IMM-3020-02
2003 FCT 211
Laurentiu Dragan (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Dragan v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Kelen J.--Toronto, February 4 and 5; Ottawa, February 21, 2003.
Citizenship and Immigration -- Status in Canada -- Permanent Residents -- Consolidated application for mandamus compelling Minister to assess applications for permanent residence either under former Immigration Act, Regulations or before March 31, 2003 -- Applicants divided into two categories: (1) those applying for permanent residence in Canada before January 1, 2002; (2) those applying after January 1, 2002 but before June 28, 2002 -- Immigration and Refugee Protection Act coming into force June 28, 2002 -- Immigration and Refugee Protection Regulations (IRPR), s. 361(3) directing applications made before January 1, 2003 be awarded units of assessment in accordance with 1978 Regulations until March 31, 2003 after which pending applications assessed in accordance with IRPR -- Applicants concerned they will lose important rights to Canadian visa if assessed under selection criteria in new Regulations -- S. 361 validly authorized retrospective legislation -- Should operate according to its terms -- Respondent neglecting implied duty to use reasonable best efforts to assess applications before March 31, 2003 -- Mandamus ordered with respect to first category of applicants.
Administrative Law -- Judicial Review -- Mandamus -- Applicants seeking writ of mandamus requiring respondent to assess applications for permanent residence in accordance with selection criteria in former Immigration Act, Regulations -- Criteria for mandamus met -- Case law on mandamus reviewed -- Applicants not responsible for delay -- Inquiry focussed on length of delay, nature of justifications -- Case law showing mandamus granted for assessment of visa applications where three to four-year delay, where excuse for delay workload faced by Immigration Department, where delay may result in substantive detriment to applicant -- Respondent not using reasonable best efforts to assess outstanding applications -- Mandamus granted with respect to applications made before January 1, 2002.
Construction of Statutes -- Retroactivity -- Applications for permanent residence filed under old legislative scheme not yet assessed -- Applicants arguing rights acquired under former Immigration Act survive by virtue of Interpretation Act, s. 43 despite repeal of former Immigration Act by Immigration and Refugee Protection Act, s. 274(a) -- Rebuttable presumption legislation not intended to retrospectively interfere with vested rights -- Statutory language conveying legislative intent to apply new Act retrospectively, to authorize regulations with retrospective effect -- Parliament expressly overriding presumption -- Immigration and Refugee Protection Regulations, s. 361 validly authorized retrospective legislation, should operate according to its terms.
This was a consolidated application for a writ of mandamus involving 124 individuals who applied for permanent residence in Canada under the recently repealed Immigration Act and the corresponding Immigration Regulations, 1978. The new Immigration and Refugee Protection Act (IRPA) came into force on June 28, 2002. The applicants could be divided into two categories based on their date of application. The first category consisted of 102 individuals who applied for permanent residence in Canada before January 1, 2002 with the expectation that they would be assessed according to the selection criteria contained in the 1978 Regulations. Subsection 361(3) of the Immigration and Refugee Protection Regulations (IRPR) directs that applications filed before January 1, 2002 be awarded units of assessment in accordance with the 1978 Regulations until March 31, 2003. After that date, any pending applications will be awarded units of assessment in accordance with the IRPR. To ease the transition process, subsection 361(5) of the IRPR provides that applicants in the federal skilled worker class are only required to meet a pass mark of 70 points, as opposed to the 75-point pass mark imposed upon new applicants. The applicants sought writs of mandamus compelling the Minister to either award them units of assessment under the former selection grid or assess their applications prior to March 31, 2003. The second category consisted of 22 individuals who applied for permanent residence after January 1, 2002 but before June 28, 2002. While these applicants also applied under the former Act, they have been treated differently than the first category of applicants as a result of the transitional provisions of the IRPR. As of June 28, 2002, all of these applicants were to be assessed under the selection criteria in the IRPR and those in the federal skilled worker class must meet a pass mark of 75 points. The applicants in this category sought writs of mandamus requiring the Minister to assess their applications in accordance with the selection criteria contained in the 1978 Regulations. Some of the applicants have been waiting over three years for an interview. The new legislation will adversely impact the likelihood of their receiving a Canadian immigrant visa. Two issues were raised: (1) whether the IRPR and the new Regulations retrospectively removed the applicants' vested rights to have their applications for permanent residence in Canada assessed under the former Act and 1978 Regulations; (2) whether the applicants were entitled to a writ of mandamus directing the respondent to assess and award units of assessment in accordance with the selection criteria in the former Act and the 1978 Regulations.
