliament intended to put in place a new discretionary administrative
process to replace the one that led to an unacceptable backlog of many years. I
conclude that the interpretation of subsection 87.4(1) proposed by the Minister
and accepted by Justice Rennie is correct.
C.
Canadian Bill of Rights
[68]
The appellants rely on
section 2(e) of the Canadian Bill of Rights, which guarantees
certain procedural rights in the interpretation and operation of federal laws.
Paragraph 2(e) reads as follows:
|
2. Every
law of Canada shall, unless it is expressly declared by an Act of the
Parliament of Canada that it shall operate notwithstanding the Canadian
Bill of Rights, be so construed and applied as not to abrogate, abridge
or infringe or to authorize the abrogation, abridgment or infringement of any
of the rights or freedoms herein recognized and declared, and in particular,
no law of Canada shall be construed or applied so as to …
|
2. Toute loi du Canada, à moins qu’une loi du
Parlement du Canada ne déclare expressément qu’elle s’appliquera nonobstant
la Déclaration canadienne des droits, doit s’interpréter et
s’appliquer de manière à ne pas supprimer, restreindre ou enfreindre l’un
quelconque des droits ou des libertés reconnus et déclarés aux présentes, ni
à en autoriser la suppression, la diminution ou la transgression, et en
particulier, nulle loi du Canada ne doit s’interpréter ni s’appliquer comme
[…]
|
|
(e) deprive a person of the right to a
fair hearing in accordance with the principles of fundamental justice for the
determination of his rights and obligations;
|
e) privant une personne du droit à une audition
impartiale de sa cause, selon les principes de justice fondamentale, pour la
définition de ses droits et obligations;
|
[69]
Section 2(e) of the Canadian
Bill of Rights guarantees procedural rights before a tribunal or
administrative body that determines individual rights and obligations, but it
does not protect anyone from the right of Parliament to terminate a legal right
by amending a statute: Authorson v. Canada (Attorney General), 2003 SCC
39, [2003] 2 S.C.R. 40, at paragraphs 58 to 61.
[70]
As explained above,
subsection 87.4(1) terminated the appellants’ right to have their permanent
resident visa applications processed, and it did so without expressly or
implicitly requiring an adjudicative process or a discretionary administrative
decision. In my view, section 2(e) of the Canadian Bill of Rights
is of no assistance to the appellants.
D.
Rule of law
[71]
The appellants argue that
subsection 87.4(1) is invalid because it is so arbitrary that it offends the
principle of the rule of law. The appellants characterize the provision as
arbitrary because of its retrospective application to permanent resident visa
applications that were pending before subsection 87.4(1) came into force, which
were terminated without regard to their prospects of success.
[72]
British Columbia v.
Imperial Tobacco Canada Ltd.,
2005 SCC 49, [2005] 2 S.C.R. 473 is instructive on this point. In that case,
tobacco companies challenged the validity of a provincial law that permitted
the province to sue a manufacturer of tobacco products to recover the costs of
providing health care to individuals exposed to the products. It contained a
provision giving the law the retroactive effect necessary to give all of its
provisions full effect, including the abrogation of any limitation periods for
an action for damages alleged to have been caused or contributed to by a
tobacco related wrong. One of the arguments of the tobacco companies was that
the legislation offended the rule of law because of its retroactive effect.
[73]
Justice Major, writing for
the Court, discussed the principles of the rule of law at paragraphs 57 to 60:
57 The rule of
law is “a fundamental postulate of our constitutional
structure” (Roncarelli v. Duplessis, [1959] S.C.R.
121, at p. 142) that lies “at the
root of our system of government” (Reference re Secession of Quebec, [1998] 2 S.C.R.
217, at para. 70). It is expressly acknowledged by the preamble to the Constitution
Act, 1982, and implicitly recognized in the preamble to the Constitution
Act, 1867: see Reference re Manitoba Language Rights, [1985]
1 S.C.R. 721, at p. 750.
58 This Court has
described the rule of law as embracing three principles. The first recognizes
that “the law is supreme over officials of the
government as well as private individuals, and thereby preclusive of the influence
of arbitrary power”: Reference
re Manitoba Language Rights, at p. 748. The second “requires the creation and maintenance of an
actual order of positive laws which preserves and embodies the more general
principle of normative order”: Reference
re Manitoba Language Rights, at p. 749. The third requires that “the relationship between the state and the
individual ... be regulated by law”: Reference re Secession of Quebec, at
para. 71.
