Date:
20140314
Docket:
IMM-3855-12
Citation:
2014 FC 253
Ottawa, Ontario,
March 14, 2014
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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XIN YU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act] and section 18.1 of the Federal
Courts Act, RSC 1985, c F-7. The Applicant is requesting an order of
mandamus with respect to his application
for permanent residence in Canada as a member of the Federal Skilled Worker [FSW]
class.
BACKGROUND
[2]
The
Applicant is a citizen of China. He submitted an application for Permanent Residence
as a FSW through the Beijing visa office on or about 7 December 2007. After he
was married in August 2008, his spouse was included in his application as a
dependent.
[3]
On
20 October 2010, a Program Assistant at the Beijing Embassy reviewed the Applicant’s
application and assessed it against the selection criteria listed in section 76
of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations].
Based on this review, the Program Assistant calculated that the Applicant would
receive 68 points, and noted this total in his file on the Computer-Assisted
Immigration Processing System [CAIPS].
[4]
On
29 March 2012, the Federal government proposed amendments to the Act. These
amendments included the addition of section 87.4, which terminated FSW applications
filed before 27 February 2008, unless an officer had determined before 29 March
2012 that the FSW selection criteria and other statutory requirements were met.
[5]
On
29 June 2012, section 87.4 of the Act came into force. On 17 December 2012, the
Applicant received correspondence from Citizenship and Immigration Canada [CIC]
informing him that since a selection decision had not been made on his
application before 29 March 2012, his application had been terminated by
operation of law.
[6]
This
application for judicial review was originally included as part of a
representative proceeding challenging the termination of some 1400 FSW
applications under section 87.4, which has now been heard and determined by my
colleague Justice Rennie: see Tabingo v Canada (Minister of Citizenship and
Immigration), 2013 FC 377 at paras 31 and 36 [Tabingo]. Justice
Rennie dismissed the applications, while certifying certain questions of
general importance under subsection 74(d) of the Act, and an appeal to the
Federal Court of Appeal is currently under way (Federal Court of Appeal File No.
A-185-13). However, prior to the determination of Tabingo, above, the Court
had granted the Applicant permission to file a separate application and record on
9 January 2013, and leave on that separate application was granted on 6
September 2013. The Applicant argues that the factual basis of his claim
differs from the claims at issue in the Tabingo proceeding, and that the
Court should reach a different conclusion.
STATUTORY
PROVISIONS
[7]
The
following provisions of the Act are applicable in these proceedings:
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Application made before February 27, 2008
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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Demandes antérieures au 27 février 2008
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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[8]
The
following provisions of the Regulations are applicable in these proceedings:
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Selection
criteria
76.
(1) For the purpose of determining whether a skilled worker, as a member of
the federal skilled worker class, will be able to become economically
established in Canada, they must be assessed on the basis of the following
criteria:
(a)
the skilled worker must be awarded not less than the minimum number of
required points referred to in subsection (2) on the basis of the following
factors, namely,
(i)
education, in accordance with section 78,
(ii)
proficiency in the official languages of Canada, in accordance with section
79,
(iii)
experience, in accordance with section 80,
(iv)
age, in accordance with section 81,
(v)
arranged employment, in accordance with section 82, and
(vi)
adaptability, in accordance with section 83; and
(b)
the skilled worker must
(i)
have in the form of transferable and available funds, unencumbered by debts
or other obligations, an amount equal to one half of the minimum necessary
income applicable in respect of the group of persons consisting of the
skilled worker and their family members, or
(ii)
be awarded points under paragraph 82(2)(a), (b) or (d) for arranged
employment, as defined in subsection 82(1), in Canada.
Number
of points
(2)
The Minister shall fix and make available to the public the minimum number of
points required of a skilled worker, on the basis of
(a)
the number of applications by skilled workers as members of the federal
skilled worker class currently being processed;
(b)
the number of skilled workers projected to become permanent residents
according to the report to Parliament referred to in section 94 of the Act;
and
(c)
the potential, taking into account economic and other relevant factors, for
the establishment of skilled workers in Canada.
[…]
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Critères
de sélection
76.
