Date: 20100331
Docket: IMM-1525-09
Citation: 2010 FC 352
Ottawa, Ontario, March 31, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
KATHERINE
SALAHOVA
Applicant
and
THE MINSITER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Did
Ms. Salahova “make” an application for a permanent resident visa as a member of
the Skilled Worker Class before February 27, 2008? If she did, she is entitled to
an assessment in accordance with Sections 75 and following of the Immigration
and Refugee Protection Regulations. If not, by virtue of a Ministerial
Instruction issued pursuant to Section 87.3 of the Immigration and Refugee
Act, her application could not be processed because the Minister has decreed
we have no need at this time for immigrants with work experience as a secondary
school teacher or as an elementary school teacher of English.
[2]
Ms.
Salahova mailed her application from her home in Minsk, Belarus, to
the Canadian Embassy in Warsaw, Poland, on February
25, 2008. It was received at the Embassy on March 3, 2008. The Immigration and
Visa Section of the Embassy informed her months later that, in accordance with
the Minister’s Instructions, since she did not have an arranged employment
offer, was not legally residing in Canada for at least one year as a temporary
worker or as an international student, or did not have work experience in any
of the occupations listed in the Instruction, her application was not eligible
to be processed. This is a judicial review of that decision.
[3]
What
Ms. Salahova lost is an opportunity. She was aware from the outset that she was
short of the required number of points in the selection criteria, but was
hopeful that there were circumstances to allow the Visa Officer to carry out a
substituted evaluation based on the likelihood of her ability to become
economically established in Canada, as contemplated by Regulation 76.
[4]
Unfortunately
for Ms. Salahova, she is facing a statute with clear and specific retroactive
effect.
[5]
Section
87.3 of IRPA only became law close to four months after her application was
received at the Canadian Embassy. Section 87.3 was part of Bill C-50, An Act to implement
certain provisions of the budget tabled in Parliament on February 26, 2008 and
to enact provisions to preserve the fiscal plan set out in that budget. It received
Royal Assent June 18, 2008.
[6]
Section
87.3 allows the Minister to issue instructions aimed at reaching Canada’s
immigration goals. More particularly Section 87.3(3) provides:
|
87.3 (3) For the purposes
of subsection (2), the Minister may give instructions with respect to the
processing of applications and requests, including instructions
(a) establishing
categories of applications or requests to which the instructions apply;
(b) establishing an
order, by category or otherwise, for the processing of applications or
requests;
(c) setting the
number of applications or requests, by category or otherwise, to be processed
in any year; and
(d) providing for
the disposition of applications and requests, including those made subsequent
to the first application or request.
|
87.3 (3) Pour l’application
du paragraphe (2), le ministre peut donner des instructions sur le traitement
des demandes, notamment en précisant l’un ou l’autre des points
suivants :
a)
les catégories de demandes à l’égard desquelles s’appliquent les
instructions;
b)
l’ordre de traitement des demandes, notamment par catégorie;
c)
le nombre de demandes à traiter par an, notamment par catégorie;
d)
la disposition des demandes dont celles faites de nouveau.
|
[7]
Although
there is a presumption against a statute having retroactive effect, Section 120
of Bill C-50 specifically provided:
|
Transitional Provision
120. Section 87.3 of the Immigration and Refugee Protection
Act applies only to applications and requests made on or after February
27, 2008.
|
Disposition transitoire
120. L’article 87.3
de la Loi sur l’immigration et la protection des réfugiés ne
s’applique qu’à l’égard des demandes faites à compter du 27 février 2008.
|
[8]
Ms.
Salahova’s position is that she “made” the application when she mailed it on
February 25. Although the Minister has quibbled on this point, I am satisfied
that she sent it by mail that day, and that it was only received on March 3.
[9]
The
question then is whether the application was “made on or after February 27,
2008” or “faite à compter du 27 février 2008”, within the meaning of Bill C-50.
[10]
The
Minister’s Instructions were only published in the Canada Gazette on November
29, 2008.