Held, the application should be allowed with respect to first category of applicants and dismissed with respect to the second category of applicants.
(1) The applicants argued that, despite the repeal of the former Immigration Act by paragraph 274(a) of the IRPA, the rights acquired under the former Act survive by virtue of section 43 of the Interpretation Act, which preserves in force the rights and duties accrued under repealed legislation. It is presumed that legislation is not intended to have a retrospective effect when the provision substantially affects the vested rights of a party. As this is only a presumption, it can be rebutted. The Court can examine the legislative history of a provision when interpreting its meaning. The statutory language of sections 190 and 201 of the IRPA conveys the legislative intent to apply the new Act retrospectively and to authorize regulations with retrospective effect. Parliament can expressly enact retroactive legislation, and this clear expression overrides the presumption against retroactivity or retrospectivity, identified in section 43 of the Interpretation Act. The transitional provisions of the new Regulations clearly express the intent of the Governor in Council to apply the new selection system to all applicants before January 1, 2002 who have not been assessed prior to April 1, 2003, with the concession that applicants who have applied before January 1, 2002 will be given a five-point bonus under the new system. This interpretation of the transitional provisions is supported by the case law. Therefore, section 361 of the IRPR is validly authorized retrospective legislation and should operate according to its terms. The applications filed after January 1, 2002 are to be assessed under the new Regulations, and applications filed before January 1, 2002 shall be assessed under the old Regulations up until March 31, 2003.
(2) Mandamus lies to compel the performance of a public legal duty which a public authority refuses or neglects to perform although duly called upon to do so. In Apotex Inc. v. Canada (Attorney General), the Federal Court of Appeal outlined seven conditions that need to be satisfied for the Court to issue a writ of mandamus. First, there must be a public legal duty to act, and second, the duty must be owed to the applicant. The respondent acknowledged that his officials had a statutory duty to process the applicants' visa applications. Therefore, the first two requirements for mandamus were met. The prima facie content of the respondent's duty owed to the applicants who filed their applications before January 1, 2002 was to assess them according to the selection system under the former Act. Until March 31, 2003, the same duty continues in force, with regard to all the applicants who filed before January 1, 2002. Third, there must be a clear right to the performance of the duty owed. The applicants satisfied the conditions precedent giving rise to the duty. They submitted their completed applications accompanied by all the required supporting documents, and paid the required processing fees. They also demanded, in most cases repeatedly, that the duty be performed. The crucial issue was whether the respondent has refused to perform his statutory duty. Neglect to perform the duty or unreasonable delay in performing it may be deemed an implied refusal to perform. The fourth and fifth criteria were also met in so far as no other adequate remedy was available to the applicants and the order sought will be of some practical value or effect. The harm that the applicants may suffer if mandamus is not granted may be irreparable, i.e. their likelihood of obtaining a Canadian immigrant visa is substantially diminished. Their legal right to be assessed under the old selection system will be defeated if they are not processed by the cut-off date. An order of mandamus is the only practical way to protect their right to be assessed under the former Regulations. The sixth condition was also met since there is no equitable bar to the exercise of discretion in favour of the applicants. They were not responsible for the delay and did not compromise their cause in any other way. They came to the Court "with clean hands" and there was no equitable bar to an order of mandamus. Finally, the balance of convenience lay with the applicants since their rights to a visa may be severely prejudiced by the delay.
