Docket: IMM-2965-13
Citation: 2015 FC 1010
Toronto, Ontario,
August 26, 2015
PRESENT: The
Honourable Mr. Justice Diner
BETWEEN:
DARSHAN SINGH DHALIWAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT
AND REASONS
I.
Overview
[1]
On June 19, 2014, the Immigration and Refugee
Protection Act (SC 2001, c 27) [the Act, IRPA] was amended to terminate all visa applications by foreign nationals
under the investor or entrepreneur classes which had not met certain
requirements by February 11, 2014.
[2]
In this
judicial review, Mr. Dhaliwal is the Representative Applicant for a number of individuals
affected by the legislative amendment and seeks to have the provision declared
unconstitutional for offending the rule of law and violating section 7 of the Canadian
Charter of Rights and Freedoms [Charter]. Furthermore, he seeks
an order of mandamus to compel the Minister of Citizenship and
Immigration Canada [Minister] to process his application for permanent
residence.
[3]
The issues
raised in the matter are the same as those in a companion case before me, Singh
v Minister of Citizenship and Immigration (IMM-3716-13). By agreement of
the parties, the matters were argued together given the similarities in the
legal issues to be decided by the Court.
[4]
For the
reasons below, I would dismiss the judicial review.
II.
Facts
[5]
On May 21, 2010, the Applicant, a citizen of
India, filed an application for permanent residence under the Federal Investor Class.
He received a letter from the Canadian High Commission in New Delhi a few days
later, acknowledging its receipt and advising him that he would be informed of the
status of his application in twenty months (Applicant’s Record [AR], p. 16).
[6]
However, a little less than 3 years later, the
Applicant’s file was still yet to be processed. Consequently, on April 22, 2013,
the Applicant filed the underlying application for judicial review seeking an order
of mandamus to process his permanent residence application. Before the
judicial review was heard on its merits, on June 19, 2014, section 303 of the Economic
Action Plan 2014 Act, No 1 (SC 2014, c 20) amended the Act to include section
87.5:
87.5 (1) An application by a foreign
national for a permanent resident visa as a member of the prescribed class of
investors or of entrepreneurs is terminated if, before February 11, 2014, 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 the class in question.
(2) Subsection (1) does not apply to
(a) an application in respect of which a
superior court has made a final determination unless the determination is made
on or after February 11, 2014; or
(b) an application made by an investor or
entrepreneur who is selected as such by a province whose government has entered
into an agreement referred to in subsection 9(1).
(3) The fact that an application is
terminated under subsection (1) does not constitute a decision not to issue a
permanent resident 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.
(5) If an application for a permanent
resident visa as a member of the prescribed class of investors is terminated
under subsection (1), an amount equal to the investment made by the applicant
in respect of their application must be returned, without interest, to the
applicant. The amount may be paid out of the Consolidated Revenue Fund.
(6) If the provincial allocation of an
investment made in respect of an application for a permanent resident visa as a
member of the prescribed class of investors that is terminated under subsection
(1) has been transferred to an approved fund, as defined in subsection 88(1) of
the Immigration and Refugee Protection Regulations, the province whose
government controls the approved fund must return an amount equal to that
provincial allocation to the Minister without delay. The return of the amount
extinguishes the debt obligation in respect of that provincial allocation.
(7) No right of recourse or indemnity lies
against Her Majesty in right of Canada in connection with an application that
is terminated under subsection (1), including in respect of any contract or
other arrangement relating to any aspect of the application.
[7]
Pursuant to section 87.5(1), the Applicant’s
permanent residence application was terminated by operation of law.
[8]
Before diving into the substantive analysis of
this case, it should be noted that recently, the Federal Court of Appeal [FCA] decisively
ruled on a matter involving a similar set of applicants. Jia v Canada
(Citizenship and Immigration), 2015 FCA 146 [Jia] and its trial
decision, Jia v Canada (Citizenship and Immigration), 2014 FC 596 [Jia
FC], was, like this matter, brought to the Federal Courts by way of a mandamus
application. Also similar to this case were the underlying circumstances,
including the type of permanent residence applications at issue (business category),
place of filing (visa offices in Asia), projections of processing times, and
allegations of unconstitutionality by the applicants. Those applicants were
unsuccessful at both levels of the Federal Courts.