59 So understood,
it is difficult to conceive of how the rule of law could be used as a basis for
invalidating legislation such as the Act based on its content. That is because
none of the principles that the rule of law embraces speak directly to the
terms of legislation. The first principle requires that legislation be applied
to all those, including government officials, to whom it, by its terms,
applies. The second principle means that legislation must exist. And the third
principle, which overlaps somewhat with the first and second, requires that
state officials' actions be legally founded. See R. Elliot, “References, Structural Argumentation and the
Organizing Principles of Canada's Constitution” (2001), 80 Can. Bar Rev. 67, at pp. 114-15.
60 This does not
mean that the rule of law as described by this Court has no normative force. As
McLachlin C.J. stated in [Babcock v. Canada (Attorney General), [2002] 3
S.C.R. 3, 2002 SCC 57], at para. 54, “unwritten constitutional principles”, including the rule of law, “are capable of limiting government actions”. See also Reference re Secession of Quebec,
at para. 54. But the government action constrained by the rule of law as
understood in Reference re Manitoba Language Rights and Reference re
Secession of Quebec is, by definition, usually that of the executive and
judicial branches. Actions of the legislative branch are constrained too, but
only in the sense that they must comply with legislated requirements as to
manner and form (i.e., the procedures by which legislation is to be enacted,
amended and repealed).
[74]
Justice Major went on to
acknowledge the existence of a debate about whether the rule of law might
embrace additional principles, and the extent to which those additional
principles might apply to invalidate legislation based on its content. However,
he did not accept any extension of the established principles. He also rejected
the argument of the tobacco companies that the rule of law requires that
legislation be prospective. In my view, this Court cannot, in the face of Imperial
Tobacco, accept the argument of the appellants that subsection 87.4(1)
offends the rule of law because it is retrospective.
E.
Retrospective effect and
vested rights
[75]
The appellants argue, based
primarily on Dikranian v. Quebec (Attorney General), 2005 SCC 73, [2005]
3 S.C.R. 530, that when they submitted their permanent resident visa
applications, they had a vested right to have their applications processed to
completion and to have them considered under the statutory provisions and
regulations in effect when the applications were submitted. There is no merit
to this argument.
[76]
The appellants had the right
to apply for permanent resident visas and, when they submitted their
applications, they had the right to have their applications considered in
accordance with the IRPA. However, they did not have the right to the
continuance of any provisions of the IRPA that affected their applications. Nor
did they have the right to have their applications considered under the
provisions of the IRPA as in effect when they submitted their applications. I
reach that conclusion for the following reasons.
[77]
Parliament has the authority
to enact laws governing immigration and to amend those laws from time to time.
Parliament also has the authority to enact laws that have retrospective effect,
although it is presumed that retrospective effect is not intended unless the
law is so clear that it cannot reasonably be interpreted otherwise: Gustavson
Drilling (1964) Ltd. v. Canada (Minister of National Revenue), [1977] 1
S.C.R. 271 at pages 279 to 283, Imperial Tobacco Canada Ltd., cited
above, at paragraphs 69 to 72.
[78]
I have already concluded,
for reasons stated earlier in these reasons, that subsection 87.4(1) of the
IRPA is sufficiently clear to terminate the appellants’ applications
retrospectively. That distinguishes this case from Dikranian, in which
the Supreme Court of Canada held that certain amendments to provincial
legislation were not clear enough to abrogate contractual rights of students who
borrowed money from financial institutions prior to the amendments.
[79]
The appellants rely on Choi
v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 763
(FCA). In my view, this case does not assist the applicants because it does not
deal with a legislative change that was expressed to have retrospective effect.
Rather, it deals with a remedy for an administrative error that caused
prejudice to an applicant because of a change to the Regulations. Canadian
authorities had informed Mr. Choi that he would qualify to apply for
immigration to Canada (meaning that he would have enough “points” for his
occupation under the regime then in effect). He was given a pre-application
questionnaire but he was not told that he could submit his formal application
immediately. Nor was he told that changes to the eligibility provisions for
applicants in his occupation were imminent. He returned the completed
questionnaire a few days later. The eligibility changes were made after he
returned the questionnaire but before he submitted his formal application. The
Court held the Canadian authorities, having undertaken to provide information
to Mr. Choi, were obliged to provide correct information and they had failed to
do so. The Court ordered the situation to be remedied by treating Mr. Choi as
though he had submitted his application on the date on which he submitted his
completed pre-application questionnaire, which preceded the eligibility
changes.
[80]
The appellants also rely on McDoom
v. Canada (Minister of Manpower and Immigration), [1978] 1 F.C. 323 (T.D.).
That case deals with changes to the Regulations that were made after an
applicant submitted an application. The Court held that the applicant was
entitled to be assessed under the Regulations as they read at the date of
application. However, this case is of no assistance to the appellants because
there is no suggestion that the changes to the Regulations in issue were
intended or stated to have retrospective effect. Indeed, it appears that the
Governor in Council has only recently been authorized to enact Regulations that
may affect pending applications for permanent resident visas (see subsection
5(1.1) of the IRPA, added by section 702 of the Jobs, Growth and Long-term
Prosperity Act, effective June 29, 2012).
