Austria v. Canada (Citizenship and Immigration)

Austria v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court of Appeal Decisions
Date
2014-08-21
Neutral citation
2014 FCA 191
File numbers
A-180-13, A-181-13, A-183-13, A-185-13, A-186-13
Notes
Reported Decision
Decision Content
Date: 20140821
Dockets: A-180-13
A-181-13
A-183-13
A-185-13
A-186-13
Citation: 2014 FCA 191
CORAM:
SHARLOW J.A.
DAWSON J.A.
STRATAS J.A.
Docket: A-180-13
BETWEEN:
SUMERA SHAHID, FANG WEI, CHUANYUE IE, MAN YANG,
JING YANG, SIU LAI WOO, HONGBING BI, XIANG YANG LIN,
YING HUANG, XIANGNING DENG, SHANGSI LING,
CHENGXIANG LIU, FAN ZHANG, YINGHONG ZHANG, ZIJUN LIU, BAOQING ZHOU, ZHENDONG WANG, HUIQIANG PENG,
YANG TIAN, CHANGYING CHEN, XIAOMIN ZENG, FEI ZHU,
QIONG ZHANG, TINGTING ZHAO, YAN TU, JIAN HEI, YAN XU, FUCHUAN NI, XUEJUN WANG, YUN ZHOU, NING LI, XIN LI,
PING GUO, HAIJUN LU, TONG QI, SHUNHUA YE, HONGQI LIN, KAMFAI NG, LIANG CHEN, BO LIU, ZHENGHUI XU, SONG LIN, XUANJIN ZHU, ZHIQIANG GUO, PEIFENG HAO, YING BAI,
SHUXUN CHEN, YUN LI, LING XIAO, LI AN, ZHU CHAI,
YING ZHANG, SHAOPING CAO, GUIMEI JING, LIN ZHANG,
WEI CHEN, PAN QIN, LINGJING WENREN, YIDAN LU, GUI MA, XIAOXIAO LIU, YU SHEN, WEIJUAN WU, MING YU WU,
WENJUN XUE, BING ZHANG, KUN ZHU, CHUXIAO LI, XINYAN JIA, JUAN LUO, CHUAN HUO, MINGMING LUI, TIAN FU, HUIXIAN LONG, XIAOJIAN YAN, HONG WEI YANG, YU HE, GEQI WENG, ERLI SUN, QIZHI FENG, SHAOCHI WANG, JIANZHONG TAN, CHUN CHU,
LI LIANG, JIANCUN HUANG, XIAOYU LIU, DEJIAN LI,
XUELIAN BIAN, RUOCHUN LI, RUI HANG, YANLING LIU,
AIPING ZHANG, FEI WANG, WEN LU, LIPING QIU, JIANG LUO,
YILI WANG, JIONG ZHANG, SHI SUN, JIONG WANG, XILEI SONG, MIN QIAN, JIANGPING LU, JIONG GU, GUO YIN WANG,
LIJING XIAN, YUAN XU, YINZI GUAN, JIN LIU, LEI WU,
ZHAOHUI SUN, XIAODONG HUANG, PING YU, YANGCHUN YANG, HUIMING HU, JIEMIN XIA, YAPING WANG, QUTING ZHANG, JIAWEI WANG, XIN LIU, JIE AN, PENG XU, MENG LUO,
SHUNHONG YAN, CAIHUA YU, WUSAN DA, QIFENG HOU,
DA YU LIU, HONGWEN TIAN, JIAJIA CHEN, CHENGGANG HUANG, YURONG BIAN, CHUNYANG HUA, CHAO LI, JIE YI TIAN,
YONG QIANG WU, SHAO RU HE, MING MING YANG, SHUN PING LI, YAN JIANG, PEIDE FU, YI HAI ZHONG, XINGFEN FANG, JIAN ZHOU, ZIEN LI, WEI NIU, YUTAO HE, RAN ZHOU, WEI FENG,
YING WU ZHANG, XIAOLEI CHEN, XIAO LONG, RAN YONG,
LU ZUO, HAI TAO LAN, XIAOZHONG HE, BIN MA, GUIPING RAN, HUAN LIU, JIE CAO, GUANGYING XIAO, MING CHEN, LIXIA SHAO, YUCHUN YU, BO HUANG, HUI YING HUAN CHUN TING LI, XIANGXIAN LI, YAPING YANG, BING CHEN, FEI KONG, LI ZHANC, XIAO XIA LIU, PING DENG, JIAN XU, TING GAO, XIPING LUO, SONGMIN WANG, YIBO WANG, SHUMEI WANG, ZHI YI LI,
SHI MIN DAI, JING LI, CHENXI ZHAO, YANG LIU, MEI ZHANG,
MAN YI MICHELLE TANG, XUELIN ZHANG, YANLI WEI, JIN LIU, YUANYUAN DONG, ENNIAN JIN, ZHI LI
Appellants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: A-181-13
AND BETWEEN:
ALI RAZA JAFRI
Appellants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: A-183-13
AND BETWEEN:
MAE JOY TABINGO, ET AL
Appellants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: A-185-13
AND BETWEEN:
YANJUN YIN
Appellants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: A-186-13
AND BETWEEN:
MARIA SARI TERESA BORJA AUSTRIA
Appellants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, on June 23 and 24, 2014.
