Jia v. Canada (Citizenship and Immigration)

Jia v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2014-06-23
Neutral citation
2014 FC 596
File numbers
IMM-2621-13
Notes
Reported Decision
Decision Content
Date: 20140623
Docket: IMM-2621-13
Citation: 2014 FC 596
Ottawa, Ontario, June 23, 2014
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
BAOXIAN JIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Jia is from China and wants to immigrate to Canada. In December of 2009, he made an application to the Canadian visa post in Hong Kong, seeking admission to Canada as a member of the investor class, a class of economic immigrants provided for in section 90 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations]. His application has not been processed due to the large number of similar applications from other would-be investor class immigrants and also, possibly, as a result of certain changes to the way in which Citizenship and Immigration Canada [CIC] processed applications under the federal immigrant investor program [IIP]. These changes resulted in applications like that of Mr. Jia being slowed down in the processing queue because the respondent, the Minister of Citizenship and Immigration [the Minister or the respondent], adopted amended processing criteria, which provided for the concurrent processing of older applications – like Mr. Jia’s – at the same time as newer applications filed under amended and more demanding criteria.
[2] Mr. Jia argues that if the Minister had not changed the processing priorities or had not set the quota for applications at artificially low levels, his application would have been granted by now and he would have been landed as a member of the investor class. He therefore commenced this Application for Judicial Review, seeking an order in the nature of mandamus to direct the respondent to process his IIP application.
[3] Mr. Jia’s visa application, and those of thousands of others who have applied under the IIP, were just abolished by the newly enacted section 87.5 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act or IRPA], which came into force late last week, and which operates to terminate all visa applications by foreign nationals under the investor or entrepreneur classes that had not met certain requirements as of February 11, 2014.
[4] In this Application for Leave and Judicial Review, Mr. Jia originally sought an order in the nature of mandamus, requiring the Minister to process his application under the IIP within the following twelve months. He maintains his request for mandamus, but now, in light of section 87.5 of the IRPA, seeks a mandamus order to require the Minister to process his visa application irrespective of the enactment of that section.
[5] At the time Mr. Jia was granted leave to commence this Application for Judicial Review, there were 94 other virtually identical Applications filed by Mr. Leahy on behalf of other similarly-situated applicants who had made applications under the IIP. In their Applications for Leave and Judicial Review to this Court, these 94 other applicants also sought orders in the nature of mandamus to compel the processing of their visa applications. By the Order dated March 7, 2014, my colleague, Justice Mactavish, granted leave in all 95 Applications and consolidated them for hearing with Mr. Jia’s Application. A list of the other 94 files which were so consolidated, and to which these Reasons apply, is attached as Appendix “A” to these Reasons.
[6] The vast majority of the 95 applicants in these files, like Mr. Jia, made their IIP applications to the visa post in Hong Kong. They made these applications on various dates between August 27, 2008 and June 28, 2010, and their applications have not been processed for the same reasons as in Mr. Jia’s case.
[7] In addition to the Hong Kong applicants, the consolidated Applications also include seven Applications made by individuals whose IIP applications were sent from Damascus to the Ankara visa post for processing, a single application made at the visa post in New Delhi, another made in Pretoria, South Africa and a final application from Islamabad that was sent to the visa post in London, U.K. for processing. These applications were made over the period from October 29, 2007 to June 27, 2010 and have likewise not been finally ruled upon.
[8] In addition to these 95 files, the Court now has pending before it over a thousand other Applications for Leave and Judicial Review filed by Mr. Leahy on behalf of other IIP applicants in which they also seek orders in the nature of mandamus to require the Minister to process their visa applications in spite of the section 87.5 of the IRPA. By Order of Justice Mactavish dated April 30, 2014, these Reasons apply mutatis mutandis (that is, with the necessary modifications) to each of these additional Applications.
[9] During pre-hearing procedures, the parties agreed that these 95 consolidated files would be determined based on the evidence filed in five lead files, one from each of the implicated visa posts, as there is no meaningful difference between the files from each post. The lead files agreed to are:
Jia v Canada (Minister of Citizenship and Immigration), IMM-2621-13 for Hong Kong; Bansal v Canada (Minister of Citizenship and Immigration), IMM-2503-13 for New Delhi; Gholampour v Canada (Minister of Citizenship and Immigration), IMM-2508-13 for London; Nasseri Karimi Vand v Canada (Minister of Citizenship and Immigration), IMM-2510-13 for Ankara; and Stopforth v Canada (Minister of Citizenship and Immigration), IMM-3892-13 for Pretoria.