There are multiple precedents where mandamus has been granted against the Minister by this Court as a result of unreasonable processing delays in immigration or citizenship matters. In the case at bar, the applicants were not responsible for the delay: they satisfied the procedural requirements of the Act and Regulations to the extent possible, in terms of providing the necessary supporting documentation and paying the required processing fees. Therefore the inquiry has to focus on the length of the delay and the nature of the justifications. Cases have held that delays of three to four years were unreasonable on the facts but cautioned against any fixed length of time being considered unreasonable. The particular effects of the delay may be relevant. There was also ample precedent to grant mandamus for the assessment of visa applications where the excuse for the delay is the enormous workload faced by the Immigration Department, and where the delay may result in a substantive detriment to the applicant. With respect to applications filed before January 1, 2002, the respondent had an implied duty to use his reasonable best efforts to assess such applications before March 31, 2003. He failed to do so for a number of reasons. Among these reasons, the respondent ignored the legislative purpose and intent of extending the time frame for assessing such applications and failed to adopt the reasonable advice and recommendations from the appropriate parliamentary Committee. He did not make a corporate commitment to process the inventory on a priority basis to clear the backlog before March 31, 2003. He did not send special teams to visa posts with large inventories to process backlogs before that date, nor did he increase resources dedicated to processing these applications. Moreover, the representative of the respondent misinformed the parliamentary Committee about the number of visa applications filed before January 1, 2002 which were expected not to be processed by the deadline, and the respondent did not inform Parliament of this error when it became evident.
statutes and regulations judicially
considered
An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49, s. 109.
| Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1) "visa officer", 5(2), 9(2) (as am. by S.C. 1992, c. 49, s. 4). |
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 2(2), 3(1), 5, 11(1), 190, 201, 247(a). |
| Immigration and Refugee Protection Regulations, SOR/2002-227, s. 361. |
| Immigration Regulations, 1978, SOR/78-172. |
| Interpretation Act, R.S.C., 1985, c. I-21, s. 43. |
cases judicially considered
applied:
Upper Canada College v. Smith (1920), 61 S.C.R. 413; 57 D.L.R. 648; [1921] 1 W.W.R. 1154; Chen v. Canada (Secretary of State) (1995), 91 F.T.R. 76; 29 Imm. L.R. (2d) 94 (F.C.T.D.); Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742; (1993), 18 Admin. L.R. (2d) 122; 51 C.P.R. (3d) 339; 162 N.R. 177 (C.A.); affd [1994] 3 S.C.R. 1100; (1994), 176 N.R. 1; Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315 (T.D.); Dee v. Canada (Minister of Citizenship & Immigration) (1998), 46 Imm. L.R. (2d) 278 (F.C.T.D.); Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33; (1998), 15 Admin. L.R. (3d) 157; 159 F.T.R. 215 (T.D.); Platonov v. Canada (Minister of Citizenship and Immigration) (2000), 192 F.T.R. 260 (F.C.T.D.); Bouhaik v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 155 (T.D.) (QL); Kanes v. Minister of Employment and Immigration (1993), 72 F.T.R. 226; 22 Imm. L.R. (2d) 223 (F.C.T.D.).
considered:
Meikle v. Canada (Minister of Citizenship and Immigration) (1997), 137 F.T.R. 304; 41 Imm. L.R. (2d) 293 (F.C.T.D.).
referred to:
Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; (1989), 96 A.R. 241; 57 D.L.R. (4th) 458; [1989] 3 W.W.R. 456; 65 Alta. L.R. (2d) 97; 35 Admin. L.R. 1; 93 N.R. 1; R. v. Heywood, [1994] 3 S.C.R. 761; (1994), 120 D.L.R. (4th) 348; 94 C.C.C. (3d) 481; 34 C.R. (4th) 133; 174 N.R. 81; Minister of Manpower and Immigration v. Tsiafakis, [1977] 2 F.C. 216; (1997), 73 D.L.R. (3d) 139; 15 N.R. 39 (C.A.).
authors cited
Canada. House of Commons. Report of the Standing Committee on Citizenship and Immigration. Building a Nation: The Regulations under the Immigration and Refugee Protection Act. March 2002, online: Parliament of Canada Committee Business http://www.parl.gc.ca/InfoComDoc/37/1/CIMM/Studies /Reports/cimmrp04/03-cov-e.htm.