Judgment delivered at Ottawa, Ontario, on August 21, 2014.
REASONS FOR JUDGMENT BY:
SHARLOW J.A.
CONCURRED IN BY:
DAWSON J.A.
STRATAS J.A.
Date: 20140821
Dockets: A-180-13
A-181-13
A-183-13
A-185-13
A-186-13
Citation: 2014 FCA 191
CORAM:
SHARLOW J.A.
DAWSON J.A.
STRATAS J.A.
Docket:A-180-13
BETWEEN:
SUMERA SHAHID, FANG WEI, CHUANYUE XIE, MAN YANG,
JING YANG, SIU LAI WOO, HONGBING BI, XIANG YANG LIN,
YING HUANG, XIANGNING DENG, SHANGSI LING,
CHENGXIANG LIU, FAN ZHANG, YINGHONG ZHANG, ZIJUN LIU, BAOQING ZHOU, ZHENDONG WANG, HUIQIANG PENG,
YANG TIAN, CHANGYING CHEN, XIAOMIN ZENG, FEI ZHU,
QIONG ZHANG, TINGTING ZHAO, YAN TU, JIAN HEI, YAN XU, FUCHUAN NI, XUEJUN WANG, YUN ZHOU, NING LI, XIN LI,
PING GUO, HAIJUN LU, TONG QI, SHUNHUA YE, HONGQI LIN, KAMFAI NG, LIANG CHEN, BO LIU, ZHENGHUI XU, SONG LIN, XUANJIN ZHU, ZHIQIANG GUO, PEIFENG HAO, YING BAI,
SHUXUN CHEN, YUN LI, LING XIAO, LI AN, ZHU CHAI,
YING ZHANG, SHAOPING CAO, GUIMEI JING, LIN ZHANG,
WEI CHEN, PAN QIN, LINGJING WENREN, YIDAN LU, GUI MA, XIAOXIAO LIU, YU SHEN, WEIJUAN WU, MING YU WU,
WENJUN XUE, BING ZHANG, KUN ZHU, CHUXIAO LI, XINYAN JIA, JUAN LUO, CHUAN HUO, MINGMING LUI, TIAN FU, HUIXIAN LONG, XIAOJIAN YAN, HONG WEI YANG, YU HE, GEQI WENG, ERLI SUN, QIZHI FENG, SHAOCHI WANG, JIANZHONG TAN, CHUN CHU,
LI LIANG, JIANCUN HUANG, XIAOYU LIU, DEJIAN LI,
XUELIAN BIAN, RUOCHUN LI, RUI HANG, YANLING LIU,
AIPING ZHANG, FEI WANG, WEN LU, LIPING QIU, JIANG LUO,
YILI WANG, JIONG ZHANG, SHI SUN, JIONG WANG, XILEI SONG, MIN QIAN, JIANGPING LU, JIONG GU, GUO YIN WANG,
LIJING XIAN, YUAN XU, YINZI GUAN, JIN LIU, LEI WU,
ZHAOHUI SUN, XIAODONG HUANG, PING YU, YANGCHUN YANG, HUIMING HU, JIEMIN XIA, YAPING WANG, QUTING ZHANG, JIAWEI WANG, XIN LIU, JIE AN, PENG XU, MENG LUO,
SHUNHONG YAN, CAIHUA YU, WUSAN DA, QIFENG HOU,
DA YU LIU, HONGWEN TIAN, JIAJIA CHEN, CHENGGANG HUANG, YURONG BIAN, CHUNYANG HUA, CHAO LI, JIE YI TIAN,
YONG QIANG WU, SHAO RU HE, MING MING YANG, SHUN PING LI, YAN JIANG, PEIDE FU, YI HAI ZHONG, XINGFEN FANG, JIAN ZHOU, ZIEN LI, WEI NIU, YUTAO HE, RAN ZHOU, WEI FENG,
YING WU ZHANG, XIAOLEI CHEN, XIAO LONG, RAN YONG,
LU ZUO, HAI TAO LAN, XIAOZHONG HE, BIN MA, GUIPING RAN, HUAN LIU, JIE CAO, GUANGYING XIAO, MING CHEN, LIXIA SHAO, YUCHUN YU, BO HUANG, HUI YING HUAN CHUN TING LI, XIANGXIAN LI, YAPING YANG, BING CHEN, FEI KONG, LI ZHANC, XIAO XIA LIU, PING DENG, JIAN XU, TING GAO, XIPING LUO, SONGMIN WANG, YIBO WANG, SHUMEI WANG, ZHI YI LI,
SHI MIN DAI, JING LI, CHENXI ZHAO, YANG LIU, MEI ZHANG,
MAN YI MICHELLE TANG, XUELIN ZHANG, YANLI WEI, JIN LIU, YUANYUAN DONG, ENNIAN JIN, ZHI LI
Appellants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket:A-181-13
AND BETWEEN:
ALI RAZA JAFRI
Appellants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket:A-183-13
AND BETWEEN:
MAE JOY TABINGO, ET AL
Appellants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket:A-185-13
AND BETWEEN:
YANJUN YIN
Appellants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket:A-186-13
AND BETWEEN:
MARIA SARI TERESA BORJA AUSTRIA