[10] After all the evidence was filed and only two weeks before the scheduled hearing date, the applicants served a Notice of Constitutional Question, in which they gave notice that they intended to argue that the Minister’s alleged delay in processing their applications violated their rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter] (or other more broadly cast claims to equality) and that the alleged “disproportionate favouring of Quebec applications” violated what the applicants term “the federalism principle”.
[11] Although the respondent objected to the late service of the Notice, it made relatively detailed representations on the constitutional issues in both its Further Memorandum of Argument and during oral submissions. I have decided that it is appropriate to rule on the constitutional issues, despite the late-service of the Notice, to bring closure to these matters. Thus, the issues that require determination are as follows:
Should an order in the nature of mandamus be granted in any of the files; Have the applicants’ Charter rights been breached; Has the respondent otherwise breached the Constitution in its handling of these applications; and Should any question be certified under section 74 of the IRPA to provide for the possibility of appeal to the Court of Appeal in these files?
[12] For the reasons set out below, I have determined that the applicants are not entitled to an order in the nature of mandamus as they have not established that the Minister has breached any duty owed to them because there has not been an unreasonable delay in processing their applications in the circumstances. Moreover, even if this were not so, it nonetheless would be inappropriate to grant them the remedy they seek because it would be inequitable to do so. Nor has the respondent breached any legitimate expectations the applicants might have had regarding how or when their visa applications would be processed. Thus, the applicants are not entitled to relief in the nature of mandamus.
[13] I have also concluded that, even if the applicants possess rights under the Charter (which they may well not), no rights under either sections 7 or 15 of the Charter have been violated by the respondent in these matters. I have further determined that the amorphous claims advanced as part of the alleged requirements of federalism or as part of the rule of law are without merit. I have thus concluded that these applications will be dismissed.
[14] Finally, in light of the high degree of agreement between the parties on the issue of certification, and the fact that comparable questions to those suggested by the parties have recently been certified by two of my colleagues in very similar matters, I have decided it appropriate to certify two questions under section 74 of the IRPA.
[15] Prior to analysing these issues, it is necessary to review the factual background to these applications and to also review the legislation that applies to them, as it is different from that which was in place when the key authorities relied on by the applicants were decided.
I. Background [16] The evidence before me reveals that the federal investor program has been in existence for several years. At the point at which each of the applicants in the 95 consolidated files applied under the IIP, an individual needed to have business experience, a net worth of $800,000.00 and the capacity to invest $400,000.00 in order to qualify as an investor. For those who applied under the IIP prior to December 1, 2010 (as all these applicants did), if and when their applications were accepted, there was a requirement to extend a five-year $400,000.00, interest-free loan to the Government of Canada, which would then distribute funds to participating provinces and territories to fund economic development and growth. None of the applicants was called upon to put forward funds as an investor because none of their files had been progressed to the point where investment was required.
[17] The evidence also indicates that each year, under the authority delegated to him under the IRPA, the Minister set a quota or target for the number of IIP immigrants that Canada would accept. This quota was established on a world-wide basis, and the total number so set was then allocated among various visa posts based on factors such as the number of pending applications at the post.
[18] In 2006, the global target for the IIP was set at 1015 investors. From 2007 to 2010, the target ranged between 2,000 and 3,015, and in 2011 and 2012 the world-wide target was set at 1,500 investors. The evidence further demonstrates that for 2006 to 2012 (with the exception of 2007), the respondent met or exceeded its global target and processed the projected number (or more) of IIP applications.
[19] Immigrants under the IIP were accepted for settlement outside of Quebec. A separate program – regulating a separate class of immigrants – applies to investors who wish to settle in Quebec, the Quebec Investor Program [QIP] (see Regulation Respecting the Selection of Foreign Nationals, CQLR c I-0.2, r 4, in contrast to sections 102-04, 107-09 of the Regulations). Separate targets are set by the province of Quebec (in consultation with federal representatives) for the QIP, which, generally speaking, appear to have been higher than 23% of the IIP targets (or the rough percentage of the Canadian population that resides in Quebec).