[9]
I now turn back to the analysis of this case,
and will return to a discussion of Jia at the end of my decision.
III.
Submissions
[10]
Since the Applicant’s Investor Class application
has already been terminated pursuant to section 87.5 of the Act, it is apparent
that the remedy he is seeking, an order of mandamus directing the Minister
to process his application, hinges on the constitutionality of this provision.
[11]
The Applicant argues that section 87.5 is
unconstitutional in two respects: (i) the provision offends the constitutional
principle of the rule of law, and (ii) the provision violates the Applicant’s
rights under section 7 of the Charter.
[12]
The Respondent argues that as a foreign national
residing outside of Canada, the Applicant lacks standing to bring Charter
or constitutional claims. In any event, there is no breach of section 7, because
the Applicant’s life, liberty or security of the person were not engaged nor
did the constraints imposed on the Investor Class permanent residence
applications violate the principles of fundamental justice. As the Supreme
Court of Canada held in British Columbia v Imperial Tobacco Canada Ltd,
2005 SCC 49 at paras 69-72 [Imperial Tobacco], retrospective statutes do
not violate the rule of law, and there is no vested right to an application of
the law as it stood prior to its retrospective amendment.
IV.
Analysis
A.
Preliminary Matters
[13]
Procedurally, the Respondent argues that the
Applicant’s arguments regarding the constitutionality of section 87.5 are
improperly before the Court and should not be entertained because they were
raised for the first time in the Applicant’s Further Memorandum of Fact and
Law. As noted by the Federal Court of Appeal in Erasmo v Canada (Attorney
General), 2015 FCA 129 at para 33, the general rule is that, absent cases
of urgency, constitutional questions cannot be raised for the first time in the
reviewing court if the administrative decision maker under review had the power
and the practical capability to decide them.
[14]
In this case, the contested provision come into
effect after the application for judicial review for delay in processing had
already been filed. Thus, the judicial review before me is the first practical
opportunity for the Applicant to assert these arguments. For the Applicant to
have to circle back and seek leave of the Minister’s decision to terminate the
Investor Class application, based on the same facts as the judicial review
currently before this Court, would be to waste scarce judicial resources. As
stressed by Justice Karakatsanis in Hryniak v Mauldin, 2014 SCC 7 at
para 25 in a decision regarding the shift in culture required to facilitate
Ontario’s summary judgement rules, “[p]rompt judicial
resolution of legal disputes allows individuals to get on with their lives”
(see also Jia FC at para 11). I also see little prejudice to the
Respondent in this case, given the opportunity to address the Applicant’s
constitutional arguments through written submissions in the Further Memorandum
of Fact and Law and at the hearing.
B.
Rule of Law and Constitutionality of Section
87.5
[15]
The rule of law is a fundamental constitutional
principle which provides, at the very least, that (i) the law is supreme over
officials of the government as well as private individuals, (ii) requires the
creation and maintenance of an actual order of positive laws which preserves
and embodies the more general principle of normative order and (iii) the
actions of state officials be legally founded (Re Manitoba Language Rights,
[1985] 1 S.C.R. 721 at paras 59-61; Imperial Tobacco at para 59).
[16]
The Applicant relies on R v Ferguson,
2008 SCC 6 at para 68, wherein the Chief Justice of the Supreme Court of Canada
made it clear that for laws to conform to the principle of the rule of law, they
must be accessible, intelligible, clear and predictable:
[68] The principles of constitutionalism and
the rule of law lie at the root of democratic governance: Reference re
Secession of Quebec, [1998] 2 S.C.R. 217. It is fundamental to the rule of law
that “the law must be accessible and so far as possible intelligible, clear and
predictable”:
[17]
At its core, the Applicant’s argument is this: the
Minister owed a duty to the Applicant to process his application upon its
submission, and section 87.5 is unconstitutional because it retrospectively
eliminated this duty, violating the virtue of predictability the rule of law
must encompass.