[81]
Finally, the appellants cite
Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4
F.C. 189 (F.C.). That case is of no assistance to the appellants either. In
that case, legislative amendments affecting the applicants were found to have
retrospective effect unless the applications were processed by March 31, 2003.
On February 21, 2003, the Court ordered the Minister to process the
applications by March 31, 2003.
F.
Subsection 15(1) of the Charter
[82]
The appellants rely on
subsection 15(1) of the Charter, which reads as follows:
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15. (1) Every individual is equal before and under the law and
has the right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical
disability.
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15. (1) La loi ne fait acception de personne et
s’applique également à tous, et tous ont droit à la même protection et au
même bénéfice de la loi, indépendamment de toute discrimination, notamment
des discriminations fondées sur la race, l’origine nationale ou ethnique, la
couleur, la religion, le sexe, l’âge ou les déficiences mentales ou
physiques.
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[83]
The appellants argue that
the manner in which subsection 87.4(1) of the IRPA was implemented breaches
their equality rights under subsection 15(1) of the Charter because of the
differential allocation of resources to different visa posts, combined with
changes to the processing rules that required post-2008 applications to be
given priority. They argue that the visa posts to which applicants from China,
the Philippines and Pakistan were required to submit their permanent resident
visa applications were provided with proportionally less resources than visa
posts that would process applications from other countries. They say that the
result is discrimination on the basis of “national
origin in consideration of country of residence”, which they argue is a
single analogous ground.
[84]
The burden of establishing
discrimination contrary to subsection 15(1) of the Charter lies on the
appellants. Among other things, the appellants were required to adduce evidence
proving on the balance of probabilities that the allocation of resources was
discriminatory. To discharge that burden, the appellants relied primarily on
statistics they obtained from the Minister about the different rates of completed
applications at various visa posts, and then invited Justice Rennie to draw
inferences and conclusions from the statistics. The Minister submitted
affidavit evidence explaining the variation by reference to the workload at
various visa posts and other factors.
[85]
Although the thrust of the
appellants’ claim is that there has been a discriminatory allocation of
resources, the Minister did not adduce detailed evidence on the point. The
appellants could have converted all or part of their applications to actions in
order to get discovery and try this point, or they could have subpoenaed
witnesses: see Federal Courts Act, R.S.C. 1985, c. F-7, subsection
18.4(2); Federal Courts Rules, SOR/98-106, Rules 41 and 316. But they
did not do so.
[86]
Neither party submitted expert
evidence that analyzed the statistics in any way. There was no attempt on the
part of the appellants to adduce expert evidence to refute the Minister’s
position that the factors cited by the Minister are a sufficient explanation of
the different rates of processing at various visa posts.
[87]
Justice Rennie held that
country of residence is not an analogous ground, but he considered the claim of
discrimination on the basis of national origin and concluded, essentially for
two reasons, that the evidence does not support the appellants’ claim. First,
Justice Rennie found that the appellants, and the thousands of people they
represent, share no commonality of race, national origin or ethnicity. Second,
he found in the Minister’s evidence cogent explanations for the different
processing rates that had nothing to do with the personal characteristics of
the appellants or those they represent. Based on his appreciation of the
evidence, Justice Rennie was unwilling to draw inferences favourable to the
appellants’ case. I have been able to discern from the record no palpable and
overriding error in this conclusion.
[88]
It is true that the
statistics indicate that there were different rates of processing in different
visa posts. For example, approximately 90% of pre-2008 federal skilled worker
applications were processed in the visa posts serving Europe and the Americas,
while approximately 40% were processed in the visa posts serving Africa, the
Middle East, Asia and the Pacific. In the end, over 90% of the terminated files
originated in Africa, the Middle East, Asia and the Pacific.
[89]
However, those different
rates of processing had numerous causes. Each visa post had a varied workload
that included not only federal skilled worker applications but also visas for
visitors, international students and foreign workers that were given priority
because they were time sensitive. Some visa posts were required to give
priority to refugee claimants or, in the case of Manila, applicants under the
Live-In Caregiver Program or the Provincial Nominee Program. The Buffalo visa
post gave priority to applicants already lawfully in Canada.
[90]
The government’s ability to
resource certain visa offices was also influenced by external factors such as
natural disasters, political instability and regional conflicts. There were
significant variations in staff turnover and limitations based on physical
premises and security concerns. Some visa posts were affected by poor local
infrastructure that slowed down mail service and other means of communication,
or rendered them unreliable. Local conditions also affected the time required
to verify documentation relating to birth, education and training credentials.