[20] The investor program became exceedingly popular, and by 2010 (if not earlier) thousands of applications were received under the IIP, creating large backlogs of unprocessed applications at many visa posts. As a result, over the years from 2008 to date, a number of legislative amendments were made and a number of administrative measures taken with a view to reducing and eliminating the backlog.
II. Relevant legislation [21] Dealing first with the pertinent legislation, copies of all relevant provisions are annexed in full in Appendix “B” to these Reasons. Thus, I review below only the most salient provisions.
[22] The first of them is section 3 of the IRPA, which sets out the objectives of the Act. At all times material to these Applications, these included permitting “Canada to pursue the maximum social, cultural and economic benefits of immigration” (paragraph 3(1)(a)); enriching and strengthening “the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada” (paragraph 3(1)(b)); supporting “the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada” (paragraph 3(1)(c)); and supporting “by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces” (paragraph 3(1)(f)).
[23] Subsection 11(1) of the IRPA, which has been unchanged since the date these 95 applicants applied under the IIP, provides the statutory authority for the issuance of visas. It provides that a foreign national must, before entering Canada, “apply to an officer for a visa or for any other document required by the regulations”. The subsection then goes on to state that a visa may be issued if a visa officer is satisfied that the applicant is not inadmissible and meets the requirements of the Act.
[24] Section 12 of the IRPA, which has likewise been unchanged since the date these 95 applicants applied under the IIP, provides for classes of immigrants who may be selected as permanent residents, establishing the family, economic and refugee classes. With respect to the economic class (of which the investor class is a sub-class), subsection 12(2) of the IRPA states that “a foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada”.
[25] Subsection 94(2) of the IRPA, provides the Minister the authority – and responsibility – to report the number of foreign nationals who became permanent residents in the preceding year, and the number projected to become permanent residents in the following year.
[26] On June 18, 2008, Parliament enacted the Budget Implementation Act, 2008, SC 2008, c 28 [the BIA], which added section 87.3 to the IRPA. The then-new section 87.3, which applied to numerous types of visa applications including applications for the various economic classes, provided in part as follows:
Attainment of immigration goals
(2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada.
Instructions
(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.
Compliance with instructions
(4) Officers and persons authorized to exercise the powers of the Minister under section 25 shall comply with any instructions before processing an application or request or when processing one. If an application or request is not processed, it may be retained, returned or otherwise disposed of in accordance with the instructions of the Minister.
[…]
Clarification
(7) Nothing in this section in any way limits the power of the Minister to otherwise determine the most efficient manner in which to administer this Act.
Atteinte des objectifs d’immigration
(2) Le traitement des demandes se fait de la manière qui, selon le ministre, est la plus susceptible d’aider l’atteinte des objectifs fixés pour l’immigration par le gouvernement fédéral.
Instructions
(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
Respect des instructions
(4) L’agent — ou la personne habilitée à exercer les pouvoirs du ministre prévus à l’article 25 — est tenu de se conformer aux instructions avant et pendant le traitement de la demande; s’il ne procède pas au traitement de la demande, il peut, conformément aux instructions du ministre, la retenir, la retourner ou en disposer.
[…]
Précision
(7) Le présent article n’a pas pour effet de porter atteinte au pouvoir du ministre de déterminer de toute autre façon la manière la plus efficace d’assurer l’application de la loi.
[27] Importantly, section 120 of the BIA stated:
Application
120. Section 87.3 of the Immigration and Refugee Protection Act applies only to applications and requests made on or after February 27, 2008.
Demandes
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.
[28] Thus, prior to being further amended in the manner detailed below, section 87.3 of the IRPA did not apply to visa applications filed prior to February 27, 2008.
[29] On June 29, 2012, the Jobs, Growth and Long-term Prosperity Act, SC 2012, c 19 was granted royal assent. This omnibus bill amended section 87.3 of the IRPA to specifically provide the Minister authority to give Ministerial Instructions with respect to the processing of applications by “establishing conditions, by category or otherwise, that must be met before or during the processing of an application or request” (paragraph 87.3(3)(a.1)) and providing that a Ministerial Instruction may, “if it so provides, apply in respect of pending applications or requests that are made before the day on which the instruction takes effect” (subsection 87.3(3.1)). These provisions came into force upon royal assent, that is, on June 29, 2012. Thus, unlike the first iteration of section 87.3 in force prior to June 29, 2012, the amended section 87.3 specifically foresaw that Ministerial Instructions could apply retrospectively to pending applications.