(1) Les critères ci-après indiquent que le travailleur qualifié peut réussir
son établissement économique au Canada à titre de membre de la catégorie des
travailleurs qualifiés (fédéral) :
a)
le travailleur qualifié accumule le nombre minimum de points visé au
paragraphe (2), au titre des facteurs suivants :
(i)
les études, aux termes de l’article 78,
(ii)
la compétence dans les langues officielles du Canada, aux termes de l’article
79,
(iii)
l’expérience, aux termes de l’article 80,
(iv)
l’âge, aux termes de l’article 81,
(v)
l’exercice d’un emploi réservé, aux termes de l’article 82,
(vi)
la capacité d’adaptation, aux termes de l’article 83;
b)
le travailleur qualifié :
(i)
soit dispose de fonds transférables et disponibles — non grevés de dettes ou
d’autres obligations financières — d’un montant égal à la moitié du revenu
vital minimum qui lui permettrait de subvenir à ses propres besoins et à ceux
des membres de sa famille,
(ii)
soit s’est vu attribuer des points aux termes des alinéas 82(2)a), b) ou d)
pour un emploi réservé, au Canada, au sens du paragraphe 82(1).
Nombre
de points
(2)
Le ministre établit le nombre minimum de points que doit obtenir le
travailleur qualifié en se fondant sur les éléments ci-après et en informe le
public :
a)
le nombre de demandes, au titre de la catégorie des travailleurs qualifiés
(fédéral), déjà en cours de traitement;
b)
le nombre de travailleurs qualifiés qui devraient devenir résidents
permanents selon le rapport présenté au Parlement conformément à l’article 94
de la Loi;
c)
les perspectives d’établissement des travailleurs qualifiés au Canada, compte
tenu des facteurs économiques et autres facteurs pertinents.
[…]
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ISSUES
[9]
The
Applicant raises the following issue:
a.
Is
the Applicant’s application terminated by operation of section 87.4 of the Act?
ARGUMENTS
The Applicant
[10]
The
Applicant submits that the CAIPS notes show that an officer established, prior
to 29 March 2012, that the Applicant met the selection criteria for the FSW
class. As such, section 87.4 ought not to apply to him.
[11]
The
Applicant says that section 87.4 does not terminate all FSW applications
received before 27 February 2008. Rather, it selectively terminates certain of
these applications. For each file, he argues, an individualized assessment must
be made as to whether the file was reviewed by an officer and a determination
was made prior to 29 March 2012 that the applicant met the selection criteria.
In this case, he argues, the CAIPS notes show that a determination was made on 20
October 2010 that he met the selection criteria. As such, his application
should not have been automatically terminated under section 87.4.
[12]
The
Applicant argues that this interpretation is confirmed by reviewing Operational
Bulletin 442 [OB 442], which provides instructions for processing FSW
applications received prior to 27 February 2008 in light of the enactment of
section 87.4. He says that OB 442 presents three scenarios where an FSW
application received before 27 February 2008 will not be terminated: 1) where a
positive determination has been made and entered into the processing system
prior to 29 March 2012; 2) where a selection decision was not entered into the processing
system, but the file notes prior to 29 March 2012 clearly state that the
selection criteria have or have not been met; and 3) where a negative decision
was previously made but the file was re-opened due to an order of a Superior
Court (including the Federal Court) or a settlement agreement entered into by
way of a Court order. The Applicant argues that he falls within the second
category: while no final selection decision was entered into the processing
system, the CAIPS notes clearly state that he met the selection criteria.
i. Selection
criteria under section 76 of the Regulations
[13]
The
Applicant submits that the term “selection criteria” in section 87.4 refers to
the “points system” established by section 76 of the Regulations. FSW
applicants must receive at least 67 points. Since the Applicant was awarded 68
points, he met the selection criteria.
[14]
The
Applicant argues that section 87.4 must be interpreted restrictively using the
principles of statutory interpretation. The provision does not state that a
final selection decision must have been made before 29 March 2012 in order to
avoid termination of the application. The provision makes no mention of a final
decision. Rather, it states that it must have been “established” by an officer
prior to 29 March 2012 that the Applicant met the selection criteria. In this
case, he argues, this requirement was met, because the CAIPS notes entered on
20 October 2010 show an officer’s assessment that he met the selection
criteria.
[15]
The
Applicant does not dispute the Respondent’s assertion that a Program Assistant
does not have the authority to make a final decision on the Applicant’s FSW
application. However, he argues that section 87.4 does not require a final
decision. He says that OB 442, discussed below, makes no distinction between an
assessment made by a Program Assistant and an assessment made by a visa
officer.