[18]
The law, however, must be capable of adapting to
changing circumstances. The ability of Parliament to craft solutions to
shifting social, financial or political problems implicates another
constitutional principle which is that the rule of law must be balanced against
parliamentary sovereignty (Babcock v Canada (Attorney General), 2002 SCC
57 at para 55 [Babcock]). Parliament is provided the freedom, subject to
constitutional constraints, to legislate as it sees fit (Babcock at para
57). Indeed, no Parliament, through ordinary legislation, may prohibit future
iterations from modifying a law (Quebec (Attorney General) v Canada
(Attorney General), 2015 SCC 14 at paras 25, 44).
[19]
Justice Major in Imperial Tobacco
addressed the constitutionality of retrospective statutes, stating that aside
from the criminal context, “there is no requirement of
legislative prospectivity embodied in the rule of law or in any provision of
our Constitution” (at para 69) and went on to acknowledge the
frustration that certain individuals may feel when retrospective statutes upset
preconceived expectations:
[71] The absence of a general
requirement of legislative prospectivity exists despite the fact that
retrospective and retroactive legislation can overturn settled expectations and
is sometimes perceived as unjust: see E. Edinger, “Retrospectivity in Law”
(1995), 29 U.B.C. L. Rev. 5, at p. 13. Those who perceive it as such can
perhaps take comfort in the rules of statutory interpretation that require the
legislature to indicate clearly any desired retroactive or retrospective
effects. Such rules ensure that the legislature has turned its mind to such
effects and “determined that the benefits of retroactivity [or retrospectivity]
outweigh the potential for disruption or unfairness”: Landgraf v. USI Film
Products, 511 U.S. 244 (1994), at p. 268.
[20]
In short, the unfortunate accompaniment of
disruption or unfairness when a retrospective law is passed does not render that
new law in violation of the rule of law.
[21]
The Applicant attempts to distinguish this
situation by arguing that in Imperial Tobacco, no prior duties had been supplanted
or nullified by the retrospective legislation at issue.
[22]
The hurdle the Applicant cannot overcome,
however, is that a higher Court ─ the FCA ─ has held on two
separate occasions within the past two years that the elimination of a duty to
process a visa application is constitutional in nearly identical circumstances.
[23]
In Austria v Canada (Citizenship and
Immigration), 2014 FCA 191 [Tabingo] the Federal Court of Appeal
heard the appeal of a judicial review decided by Justice Rennie (as he then
was) in Tabingo v Canada (Minister of Citizenship and Immigration), 2013
FC 377 [Tabingo FC]. The applicants in that case challenged a similar
provision, section 87.4(1) of the Act, which had terminated permanent resident
visa applications of foreign nationals who applied before February 27, 2008 as
members of the Federal Skilled Worker class. The FCA rejected the applicants’
argument that the provision was so arbitrary that it offended the rule of law,
finding that “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” (Tabingo at
para 74).
[24]
Second, the FCA came to a similar result in Jia,
not on constitutional grounds, but rather on the grounds that the requested mandamus
order to compel the processing of outstanding investor and entrepreneur
applications was rendered moot due to the enactment of section 87.5, the same
provision at issue in today’s request for a similar mandamus order.
[25]
Consequently, in light of the comments of the
Supreme Court of Canada in Imperial Tobacco and the Federal Court of
Appeal in Tabingo on retrospectivity, the Applicant’s arguments
regarding the legitimacy of the retrospective legislation at issue in this case
must also fail.
C.
Section 7 of the Charter
[26]
The Applicant’s second argument posits that section
87.5 is unconstitutional because it violates his rights under section 7 of the Charter.