[30] In addition, this legislation added subsection 3.2 to section 87.3 of the IRPA. Subsection 3.2 provides that Instructions given under paragraph 87.3(3)(c) “may provide that the number of applications or requests, by category or otherwise, to be processed in any year may be set at zero”. Finally, section 709 of the Jobs, Growth and Long-term Prosperity Act repealed section 120 of the BIA, removing any doubt as to the potential for Ministerial Instructions to apply to visa applications that were filed prior to February 27, 2008.
[31] Section 87.3 has been modified a few more times by subsequent budget legislation, but those changes were minor and are not material to this case. As section 87.3 of the IRPA is critical to these Applications, it is reproduced, in full. As currently constituted, it provides:
Application
87.3 (1) This section applies to applications for visas or other documents made under subsections 11(1) and (1.01), other than those made by persons referred to in subsection 99(2), to sponsorship applications made under subsection 13(1), to applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by foreign nationals in Canada, to applications for work or study permits and to requests under subsection 25(1) made by foreign nationals outside Canada.
Attainment of immigration goals
(2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada.
Instructions
(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;
(a.1) establishing conditions, by category or otherwise, that must be met before or during the processing of an application or request;
(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.
Application
(3.1) An instruction may, if it so provides, apply in respect of pending applications or requests that are made before the day on which the instruction takes effect.
Clarification
(3.2) For greater certainty, an instruction given under paragraph (3)(c) may provide that the number of applications
or requests, by category or otherwise, to be processed in any year be set at zero.
Compliance with instructions
(4) Officers and persons authorized to exercise the powers of the Minister under section 25 shall comply with any instructions before processing an application or request or when processing one. If an application or request is not processed, it may be retained, returned or otherwise disposed of in accordance with the instructions of the Minister.
Clarification
(5) The fact that an application or request is retained, returned or otherwise disposed of does not constitute a decision not to issue the visa or other document, or grant the status or exemption, in relation to which the application or request is made.
Publication
(6) Instructions shall be published in the Canada Gazette.
Clarification
(7) Nothing in this section in any way limits the power of the Minister to otherwise determine the most efficient manner in which to administer this Act.
Application
87.3 (1) Le présent article s’applique aux demandes de visa et autres documents visées aux paragraphes 11(1) et (1.01) — sauf à celle faite par la personne visée au paragraphe 99(2) —, aux demandes de parrainage faites au titre du paragraphe 13(1), aux demandes de statut de résident permanent visées au paragraphe 21(1) ou de résident temporaire visées au paragraphe 22(1) faites par un étranger se trouvant au Canada, aux demandes de permis de travail ou d’études ainsi qu’aux demandes prévues au paragraphe 25(1) faites par un étranger se trouvant hors du Canada.
Atteinte des objectifs d’immigration
(2) Le traitement des demandes se fait de la manière qui, selon le ministre, est la plus susceptible d’aider l’atteinte des objectifs fixés pour l’immigration par le gouvernement fédéral.
Instructions
(3) Pour l’application du paragraphe (2), le ministre peut donner des instructions sur le traitement des demandes, notamment des instructions :
a) prévoyant les groupes de demandes à l’égard desquels s’appliquent les instructions;
a.1) prévoyant des conditions, notamment par groupe, à remplir en vue du traitement des demandes ou lors de celui-ci;
b) prévoyant l’ordre de traitement des demandes, notamment par groupe;
c) précisant le nombre de demandes à traiter par an, notamment par groupe;
d) régissant la disposition des demandes dont celles faites de nouveau.
Application
(3.1) Les instructions peuvent, lorsqu’elles le prévoient, s’appliquer à l’égard des demandes pendantes faites avant la date où elles prennent effet.
Précision
(3.2) Il est entendu que les instructions données en vertu de l’alinéa (3)c) peuvent préciser que le nombre de demandes à traiter par an, notamment par groupe, est de zéro.
Respect des instructions
(4) L’agent — ou la personne habilitée à exercer les pouvoirs du ministre prévus à l’article 25 — est tenu de se conformer aux instructions avant et pendant le traitement de la demande; s’il ne procède pas au traitement de la demande, il peut, conformément aux instructions du ministre, la retenir, la retourner ou en disposer.
Précision
(5) Le fait de retenir ou de retourner une demande ou d’en disposer ne constitue pas un refus de délivrer les visa ou autres documents, d’octroyer le statut ou de lever tout ou partie des critères et obligations applicables.