Appellants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1] The Minister of Citizenship and Immigration has refused to process the applications of approximately 1,400 foreign nationals who applied before February 27, 2008 for permanent resident visas as members of the federal skilled worker class. They each applied to the Federal Court for judicial review of the Minister’s refusal. They sought a number of remedies, including an order of mandamus requiring the Minister to process their permanent resident visa applications. The applications for judicial review were heard together based on eight cases that were agreed to be representative of all of the others. Justice Rennie dismissed the applications for judicial review for reasons reported as Tabingo v. Canada (Minister of Citizenship and Immigration), 2013 FC 377.
[2] The Minister’s refusal to process the appellants’ permanent resident visa applications was based on subsection 87.4(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”). Section 87.4 was added to the IRPA by section 707 of the Jobs, Growth and Long-term Prosperity Act, S.C. 2012, c. 19. It was proclaimed in force June 29, 2012. Subsection 87.4(1) reads as follows:
87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.
87.4 (1) Il est mis fin à toute demande de visa de résident permanent faite avant le 27 février 2008 au titre de la catégorie réglementaire des travailleurs qualifiés (fédéral) si, au 29 mars 2012, un agent n’a pas statué, conformément aux règlements, quant à la conformité de la demande aux critères de sélection et autres exigences applicables à cette catégorie.
[3] I summarize as follows the principal conclusions reached by Justice Rennie in dismissing the appellants’ applications for judicial review:
(a) Subsection 87.4(1) of the IRPA terminates an application for a permanent resident visa as a member of the federal skilled worker class on June 29, 2012 if the application was made before February 27, 2008, and it was not determined before March 29, 2012 whether the applicant met the selection criteria and other requirements applicable to the federal skilled worker class.
(b) After June 29, 2012, the Minister had no legal obligation to consider an application described in subsection 87.4(1).
(c) The language of subsection 87.4(1) is sufficiently clear to rebut the presumption against the retrospective application of a statute.
(d) The statutory conditions stated in subsection 87.4(1) are objective facts. The process of identifying which applications are within the scope of subsection 87.4(1) is an administrative review involving no discretion or adjudication.
(e) The termination of an application by subsection 87.4(1) does not contravene section 1(a) or 2(e) of the Canadian Bill of Rights, S.C. 1960, c. 44, or the rule of law.
(f) Section 7 of the Canadian Charter of Rights and Freedoms is not engaged by the termination of an application pursuant to subsection 87.4(1).
(g) The appellants have not established that the implementation of subsection 87.4(1) discriminates against them on any of the grounds referred to in subsection 15(1) of the Charter or an analogous ground.
[4] To permit an appeal to this Court, Justice Rennie certified the following questions pursuant to paragraph 74(d) of the IRPA:
(a) Does subsection 87.4(1) of the IRPA terminate by operation of law the applications described in that subsection upon its coming into force, and if not, are the applicants entitled to mandamus?