For support, he cites Chaoulli v Quebec (Attorney General), 2005 SCC 35
at para 116 [Chaoulli], wherein Chief Justice McLachlin and Justice
Major found in concurring reasons that the psychological side effects of
waiting for critical health care may engage a section 7 protection for security
of the person. The Applicant argues that psychological damage can be wrought in
waiting for a visa application to be processed, only to see it ultimately
terminated without adjudication.
[27]
A similar argument was rejected in Tabingo.
The Federal Court of Appeal concluded that while profoundly disappointing, the
evidence in that case did not establish the high threshold of psychological
harm necessary to establish a deprivation of the right to security of the
person (Tabingo at para 99). Looking at the record before me in this
case, I would reach the same conclusion.
[28]
In this case, there is insufficient evidence
before me to indicate that the Applicants suffered physiological effects beyond
ordinary stress or anxiety due to the termination of their application (Chaoulli
at para 116). Even so, the reasons why section 7 would not be engaged were well
articulated by Justice Rennie in paragraph 99 of Tabingo FC:
[99] I accept that the applicants have
experienced stress and hardship; I also accept that the circumstances of some
of the applicants are compelling. However, immigration is not of such an
intimate, profound and fundamental nature as to be comparable with a woman’s
right of reproductive choice, or the freedom of parents to care for their
children. The ability to immigrate, particularly as a member of an economic
class, is not among the fundamental choices relating to personal autonomy which
would engage section 7. While it may have life-altering consequences, the
possibility of immigrating to Canada as a successful FSW applicant does not
engage life or liberty interests. (Aff’d by the FCA in Tabingo at para
96)
[29]
In Jia FC, Justice Gleason (as she then
was) adopted the section 7 analysis of Justice Rennie, and relied on many of
the same cases cited by him, in noting “the significant
jurisprudence” of the Federal Courts holds that foreign citizens outside
of Canada have no rights under the Charter in respect of activities that
occur outside of Canada (Jia FC at paras 108 and 114; see also for
instance Al Mansuri v Canada (Public Safety and Emergency Preparedness), 2007
FC 22; Amnesty International Canada v Canada (Chief of the Defence Staff), 2008
FC 336; Amnesty International Canada v Canada (Chief of the Defence Staff), [2009]
4 FCR 149; Arora v Canada (MCI), IMM-5901-99, Date: 2001-01-10).
[30]
While there is no binding jurisprudence from a
higher court on the constitutionality of section 87.5 (Jia at para 7),
many of the same arguments in this judicial review were addressed by Justice
Gleason in Jia FC. For instance, she concluded that the rule of law was
not blemished by the passage of the provision, though the argument in that case
was framed through the lens of section 15 of the Charter (Jia FC at
paras 128-130). Further, as Justice Gleason found for the same reasons that Justice
Rennie set out in Tabingo FC, section 7 was not engaged as a result of
the passage of section 87.5 (Jia FC at para 114). I agree with
and adopt the reasoning behind these conclusions on the rule of law and
constitutionality of section 87.5.
[31]
After the rulings of Justices Rennie and Gleason
in Tabingo FC and Jia FC, three other judges of this Court have
arrived at similar conclusions in related facts.
[32]
First, Justice Boswell declined to return a case
for redetermination, as the visa application would be terminated by section
87.5 in any event (Kozel v Canada (Citizenship and Immigration), 2015 FC
593 at para 21).
[33]
Second, in Sin v Canada, 2015 FC 276 at
para 4 [Sin], Justice O'Reilly struck a claim for damages for loss of
opportunities brought by an applicant who had a pending investor application
for failing to disclose a cause of action. While the applicant argued that
bilateral treaties protect the rights of investors, Justice O'Reilly concluded
that “provisions enacted by Parliament that terminate
investors’ permanent residence applications and limit the extent to which they
can seek compensation for the termination of their applications simply do not
conflict with those agreements”
(Sin at para 12).
[34]
Third, Justice
Mosley also declined to order mandamus for an Investor Class application
affected by section 87.5, substantially for the reasons Justice Gleason gave in
Jia FC (Hui v Canada (Minister of Citizenship and Immigration),
2014 FC 666 at para 5).
[35]
For all of the reasons above, I reject the
constitutional law arguments advanced by the Applicant in this judicial review.