[16]
While
the Applicant maintains that a final selection decision is not required under
section 87.4, he notes that CIC inquiries into admissibility criteria, such as
health and security checks, are indications that such a decision has been made.
He says it is CIC procedure to request a medical examination only after an
applicant has been found to meet the selection criteria, and the CAIPS notes
reveal that medical checks were initiated on his application on 23 November
2010. This is indicated by the notation “IMM1017S REQUESTED: 23-11-2010”, and suggests
that a positive selection decision had been made. The Applicant says that the
Respondent’s submissions on this point are contradictory: the Respondent
acknowledges at one point that medical checks may have been triggered, but
argues elsewhere that the fact that medical checks were not initiated is
evidence that the review of the Applicant’s application did not result in a
favourable selection decision.
ii. Operational
Bulletin 442
[17]
The
Applicant asserts that OB 442, mentioned above, entitles him to have his
application processed to a final decision. OB 442 states that a decision as to
whether the applicant meets the selection criteria “was made” prior to 29 March
2012 if “the file notes clearly state that the selection criteria have or have
not been met, but a selection decision has not yet been entered into the
processing system.” Here, it is clear that a Program Assistant reviewed the
file on 20 October 2012, after the Applicant had submitted everything that was
required, and awarded the Applicant 68 points. Therefore, the Program Assistant
made a determination that the Applicant met the selection criteria.
[18]
The
Applicant says that the language of OB 442 supports his view that section 87.4
does not require a final decision. OB 442 recommends processing applications to
a final decision in cases where it was established before 29 March 2012 that
the applicant met the selection criteria, but the application was not finalized
prior to 29 June 2012. This indicates that the word “established” in section
87.4 does not mean that a final selection decision must have been made.
[19]
Furthermore,
none of the scenarios described in OB 442 that indicate that a selection decision
was “not made” apply to the Applicant. Apart from additional documentation relating
to the birth of his son, which was requested on 17 April 2012, no further
documentation was requested from him that could have served to inform of a
selection decision.
The Respondent
i. Application
Properly Identified as Terminated
[20]
The
Respondent asserts that the Applicant’s application was terminated when
subsection 87.4(1) came into force on 29 June 2012. Only a conclusive
determination by a visa officer before 29 March 2012 that the Applicant met the
selection criteria would avoid termination, and such a determination did not
occur.
[21]
For
a FSW applicant who applied before 27 February 2008 to avoid having their
application terminated, he or she must demonstrate: i) the existence of a conclusive
selection decision; ii) made on or before 28 March 2012; iii) by an officer
authorized by law to assess the selection criteria: Tabingo, above, at
para 28.
[22]
The
Respondent says that the word “established,” which precedes the phrase “meets
the selection criteria,” envisions a conclusive determination on the selection
criteria. When used in a statutory provision, the word “established” requires
that the fact in question be demonstrated on a balance of probabilities: Opitz
v Wrzesnewskyj, 2012 SCC 55 at paras 53 and 172.
[23]
The
Program Assistant who conducted the review was not a visa officer or a
Designated Immigration Officer and was not authorized to make a selection
decision. While the term “officer” is not defined in the Act, section 2 of the
Regulations defines it to mean “a person designated as an officer by the
Minister under subsection 6(1) of the Act.”The
CIC Instruments of Designation and Delegation stipulate which officials at visa
posts are authorized to assess FSW applications based on the FSW selection
criteria. The Program Assistant lacked the authority to make a selection
decision, and was not an “officer” as contemplated in subsection 87.4(1).
[24]
Furthermore,
the Respondent argues, the 20 October 2010 paper screening was not a selection
decision. It was tentative, not conclusive. It outlined the points that the
Applicant might receive based on the selection criteria, pending the receipt of
further information. For example, three points were preliminarily allocated for
adaptability, but this was subject to confirmation of the Applicant’s wife’s
educational credentials. Tabingo, above, at para 28 confirmed that a
paper screening is not a selection decision as envisioned in subsection
87.4(1). OB 442 also confirms that a preliminary review of the file does not
qualify as a selection decision pursuant to paragraph 87.4(1), and that no
decision could have been made when further information had been requested but
not assessed.