(b) Does the Canadian Bill of Rights mandate notice and an opportunity to make submissions prior to termination of an application under subsection 87.4(1) of the IRPA?
(c) Is section 87.4 of the IRPA unconstitutional, being contrary to the rule of law or sections 7 and 15 the Charter?
[5] The appellants in these five appeals represent all of the original applicants who appealed.
[6] These reasons are organized into four parts. Part I summarizes the relevant facts relating to each appellant. Part II describes the statutory scheme, which consists of certain provisions of the IRPA (including section 87.4) and the Immigration and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”). Part III discusses the grounds of appeal. Part IV summarizes my conclusions.
I. Facts [7] Each of the appellants applied before February 27, 2008 for a permanent resident visa as a member of the federal skilled worker class. Some of the applications were submitted in 2005, others in 2007. None of the applications were processed to completion. Most of the appellants made frequent enquiries about the progress of the applications, and received assurances that the applications would be processed eventually. In each case, all processing stopped after June 29, 2012 because of the enactment of section 87.4 of the IRPA.
[8] The appellants incurred expenses for representation costs, application fees, and the cost of obtaining and submitting the extensive documentation required in support of their applications. They also suffered significant stress while waiting years for their applications to be processed. Although they are entitled to a return of the fees they have paid under the IRPA, they were hoping to be given the chance to establish themselves in Canada and they consider the loss of that opportunity to be substantial. Understandably, they consider it unfair that their applications have been terminated without regard to their merits.
[9] The specific facts for each appellant are as follows:
(a) Ms. Fang Wei (A-180-13) applied in 2007 to the visa post in Hong Kong. She had been married in China on May 1, 2006. Her husband subsequently became a permanent resident and a citizen of Canada. For technical reasons that are not relevant to her appeal, her husband has been unable to sponsor her.
(b) Ms. Sumera Shadid (A-180-13) applied in 2007 to the visa post in Islamabad. Her application was transferred to the London visa post on December 29, 2010.
(c) Mr. Ali Raza Jafri (A-181-13) is a citizen of Pakistan. He applied in 2007 to the visa post in Islamabad.
(d) Ms. Mae Joy Tabingo (A-183-13) applied in 2005 to the visa post in Manila for herself, her husband and their children.
(e) Mr. Yanjun Yin (A-185-13) is a citizen of China. He applied in 2007 for himself and his wife.
(f) Ms. Maria Sari Teresa Borja Austria (A-186-13) applied in 2005 to the Manila visa post.
[10] It is not possible to determine with certainty whether the appellants would have been granted permanent resident visas if subsection 87.4(1) of the IRPA had not been enacted. However, the Minister has referred to nothing in the record that raises any doubt as to the eligibility of the appellants to be selected as members of the federal skilled worker class.
II. The statutory scheme [11] By virtue of subsection 6(1) of the Charter, and historically at common law, every Canadian citizen has the unconditional right to enter and remain in Canada. The right of anyone else to enter and remain in Canada is governed by the IRPA and its predecessor statute, the Immigration Act, R.S.C. 1985, c. I-2 (see Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711).
[12] A “permanent resident” as defined in the IRPA has the qualified right to enter and remain in Canada pursuant to subsection 27(1) of the IRPA. “Permanent resident” is defined in subsection 2(1) of the IRPA as a person who has acquired permanent resident status under the IRPA and has not subsequently lost that status under section 46 of the IRPA. Subsection 11(1) of the IRPA provides that a foreign national who wishes to become a permanent resident must apply for the appropriate visa from outside Canada (subject to exceptions that do not apply to the appellants).
[13] Pursuant to subsection 21(1) of the IRPA, a foreign national becomes a permanent resident if an immigration officer is satisfied that the foreign national has applied for that status, holds the visa required to establish his or her entitlement to that status, and is not inadmissible. Pursuant to sections 34 to 41 of the IRPA, a person may be inadmissible on numerous grounds including, for example, grounds relating to security, criminality, health, financial circumstances, misrepresentation, failure to comply with a condition imposed under the Regulations or a Ministerial instruction relating to economic immigration, and failure to comply with the residence requirements for permanent residents.
[14] Pursuant to sections 25 and 25.1 of the IRPA, the Minister has the discretion to grant relief on humanitarian and compassionate grounds from any statutory requirement for permanent resident status, except to a person who is inadmissible under section 34 (security), section 35 (violation of human or international rights) or section 37 (organized criminality). The relief may be granted either on the application of the person affected (subject to the payment of a fee unless the fee is waived), or on the Minister’s own initiative. No submissions were made in these appeals as to whether the appellants are entitled to seek this relief. Section 25.2 of the IRPA permits the Minister to grant similar discretionary relief on public policy grounds.