Publication
(6) Les instructions sont publiées dans la Gazette du Canada.
Précision
(7) Le présent article n’a pas pour effet de porter atteinte au pouvoir du ministre de déterminer de toute autre façon la manière la plus efficace d’assurer l’application de la loi.
III. Relevant Regulations and Ministerial Instructions [32] As noted, prior to December 1, 2010, section 88(1) of the Regulations required investor class applicants to demonstrate business experience, possess a net worth of $800,000.00 and provide a five-year interest-free loan to the government in the amount of $400,000.00. Effective December 1, 2010, the net worth requirement was increased to $1.6 million and the interest-free loan to $800,000.00. The increased monetary requirements set out in subsection 88(1) of the Regulations applied only to IIP applications filed on or after December 1, 2010 and thus do not impact any of the applicants in these Applications, who all made their IIP applications prior to that date.
[33] The Ministerial Instructions issued under section 87.3 of the IRPA, however, did apply to the applicants’ visa applications. The first [MI1], in force from November 29, 2008 to June 25, 2010, pertained largely to federal skilled worker applications. With respect to investor class applications, MI1 merely provided that they would be “placed into processing according to existing priorities”.
[34] MI1 was replaced with a second Ministerial Instruction [MI2] on June 26, 2010. It provided for an administrative pause in the intake of new IIP applications, extending until the coming into force of the regulatory amendments to the definition of “Investor” and “Investment”, which were promulgated on December 1, 2010. MI2 also foresaw that once the administrative pause was lifted, IIP applications filed under the “old” and “new” regulatory requirements would be processed concurrently. MI2 provides in this regard that “federal Immigrant Investor applications received on or after the coming into force of the proposed regulatory amendments […] shall, as a category, be processed concurrently with those federal applications received prior to the administrative pause in a ratio consistent with operational requirements”.
[35] The next Ministerial Instruction, in force as of July 1, 2011, set a cap of 700 new federal immigrant investor applications that would be processed each year. For purposes of calculating the cap, this Instruction provided that the “year” ran from July 1 to June 30.
[36] The next relevant Ministerial Instruction, which the respondent has termed MI3 in its materials, came into force as of July 1, 2012 and established a second administrative pause on the acceptance of IIP applications, providing that none would be accepted on or subsequent to July 1, 2012. This pause has not been lifted, and, indeed, was confirmed in the subsequent Ministerial Instructions, issued in January 2013, which provide that the pause on acceptance of new IIP applications remains in force “until further notice”.
[37] The impact of these various Instructions is as follows.
[38] First, no new investor class applications have been accepted as of July 2012. This fact did not impact the applicants in these matters as the administrative pause merely forestalled new would-be immigrants from making applications under the IIP as of July 2012.
[39] Second, from December 2010 forward, applications filed prior to that date were processed concurrently with new applications filed between December 2010 and July 2012 under the enhanced regulatory criteria. This change in processing priorities impacted the applicants as the respondent ceased its former “first-in, first-out” processing of IIP applications in favour of concurrent processing of “old” applications (like the applicants’) and “new” applications filed between December 2010 and July 2012.
IV. Operational Instructions and Bulletins [40] CIC has issued various Operational Instructions or Bulletins over the years, providing further guidance as to the manner in which investor class applications are to be processed. It is common ground between the parties that these Operational Instructions and Bulletins are available on-line and are frequently consulted by applicants, immigration consultants and lawyers.
[41] The first relevant Operational Instruction, dated June 8, 2006, was drafted before the large influx of IIP applications. It introduced the Simplified Application Process for IIP applications and provided as follows regarding the processing of such applications:
The Processing Stage: Visa offices must put into place bring forward systems so as to identify needed Federal Economic cases 4-6 months before the visa office will assess the case. At that time, the applicant is to be sent a standard request for all supporting documentation, that is, a list similar to that sent with the Simplified Application Acknowledge of Receipt, plus, if necessary, an updated IMM8 and any needed schedules. The applicant should be provided with 4 months to submit the supporting documentation, and the file marked to be brought forward in 4-5 months. Because visa offices will therefore be able to manage the volume of incoming “completed” applications, it is reasonable for applicants to expect assessment to begin immediately. It is expected that visa offices will normally approve (pending any needed verifications), refuse, or convoke to interview within several weeks of the end of the 4-month document request period and/or of receiving the supporting documentation. If the office finds it is unable to do so, they should reduce the volume of cases being asked to provide supporting documents, until the correct flow is established.