[36]
Finally, before the rulings in this consistent
line of Federal Court jurisprudence, Justice Russell also arrived at the same
outcome in Shukla v Canada (Citizenship and Immigration), 2012 FC 1461. Shukla
was an early ruling on section 87 of the Act, where a Federal Skilled Worker
applicant, who had filed at the New Delhi Visa office, declined a refund of
fees from New Delhi when the law changed, and resubmitted his application with
new forms. Justice Russell dismissed the mandamus and the nunc pro
tunc request of the Applicant, stating:
In addition, the back-dating that the
Applicant requests would be an assumption of jurisdiction in a situation where
Parliament has made its intentions clear, so that the Court would be attempting
to thwart the clear and express intent of Parliament. I know of no principal or
authority that would allow me to do this and I think the law on point is clear.
[37]
Similarly,
when the FCA upheld Justice Gleason’s decision in Jia FC nearly three
years after Shukla, Justice Ryer conclusively ruled for the Court that
because section 87.5 terminated all investor applications, “the issue of whether the Minister could be
forced [via mandamus] to process these applications was no longer a live
controversy”
(Jia at para 6). That ruling binds me, and I therefore also reject the mandamus
component of the Applicant’s requested order.
V.
Certification
[38]
The Applicant proposed three questions for
certification:
i.
Does the court have the jurisdiction to grant a
Mandamus Order, even when the class of immigrant has been terminated, in cases
when the Mandamus Order was sought prior to the coming into force of the
legislation terminating the said class?
This question has
been answered conclusively in Jia and other cases.
ii.
If the Respondent acted in bad faith before the
coming into force of section 87.5 of IRPA and ignored its duty to process in
accordance with section 3(1)(f) of IRPA, can the court order that such files
which were submitted in accordance with section 11(1) of IRPA, and for which it
would have been reasonably expected that a decision should have been made, be
processed and decided in accordance with the law in existence prior to coming
into force of the said section?
I agree with the
Respondent that there was no evidence of bad faith in these matters (including
the unchallenged Respondent Affidavit of Larry Penn at para 6). There is no
evidence that files were not being processed according to the law, even if not
at the pace the Applicant would have liked, or one that provided a decision
before the new law came into effect.
iii.
In light of the bad faith in the implementation
of section 87.5 of the IRPA and willfully ignoring of the duty imposed on the
Respondent by Parliament, is the legislation ultra vires, as allowing
its operation under the present circumstances is a clear and fundamental breach
of the rule of law, and the core values expressed in the Constitution and
fundamental to our democracy?
Given that there
is no evidence of bad faith, and the Courts have rejected the notion that the
Respondent had a duty to process the applications prior to the entry into force
of section 87.5, this question also fails to meet the certification test. The
Court of Appeal, first in Tabingo and then in Jia, decided these
issues. While I note that Justice Ryer found no need to address constitutional
issues in Jia, due to the FCAs findings on the mandamus issue
(reviewed above), the FCA found the new legislative provisions to be
constitutional in Tabingo, as did my colleagues, Justices Rennie and
Gleason, in their comprehensive decisions in Tabingo FC and Jia FC, respectively.
[39]
I am satisfied that these questions have been
addressed by both levels of our Federal Courts, per the clear and consistent
line of jurisprudence reviewed above. Certification, accordingly, is not
warranted in this matter, per the criteria set out in Zhang v Canada
(Citizenship and Immigration), 2013 FCA 168 at para 9.
VI.
Conclusion
[40]
Having carefully reviewed the facts of this
case, I see no compelling reasons to deviate from the clear and consistent body
of jurisprudence. While I recognize it is a bitter pill to swallow for the
applicants who wanted to see their files processed through to conclusion, this
application for judicial review will accordingly be dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is that
1. This application for judicial review is dismissed.
2. There is no award as to costs.
3. No questions will be certified.
"Alan S. Diner"
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