[15] There is a dispute in these appeals as to the correct interpretation of section 87.4 of the IRPA. The resolution of that dispute is informed by subsection 3(1) of the IRPA, which states the objectives of the IRPA with respect to immigration, and subsection 3(3) which states the principles to be applied in construing and applying the IRPA. Those provisions read in relevant part as follows:
3. (1) The objectives of this Act with respect to immigration are
3. (1) En matière d’immigration, la présente loi a pour objet :
(a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration;
a) de permettre au Canada de retirer de l’immigration le maximum d’avantages sociaux, culturels et économiques;
…
[…]
(c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada;
c) de favoriser le développement économique et la prospérité du Canada et de faire en sorte que toutes les régions puissent bénéficier des avantages économiques découlant de l’immigration;
…
[…]
(e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society;
e) de promouvoir l’intégration des résidents permanents au Canada, compte tenu du fait que cette intégration suppose des obligations pour les nouveaux arrivants et pour la société canadienne;
(f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces; ...
f) d’atteindre, par la prise de normes uniformes et l’application d’un traitement efficace, les objectifs fixés pour l’immigration par le gouvernement fédéral après consultation des provinces; [...].
(3) This Act is to be construed and applied in a manner that
(3) L’interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet :
…
[…]
(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada; ...
d) d’assurer que les décisions prises en vertu de la présente loi sont conformes à la Charte canadienne des droits et libertés, notamment en ce qui touche les principes, d’une part, d’égalité et de protection contre la discrimination et, d’autre part, d’égalité du français et de l’anglais à titre de langues officielles du Canada; […].
[16] Paragraph 3(3)(d) of the IRPA is a statement of the principle that a discretionary administrative decision must be consistent with the Charter values underlying the grant of discretion. Authority for that principle is found in a line of cases, the most recent of which is Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 (at paragraph 24).
[17] The IRPA is framework legislation. It states basic principles and policies, leaving secondary policies, implementation, and operational matters to be dealt with in Regulations. This is explained by Justice Evans, writing for the Court in de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 at paragraph 23:
[The IRPA] contains the core principles and policies of the statutory scheme and, in view of the complexity and breadth of the subject-matter, is relatively concise. The creation of secondary policies and principles, the implementation of core policy and principles, including exemptions, and the elaboration of crucial operational detail, are left to regulations, which can be amended comparatively quickly in response to new problems and other developments.
[18] Section 5 of the IRPA grants the Governor in Council the authority to make regulations. It reads as follows:
5. (1) Except as otherwise provided, the Governor in Council may make any regulation that is referred to in this Act or that prescribes any matter whose prescription is referred to in this Act.
5. (1) Le gouverneur en conseil peut, sous réserve des autres dispositions de la présente loi, prendre les règlements d’application de la présente loi et toute autre mesure d’ordre réglementaire qu’elle prévoit.
[19] Most of the conditions for immigration to Canada are set out in Regulations enacted pursuant to subsection 14(1) of the IRPA, which reads in relevant part as follows:
14. (1) The regulations may provide for any matter relating to the application of this Division, and may define, for the purposes of this Act, the terms used in this Division.
14. (1) Les règlements régissent l’application de la présente section et définissent, pour l’application de la présente loi, les termes qui y sont employés.
(2) The regulations may prescribe, and govern any matter relating to, classes of permanent residents or foreign nationals, including the classes referred to in section 12, and may include provisions respecting
(2) Ils établissent et régissent les catégories de résidents permanents ou d’étrangers, dont celles visées à l’article 12, et portent notamment sur :
(a) selection criteria, the weight, if any, to be given to all or some of those criteria, the procedures to be followed in evaluating all or some of those criteria and the circumstances in which an officer may substitute for those criteria their evaluation of the likelihood of a foreign national’s ability to become economically established in Canada;
a) les critères applicables aux diverses catégories, et les méthodes ou, le cas échéant, les grilles d’appréciation et de pondération de tout ou partie de ces critères, ainsi que les cas où l’agent peut substituer aux critères son appréciation de la capacité de l’étranger à réussir son établissement économique au Canada;
(b) applications for visas and other documents and their issuance or refusal, with respect to foreign nationals and their family members;
b) la demande, la délivrance et le refus de délivrance de visas et autres documents pour les étrangers et les membres de leur famille;
(c) the number of applications that may be processed or approved in a year, the number of visas and other documents that may be issued in a year, and the measures to be taken when that number is exceeded;
c) le nombre de demandes à traiter et dont il peut être disposé et celui de visas ou autres documents à accorder par an, ainsi que les mesures à prendre en cas de dépassement;
(d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals; ....
d) les conditions qui peuvent ou doivent être, quant aux résidents permanents et aux étrangers, imposées, modifiées ou levées, individuellement ou par catégorie; […].