[42] On December 2, 2010, another Operational Bulletin was issued, Operational Bulletin 252. After detailing the requirement to process IIP applications filed prior to December 2010 concurrently with those filed after that date, this Bulletin stated that:
As a general rule, visa offices should process applications under the federal IIP in a 2:1 case processing ratio of old inventory applications to new applications received on or after December 1, 2010. The concurrent case processing ratio of 2:1 is provided as a guideline only; this ratio may change over time in accordance with operational requirements and may not apply equally to all visa offices depending on the volume of investor class applications processed by a given visa office.
[43] Finally, in February 2014, CIC issued Operational Bulletin 566, which indicated that processing of IIP applications “should proceed according to routine office procedures” until section 87.5 of the IRPA comes into force.
V. Facts pertaining to each of the five lead files A. Hong Kong [44] Turning, now, to the facts pertaining to each of the five lead cases, as noted, Mr. Jia filed his application in December 2009 at the Hong Kong visa post. His application, like that of all the other 94 applicants in these matters, was made on a summary basis and did not require provision of detailed information. (Applications filed after December 2010 required much more information.)
[45] Following receipt of his application, CIC sent Mr. Jia an acknowledgment of receipt letter and placed his application into the queue for processing. The standard form letter stated that the Hong Kong visa post was “…currently processing applications received 18-24 months ago; however circumstances may change. Please consult the website of Citizenship and Immigration Canada (CIC) for up-to-date information on processing times at our office”. The letter then gave the URL for the page on CIC’s website where updated processing times were available.
[46] CIC periodically updated these times on its website, showing increasingly longer average processing times for IIP applications in Hong Kong. More specifically, a 37-month wait was posted as the processing time in October 2010. By April of 2012, this had lengthened to 44 months and by October of that year to 47 months. In 2013, the processing time for IIP applications in Hong Kong increased to 51 months in April and then to 56 months in October. By March 2014, the processing time for IIP applications posted for Hong Kong stood at 57 months. These processing times are summarised in the table below:
Hong Kong visa post
Date
Processing time (months)
October 22, 2010
37
April 23, 2012
44
October 24, 2012
47
April 24, 2013
51
October 30, 2013
56
March 10, 2014
57
[47] With the exception of 2007, the Hong Kong visa post met or exceeded its quota of IIP applications that it was targeted to process each year. Increasing wait times were thus generated by the proportion by which the volume of applications exceeded the quota or target allocated to the office. The inventory of unprocessed IIP applications in Hong Kong stood as follows from 2006 to 2013:
Hong Kong visa post
Year
Inventory
2006
1,645
2007
2,181
2008
2,368
2009
8,322
2010
15,875
2011
17,283
2012
16,340
2013
15,388
[48] As of June 2013, there were 5500 cases ahead of Mr. Jia’s in the queue for processing at the Hong Kong visa post. Thousands of cases were still ahead of his file in the processing queue on the date section 87.5 of the IRPA came into force.
[49] Counsel for Mr. Jia argues that if the Minister had done two things differently, Mr. Jia’s IIP application would have been processed by now. More specifically, he alleges that if the Minister had not instituted concurrent processing for the “old” and “new” IIP applications, or if the Minister had set a higher quota, proportionally equivalent to that set under the QIP, Mr. Jia would now be in Canada. By proportionally equivalent, he means if the Minister had set quotas for the IIP based on QIP quotas, increased by the proportion by which the population of Canada, outside Quebec, exceeds the population of Quebec. In other words, the applicant argues that he (and the other applicants) should have had their IIP applications processed on a “first-in, first-out” basis and that the number of IIP applications Canada accepted each year should have been substantially increased.
[50] I am far from convinced that counsel for the applicants has demonstrated that if either or both of these two things had occurred, Mr. Jia’s application (or the applications of any of the other applicants) would have been processed by now. Be that as it may, I am prepared to accept that counsel’s re-working of the IIP and QIP numbers does make such a demonstration for purposes of disposing of these applications, as I prefer to dispose of them on a principled as opposed to an evidentiary basis.