[25]
As
further evidence that a favourable selection decision was not made, the
Respondent notes that the security, criminality or medical checks that would
have resulted from such a decision were not initiated.
[26]
The
Respondent argues that the rules of statutory interpretation require that
subsection 87.4(1) be given a large and liberal interpretation that best
ensures the attainment of its objects: Interpretation Act, RSC 1985, c
I-21, section 12. The terms in the provision must be read in their entire
context and in their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act, and the intention of Parliament: Rizzo
& Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27. This Court has affirmed that
the language in subsection 87.4(1) displaces the presumptions against
retrospectivity and interference with vested rights that might otherwise
warrant a restrictive interpretation: Tabingo, above, at paras 22-23 and
29.
[27]
Subsection
87.4(1) does not require an individualized assessment of the case for
non-termination before a FSW application can be identified as terminated. The
factual criteria for termination either do or do not exist: Tabingo, above,
at paras 31 and 36. Subsection 87.4(1) provides no discretion to avoid
termination if these factual criteria are met.
ii. Mandamus
Cannot be Issued
[28]
The
Respondent submits that mandamus cannot be issued because the
application was terminated by operation of law pursuant to paragraph 87.4(1).
Mandamus cannot lie to compel a decision on an application that no longer
exists: Shukla v Canada (Minister of Citizenship and Immigration), 2012
FC 1461 at paras 29-30; Tabingo, above, at para 139.
ANALYSIS
[29]
At
the judicial review hearing before me the Applicant conceded that Justice
Rennie has already assessed most of the issues raised in this case in Tabingo,
above. Justice Rennie certified several questions in Tabingo, so those
issues will be determined by the Federal Court of Appeal.
[30]
The
only issue before me is a factual one. The Applicant says that, in his case, a
positive selection decision was made by a qualified officer before 29 March
2012. The evidentiary basis offered for this assertion is the affidavit of Mr.
Daniel Vaughan submitted by the Respondent in the present application. Mr.
Vaughan is the Operations Manager in the Immigration Section in Beijing.
[31]
Paragraphs
3 to 5 of Mr. Vaughan’s affidavit read as follows:
3. I reviewed the CAIPS
notes pertaining to the Applicant’s terminated FSW application. There is an
October 20 2010 entry in the CAIPS made by “VCH”. The initials VCH refer to
Victoria Chua. Ms. Chua is locally engaged staff employed at the Canadian
Embassy in Beijing. Although I was not responsible for the assessment of
economic applications in October 2010, I understand that, at that time, Program
Assistants in Beijing would review FSW applications and enter points against
selection criteria in preparation for review by an officer. This was an
administrative task – taking information on file at face value and putting the
information against the assessment criteria. The file was then reviewed by an
officer for selection; only after an officer had reviewed the file would a
selection decision be entered, and next processing actions initiated. Program
Assistants do not have the delegated authority to make selection decisions.
4. Based on my knowledge
of the locally engaged staff, I can confirm that Victoria Chua was employed in
the Immigration Section as a Program Assistant in the Immigration Registry at
the time I arrived in Beijing. She joined the Economic Class Unit as a Program
Assistant in September, 2010. Although she was not under my supervision as a
member of the Economic Class Unit, I was aware of the work performed by Program
Assistants in that unit. Ms. Chua continued to work in the Economic Class Unit
until April, 2011. She worked in the Family Class Unit from April, 2011 to November,
2011 as a Program Assistant; since November, 2011 she has worked as a Program,
Assistant in the Medical Unit.
5. At no time has Ms Chua
worked as a Visa Officer or Designated Immigration Officer or possessed the
authority to render decisions on immigration applications.
[32]
I
cannot accept the Applicant’s interpretation of these paragraphs. I do not
think Mr. Vaughan is saying that a selection decision was made in this case.
The affidavit read as a whole makes it clear that he is referring to the
general process involved, and not the Applicant’s particular file. In my view,
the affidavit shows that no selection decision was made by a qualified officer.
[33]
There
is nothing else on the record before me that supports the proposition that a
selection decision was made in this case that would exempt the Applicant from
subsection 87.4(1) of the Act. That being the case, his application was
terminated and there is no basis for a grant of mandamus.
[34]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application is dismissed.
2.
There
is no question for certification.
"James
Russell"
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