A. The federal skilled worker class [20] Section 12 of the IRPA specifies two classes of permanent resident, apart from refugees and persons in similar circumstances. A member of the “family class” is selected on the basis of a specified family relationship with a Canadian citizen or permanent resident (subsection 12(1) of the IRPA). A member of the “economic class” is selected on the basis of the ability to become economically established in Canada (subsection 12(2) of the IRPA). The appellants were all seeking to be selected as members of the economic class.
[21] It is the position of the Minister that the creation of the economic class is intended to further the objectives stated in paragraphs 3(a), (c), (e) and (f) of the IRPA, quoted above. That suggests that the interpretation and application of the provisions of the IRPA relating to the federal skilled worker class is informed by Parliament’s stated intention to permit Canada to pursue the maximum social, cultural and economic benefits of immigration, to support the development of a strong and prosperous Canadian economy, to promote the successful integration of permanent residents into Canada, and to support the attainment of immigration goals established by the federal government.
B. Regulations – federal skilled worker class [22] The Governor in Council has exercised the authority under section 14 of the IRPA to enact detailed regulations relating to immigration applications, including the applications in issue in these appeals. Although the Regulations are amended frequently and some amendments were made after the appellants’ visa applications were made, it has not been suggested that any of those amendments have a bearing on any of the issues in this appeal. For that reason, the following summary of the relevant Regulations is based on the Regulations as they now read.
[23] According to subsection 11(1) of the Regulations, an application for a permanent resident visa (except an application by a refugee or a person in similar circumstances) must be made to a particular visa office (sometimes called a “visa post”). Subsection 11(1) reads as follows:
11. (1) An application for a permanent resident visa — other than an application for a permanent resident visa made under Part 8 — must be made to the immigration office that serves
11. (1) L’étranger fait sa demande de visa de résident permanent — autre que celle faite au titre de la partie 8 — au bureau d’immigration qui dessert :
(a) the country where the applicant is residing, if the applicant has been lawfully admitted to that country for a period of at least one year; or
a) soit le pays dans lequel il réside, s’il y a été légalement admis pour une période d’au moins un an;
(b) the applicant's country of nationality or, if the applicant is stateless, their country of habitual residence other than a country in which they are residing without having been lawfully admitted.
b) soit le pays dont il a la nationalité ou, s’il est apatride, le pays dans lequel il a sa résidence habituelle — autre que celui où il n’a pas été légalement admis.
[24] Part 6 of the Regulations (sections 73 to 115) states the selection criteria for members of the economic class. It divides the members of the economic class into three categories: skilled workers (Division 1 of Part 6), business immigrants (Division 2 of Part 6), and live-in caregivers (Division 3 of Part 6).
[25] The skilled worker class is further divided into six subcategories: the federal skilled worker class, the transitional federal skilled worker class, the Quebec skilled worker class, the provincial nominee class, the Canadian experience class, and the federal skilled trades class. All of the appellants are seeking to be selected in the first subcategory, the federal skilled worker class. The selection criteria for immigration applicants of that class are set out in sections 75 to 85 of the Regulations.
[26] An applicant may be selected as a member of the federal skilled worker class if: (a) the applicant is determined pursuant to section 75 of the Regulations to be a skilled worker, (b) the applicant is determined pursuant to section 76 of the Regulations to have the ability to become economically established in Canada, and (c) the applicant intends to reside in a province other than Quebec. The applicant must meet these conditions on the date on which the application is made and on the date on which the visa is issued (section 77 of the Regulations).
(1) Skilled Worker – section 75 [27] Subsection 75(2) of the Regulations sets out detailed requirements for the assessment of the occupational skills of an applicant. If those requirements are met, the applicant is a “skilled worker” as defined in subsection 75(2).
[28] Pursuant to subsection 75(2) of the Regulations, the applicant’s primary occupation must fall into a prescribed category in the National Occupational Classification matrix published by Human Resources and Skills Development Canada, and the applicant’s work experience must meet prescribed conditions. If the primary occupation does not qualify, or if the work experience conditions are not met, the application is refused pursuant to subsection 75(3) of the Regulations and is given no further consideration. Otherwise, the applicant qualifies as a skilled worker and is assessed for the ability to become economically established in Canada.