B. New Delhi [51] The facts in the other four lead cases are not materially different from those in Mr. Jia’s case. Mr. Bansal made his application to the Canadian High Commission in New Delhi, India in November 2008. The standard form acknowledgement of receipt letter he was sent stated as follows:
You will hear from us regarding the results of the evaluation of your application in twelve months. Please do not contact us before twelve months have passed since you received this letter. Due to the high volume of inquiries received in this office, we will not be able to respond to inquiries sent within twelve months.
[52] The Computer Assisted Immigration Processing System (or CAIPS) notes, which have been filed as part of the Certified Tribunal Record in these matters, indicate that Mr. Bansal or his son followed up on the application with the High Commission in New Delhi and were directed to CIC’s website for updated processing times. Those times, like the ones posted for Hong Kong, were substantial and increased over time. More specifically, the website provided the following estimates for the average processing time for IIP applications in New Delhi:
New Delhi visa post
Date
Processing time (months)
October 22, 2010
28
April 27, 2011
34
October 27, 2011
38
April 23, 2012
40
October 24, 2012
47
April 24, 2013
49
October 30, 2013
55
March 10, 2014
60
[53] The queue of IIP applications in New Delhi was shorter than that in Hong Kong. The following numbers of applications were in queue at the end of each of the years between 2006 and 2013:
New Dehli visa post
Year
Inventory
2006
11
2007
32
2008
369
2009
877
2010
1,065
2011
1,016
2012
949
2013
845
[54] Mr. Bansal’s application moved up in the queue, and in mid-2013 he was asked to provide additional documentation in support of his application. The First Secretary of Immigration at the Canadian High Commission in New Delhi deposed in her affidavit, sworn on May 30, 2013, that she anticipated that a final decision in Mr. Bansal’s application might be made sometime in mid-2014. No such decision had yet been made as of the date these applications were argued.
C. London [55] At the time of his application, Mr. Gholampour resided in Pakistan. His IIP application was sent to the Canadian High Commission office in London, U.K. in early 2010 for processing. The standard form acknowledgment of receipt letter for London stated as follows:
At the present time our estimated processing period is 12 - 18 months. Please note this is based on our current inventory of applications and processing times may vary as a result of changes to the inventory.
[56] As with the other visa posts, London posted its average anticipated wait times for processing of visa applications on CIC’s website. They were as follows for IIP applications:
London visa post
Date
Processing time (months)
October 22, 2010
25
April 27, 2011
26
October 27, 2011
32
April 23, 2012
46
October 24, 2012
55
April 24, 2013
55
October 30, 2013
57
March 10, 2014
65
[57] Here, as well, the queue was shorter than in Hong Kong. At the end of each year from 2006 to 2013, the following numbers of IIP applications were waiting to be processed in London (or Islamabad):
London and Islamabad visa posts
Year
Inventory (London)
Inventory (Islamabad)
2006
137
99
2007
293
121
2008
555
211
2009
735
250
2010
972
224
2011
1,082
12
2012
939
9
2013
779
10
[58] CIC processed the following number of “old” and “new” applications from Islamabad in London between 2010 to 2013:
Islamabad cases finalized in London
Year
Total cases
(“old” and “new” combined)
2010
N/A
2011
5
2012
29
2013
64
[59] It appears that, when all years are viewed together, CIC exceeded its target for both Islamabad and for London over the period from 2006 to 2012, but in a few years fell slightly below target in the numbers of applications it processed.
[60] CIC has requested that Mr. Gholampour furnish additional documents to support his application, but as of the date of hearing, no decision had yet been made in respect of it. The First Secretary, Immigration Section, at the Canadian High Commission in London deposed in her affidavit, sworn June 7, 2013, that it would take at least 18 months from that date to finalize Mr. Gholampour’s case.
D. Ankara [61] Mr. Nasseri Karimi Vand made his application to the Canadian Embassy in Ankara, Turkey in October 2007. He did not receive a letter setting out an estimated processing time but, rather, merely a form acknowledging receipt of his application. However, as in other cases, estimated processing times for IIP applications were available on CIC’s website. It provided as follows with respect to estimated average processing times for IIP applications considered at the Ankara visa post:
Ankara visa post
Date
Processing time (months)
October 22, 2010
34
April 27, 2011
33
October 27, 2011
32
April 23, 2012
33
October 24, 2012
54
April 24, 2013
63
October 30, 2013
74
March 10, 2014
78
[62] With the exception of 2009, CIC me