[11]
Unfortunately,
the Instructions use many words which may or may not mean the same thing, such
as:
a. “The
instructions only apply to applications…made on or after February 27,
2008”
b. “All
applications made prior to February 27, 2008 shall be processed in the
manner existing at the time of application”
c. “Federal
Skilled Worker Application submitted on or after February 27, 2008…”
d. “Requests made
on the basis of humanitarian and compassionate grounds…” (not applicable in
this situation)
e. “Applicants
to the Federal Skilled Worker Program whose applications were received
on or after February 27, 2008…will not proceed for processing…”
[12]
The
French version consistently uses the word “présentées” rather than “faites”,
the term used in the Act.
[13]
Certainly
the French version is quite straightforward and, in my opinion, means
“received” at or “submitted” to the Embassy. However, the Minister’s
Instructions must conform to Bill C-50, which begs the question whether the
application was “made” or “faites” when it was mailed on February 25, 2008 or only
when it was received at the Embassy on March 3, 2008.
[14]
If
we were to draw an analogy to contracts by correspondence, the application
should be treated as an offer and would only come into effect when received.
However, there is a wealth of jurisprudence which deals with applications made
under IRPA or its predecessor acts.
[15]
One
problem has been whether an application was “locked-in” when received by the
immigration authorities or when it was processed. There can be a considerable
delay. It is now accepted that reception trumps processing (Wong v. Canada (Minister of Employment
and Immigration (1986),
64 N.R. 309 (F.C.A.)). Some decisions turn on the specific provisions of the
Regulations, such as deemed receipt, absent actual proof to the contrary, occurring
a specific number of days after a notice was mailed.
[16]
In Wong,
above, Mr. Justice Mahoney said:
The visa could not be issued or refused except by a visa officer
who is, by definition, an officer stationed outside Canada. Any processing required to
be done by the visa officer would necessarily have to be done outside Canada. It does seems to me,
however, that an application for an immigrant visa is made when it duly
initiates the process leading to the issue or refusal of the visa and not only
when that processing is committed to the particular official authorized to
dispose of the application.
[17]
“Lock-in”
dates are often important because of a backlog in applications.
[18]
In Choi
v. Canada (Minister of Employment
of Immigration),
[1992] 1 F.C. 763 (C.A.), Mr. Justice MacGuigan stated at paragraph 10:
In light of Wong, I must give effect to this new argument
presented by the appellant that the "lock-in" date for occupational
assessment has always rightly been the date of the receipt, by the Department,
of the application. […]
[19]
A
more recent decision of the Federal Court of Appeal to the same effect is Hamid
v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 217, [2007] 2 F.C.R. 152, 54 Imm.
L.R. (3d) 163.
[20]
Consequently,
I must conclude that Ms. Salahova’s application was not “made” within time. I
would have been better if the Minister’s Instruction was more consistent in its
language, but in context “made,” “received” and “submitted” can only mean the
same thing.
[21]
Ms.
Salahova argued in the alternative that the result was procedurally unfair. In
one sense her situation is unfortunate. Obviously, if she knew on February 25
what the law was going to be, with retroactive effect, she would not have gone through
the bother of applying in the first place. However, Parliament was
constitutionally empowered to do what it did, as was the Minister under Section
87.3 of IRPA. As reaffirmed by the Court of Appeal in dela Fuente v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 186, [2007] 1 F.C.R. 387, 53 Imm.
L.R. (3d) 171 at para. 19:
[…] The doctrine of legitimate expectations is a procedural
doctrine which has its source in common law. As such it does not create
substantive rights and cannot be used to counter Parliament’s clearly expressed
intent (Canada (M.E.I.) v. Lidder, [1992] F.C.J. No. 212 (F.C.A.) at
paras. 3 and 27).
[22]
In
the circumstances, I am unable to certify any question which would permit an
appeal to the Federal Court of Appeal.
ORDER
FOR
REASONS GIVEN;
THIS COURT
ORDERS that:
1. The
application for judicial review is dismissed.
2. There is no
serious question of general importance to certify.
“Sean Harrington”
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