(2) Ability to become economically established in Canada – section 76 [29] A skilled worker cannot be selected as a member of the federal skilled worker class unless it is determined pursuant to section 76 of the Regulations that he or she will be able to become economically established in Canada. Section 76 states two sets of requirements for that assessment. One set of requirements is intended to assess the applicant’s personal characteristics (paragraph 76(1)(a) of the Regulations). The other set of requirements is intended to assess the applicant’s financial resources and employment prospects in Canada (paragraphs 76(1)(b) of the Regulations).
(a) Personal characteristics – Regulations, paragraph 76(1)(a) [30] To assess a skilled worker’s personal characteristics, an immigration officer assigns points to six factors pursuant to paragraph 76(1)(a) of the Regulations. The skilled worker must obtain a specified minimum number of points to be accepted as a person who will be able to become economically established in Canada.
[31] The required minimum number of points is fixed by the Minister pursuant to subsection 76(2) of the Regulations based on the number of federal skilled worker class applications currently being processed, the number of skilled workers projected to become permanent residents according to a report to Parliament under section 94 of the IRPA and the potential, taking into account economic and other relevant factors, for the establishment of skilled workers in Canada.
[32] The six factors specified in paragraph 76(1)(a) of the Regulations for the assessment of the applicant’s personal characteristics are:
(a) education (section 78 of the Regulations – from 5 points for a secondary school credential to 25 points for a university level credential at the doctoral level),
(b) proficiency in an official language of Canada (section 79 of the Regulations – a maximum of 24 points for proficiency in English or French and a maximum of 4 additional points for proficiency in the other official language),
(c) work experience (section 80 of the Regulations – a maximum of 15 points for six or more years of work experience within the last 10 years),
(d) age (section 81 of the Regulations – a maximum of 12 points for an applicant between 18 and 35 years of age, with one less point for each additional year over 35),
(e) arranged employment in a specified occupation or skill for full-time work in Canada that is non-seasonal and indeterminate (section 82 of the Regulations – a maximum of 10 points if the applicant holds a work permit that meets the conditions in paragraph 82(2)(a), (b) or (d) of the Regulations, or if the applicant has a job offer from a Canadian employer that meets the conditions in paragraph 82(2)(c) of the Regulations), and
(f) adaptability (section 83 of the Regulations – a maximum of 10 points for certain Canadian work or study experience of the applicant or the applicant’s accompanying spouse or common law partner).
[33] If the immigration officer conducting the assessment concludes that the criteria in paragraph 76(1)(a) of the Regulations are not a sufficient indicator of the applicant’s ability to become economically established in Canada, the officer may substitute a different evaluation if a second officer concurs (subsections 76(3) and (4) of the Regulations).
(b) Financial resources and employment prospects – paragraph 76(1)(b) [34] Paragraph 76(1)(b) of the Regulations provides that the skilled worker must have transferable and available funds in a specified amount, or must be awarded points under paragraph 76(1)(a) of the Regulations for arranged employment that meets the conditions in paragraphs 82(2)(a), (b) or (d) of the Regulations.
C. The normal processing of a permanent resident visa application [35] When an application for a permanent resident visa is received at the appropriate visa post with the required fee, an acknowledgement letter is sent to the applicant. The first examination of the application may not occur for years, so that much of the information becomes out of date before the application is considered. When the examination of an application is commenced after a long delay, the applicant generally is requested to submit updated information. The request for updated information is assumed by applicants to mean that the processing of their application is almost complete. However, it is not uncommon for the next step to take several months.
[36] Once an officer determines from the documentation whether the applicant meets the requirements for selection as a member of the federal skilled worker class, a selection decision is made. Normally, that decision is documented by the notation “SELDEC” in the applicant’s file on the Computer Assisted Immigration Processing System (“CAIPS”) or the notation “Eligibility – Passed” or “Eligibility – Failed” in the Global Case Management System (“GCMS”). There may be other notes in the CAIPS or GCMS that document the determination before any SELDEC, Eligibility – Passed or Eligibility – Failed notation is made.
[37] The next stage requires a review of documents relating to admissibility, such as medical and police documentation. If that review has a positive outcome, the applicant is requested to pay the required fee and submit a passport. It normally takes two to three months for the passport to be returned to the applicant with the permanent resident visa affixed.