[91]
Justice Rennie found
particularly compelling the evidence that, because of the internal transfer of
applications, the visa posts in Buffalo, London and Paris processed a
significant number of applicants from India, China and Pakistan. For example,
69% of the applications processed in Buffalo, which had one of the highest
clearance rates, were applications from Asia, the Middle East and Africa.
[92]
Given the evidentiary
limitations of the record, I do not consider it necessary to express any
opinion on the legal issues considered by Justice Rennie in the context of the
appellants’ claim under subsection 15(1) of the Charter, including the issue as
to whether the appellants, as foreign nationals outside Canada who have applied
for permanent resident visas, have any rights under subsection 15(1) of the
Charter.
[93]
I have not ignored the
argument of the appellants that Justice Rennie was wrong when he said that the
appellants raised no precise or particular deficiency that called into question
the accuracy or reliability of the Minister’s evidence. They say they raised
the concern that the Minister had a “monopoly” on the evidence, that the
statistical data was incomplete and ambiguous, and that the Minister failed to
produce any witnesses that were able to address questions about visa office
operations, from which Justice Rennie should have drawn an inference adverse to
the Minister.
[94]
I find this argument
unpersuasive. The onus of proving a breach of subsection 15(1) of the Charter
was on the appellants, not the Minister. The appellants apparently believed
that they could prove their case with the statistical evidence provided by the
Minister. In the end, Justice Rennie found that that evidence did not discharge
the appellant’s burden of proof, a finding he made without palpable and
overriding error. As mentioned above, the appellants chose not to adduce
rebuttal evidence and did not pursue steps to obtain more and better evidence.
Their affirmative case in support of a finding of discrimination fell short of
the mark, rendering irrelevant any deficiencies in the Minister’s evidence.
G.
Section 7 of the Charter
[95]
The appellants rely on
section 7 of the Charter, which reads as follows:
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7.
Everyone has the right to life, liberty and security of the person and the
right not to be deprived thereof except in accordance with the principles of
fundamental justice.
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7. Chacun a droit à la vie, à la liberté et à
la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en
conformité avec les principes de justice fondamentale.
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[96]
This provision is engaged
only when a person’s life, liberty or personal security is in jeopardy because
of a law or its application. Justice Rennie concluded that the appellants’
section 7 claim fails at this threshold question. I agree, substantially for
the reasons he gave.
[97]
The appellants are foreign
nationals who reside outside Canada. Their only connection to Canada is that
they have applied under a Canadian statute for the right to become permanent
residents. They have no legal right to that status, and no right to enter or
remain in Canada unless they attain that status. They had the right to seek
permanent resident status under the IRPA, and when they did so they had the
right to have their applications considered under the IRPA. However, neither of
those rights is a right to life, liberty or security of the person. When their
applications were terminated by subsection 87.4(1), they were not deprived of
any right that is protected by section 7 of the Charter.
[98]
The appellants argue that if
their applications had been accepted they would have acquired the right to
enter and remain in Canada, which means necessarily that they would also have
acquired all Charter rights except those given only to citizens of Canada. They
argue that, because of the importance of their objective of becoming permanent
residents of Canada, the loss of their right to have their permanent resident
visa applications considered is such a blow to their psychological and physical
integrity that it should be construed as the loss of a right that is within the
scope of section 7 of the Charter.
[99]
I do not accept this
argument. I have no doubt that the termination of the appellants’ permanent
resident visa applications caused them financial loss, but financial loss alone
does not implicate the rights to life, liberty and security of the person. The
termination of their applications could have been profoundly disappointing to
the appellants and perhaps for some psychologically damaging, but the evidence
does not establish the high threshold of psychological harm necessary to
establish a deprivation of the right to security of the person: Blencoe v.
British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307.
IV.
Conclusion
[100]
I would answer the certified
questions as follows:
(a)
Does subsection 87.4(1) of
the IRPA terminate by operation of law the applications described in that
subsection upon its coming into force, and if not, are the applicants entitled
to mandamus?
Answer:
Subsection 87.4(1) terminated the applications automatically on June 29, 2012.
After that date, the Minister had no legal obligation to continue to process
the applications. The appellants are not entitled to mandamus.
(b)
Does the Canadian Bill of
Rights mandate notice and an opportunity to make submissions prior to
termination of an application under subsection 87.4(1) of the IRPA?
Answer:
No.
(c)
Is section 87.4 of the IRPA
unconstitutional, being contrary to the rule of law or sections 7 and 15 the Charter?
Answer:
No.
[101]
I would dismiss all of the
appeals.
“K. Sharlow”
“I agree.
Eleanor R. Dawson J.A.”
“I agree.
David
Stratas J.A.”
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