[38] At any time during the processing, a question may arise as to whether the applicant is eligible for selection as a member of the federal skilled worker class or is inadmissible. In that event, the applicant is sent a letter (referred to as a fairness letter) disclosing the new issue and requiring a response within a specified time. There is no statutory time limit for determining the new issue.
D. Section 87.4 of the IRPA [39] Section 87.4 came into force on June 29, 2012. It reads in full as follows:
87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.
87.4 (1) Il est mis fin à toute demande de visa de résident permanent faite avant le 27 février 2008 au titre de la catégorie réglementaire des travailleurs qualifiés (fédéral) si, au 29 mars 2012, un agent n’a pas statué, conformément aux règlements, quant à la conformité de la demande aux critères de sélection et autres exigences applicables à cette catégorie.
(2) Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012.
(2) Le paragraphe (1) ne s’applique pas aux demandes à l’égard desquelles une cour supérieure a rendu une décision finale, sauf dans les cas où celle-ci a été rendue le 29 mars 2012 ou après cette date.
(3) The fact that an application is terminated under subsection (1) does not constitute a decision not to issue a permanent resident visa.
(3) Le fait qu’il a été mis fin à une demande de visa de résident permanent en application du paragraphe (1) ne constitue pas un refus de délivrer le visa
(4) Any fees paid to the Minister in respect of the application referred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without interest, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund.
(4) Les frais versés au ministre à l’égard de la demande visée au paragraphe (1), notamment pour l’acquisition du statut de résident permanent, sont remboursés, sans intérêts, à la personne qui les a acquittés; ils peuvent être payés sur le Trésor.
(5) No person has a right of recourse or indemnity against Her Majesty in connection with an application that is terminated under subsection (1).
(5) Nul n’a de recours contre sa Majesté ni droit à une indemnité de sa part relativement à une demande à laquelle il est mis fin en vertu du paragraphe (1).
[40] The Minister takes the position that on June 29, 2012, subsection 87.4(1) terminated the permanent resident visa applications in issue in this appeal because on that date the applications met the conditions stated in that provision. No steps were taken by the Minister after that date to complete the processing of the applications.
[41] According to evidence presented for the Minister, the enactment of subsection 87.4(1) was intended to deal with an unacceptable backlog of applications for permanent resident visas for the federal skilled worker class.
[42] Between 2002 and 2012, the Minister received and processed applications for permanent resident visas from over 2.4 million persons seeking to be selected as members of the economic class. That included more than one million applications from persons seeking to be selected as members of the federal skilled worker class.
[43] During those years hundreds of thousands of federal skilled worker applications were processed in the New Delhi, Islamabad, Manila, Hong Kong and Beijing visa posts. Thousands more applications from nationals of India, Pakistan, the Philippines and China were processed at visa posts in Buffalo, London, Paris, Sydney and Singapore. Despite the number of completed federal skilled worker applications, a significant backlog developed because the number of applications far exceeded the number of federal skilled worker applicants that could be accepted under the government’s annual immigration plans.
[44] The Minister considered the existence of a large backlog to be a significant detriment to the immigration program for federal skilled workers. It reduced the program’s flexibility and the government’s ability to respond to changing labour market conditions affecting the prospects of new immigrants to find work and become economically established in Canada. It also reduced public confidence in the effectiveness of the immigration system.
[45] Over the years, attempts were made to reduce the backlog by increasing the number of applications processed each year. However, those attempts could not succeed in the face of the limited number of planned annual admissions to Canada, even when they were at historically high levels.
[46] In February of 2008, the IRPA was amended to authorize the Minister to make binding instructions reducing or suspending the intake of new applications. However, that step alone was insufficient to remove the backlog. It was projected that the backlog would subsist for some years, and that applicants would suffer wait times of seven to eight years. At the same time, there was evidence of declining income and higher levels of unemployment among new immigrants. The government considered that situation to be unacceptable as a matter of policy.
[47] Section 87.4 was enacted in order to eliminate the backlog in a single step, enabling the government to focus on newer permanent resident visa applications from persons with pre-arranged employment. After its introduction, efforts were made to “mine” the backlog for potentially successful federal skilled worker applications, and many successful applications resulted from that effort. However, not all meritorious applications were or could have been identified. The applications in issue in this case might have succeeded if they had not been terminated by subsection 87.4(1).
[48] The appellants have suggested that the backlog might have been exacerbated by subsection 11(1) of the Regulations (enacted in 2002) that stipulated which visa post an applicant was required to use. Prior to that change, an appl