APPLICATION for a writ of mandamus requiring the respondent to assess the applicants for an immigrant visa in accordance with the selection criteria contained in the former Immigration Act and the Immigration Regulations, 1978 or before March 31, 2003. Application allowed with respect to the applicants who applied for permanent residence prior to January 1, 2002; application dismissed with respect to those who applied for permanent residence after January 1, 2002 but prior to June 28, 2002.
appearances:
Timothy E. Leahy, David L. Rosenblatt, Marvin Moses, Lawrence Wong and Mitchell S. Brownstein for applicant.
A. Leena Jaakkimainen, Daniel Latulippe, R. Keith Reimer and Bradley G. Gotkin for respondent.
solicitors of record:
Immigration North America, Toronto, Rosenblatt Associates, Toronto, Moses and Associates, Toronto, Chang & Boos, Toronto, Brownstein, Brownstein & Associates, Montréal, Bohbot and Associates, Montréal, Lawrence Wong and Associates, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1]Kelen J.: This consolidated application involves 124 applicants who applied for permanent residence in Canada before June 28, 2002, the day that the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) came into force. When the applicants applied for permanent residence, the recently repealed Immigration Act, R.S.C., 1985, c. I-2 (the former Act) and the corresponding regulations, the Immigration Regulations, 1978, SOR/78-172 (the 1978 Regulations), were still in force.
[2]The applicants seek a writ of mandamus requiring the respondent to assess them for an immigrant visa in accordance with the selection criteria contained in the former Act and the 1978 Regulations.
THE APPLICANTS
[3]The respondent was served with notices of application in 122 of these files between June 25 and June 27, 2002. As all of the applications involve the same issues and seek the same relief, they were consolidated by an order dated October 29, 2002. Three more applications were later added on consent and one was removed when the applicant was issued a visa in November 2002.
[4]The applicants can be divided into two categories based on their date of application. The first category consists of 102 applicants who applied for permanent residence in Canada before January 1, 2002, and they are identified in Schedule A attached hereto. They applied with the expectation that they would be assessed according to the selection criteria contained in the 1978 Regulations. Subsection 361(3) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the IRPR) directs that their applications be awarded units of assessment in accordance with the 1978 Regulations until March 31, 2003. After that date, any pending applications will be awarded units of assessment in accordance with the IRPR. To ease the transition process, subsection 361(5) of the IRPR provides that applicants in the federal skilled worker class are only required to meet a pass mark of 70 points, as opposed to the 75-point pass mark imposed upon new applicants. The applicants fear that they may be refused under the new selection criteria contained in the IRPR and are seeking writs of mandamus compelling the Minister to either award them units of assessment under the former selection grid or assess their applications prior to March 31, 2003.
[5]The second category consists of 22 applicants who applied for permanent residence after January 1, 2002 but before June 28, 2002, and they are identified in Schedule B attached hereto. While these applicants also applied under the former Act, they have been treated differently than the first category of applicants as a result of the transitional provisions of the IRPR. As of June 28, 2002, all of the applicants in this category are to be assessed under the selection criteria in the IRPR and those in the federal skilled worker class must meet a pass mark of 75 points. The rationale behind this policy, as identified by the respondent, is that the applicants in this category applied after the IRPR were first pre-published on December 17, 2001, and therefore had notice of the new selection criteria at the time of their applications. The applicants in this category are seeking writs of mandamus requiring the Minister to assess their applications in accordance with the selection criteria contained in the 1978 Regulations.
ISSUES
[6]This case raises two issues:
1. does IRPA and the new Regulations retrospectively remove the applicants' vested right to have their applications for permanent residence in Canada assessed under the former Act and 1978 Regulations?; and,
2. are the applicants entitled to a writ of mandamus directing the respondent to assess and award units of assessment in accordance with the selection criteria in the former Act and the 1978 Regulations?
LEGISLATIVE FRAMEWORK
[7]The provisions that govern the treatment of these applications are set out in this section.
IRPA (the new Act)
3. (1) The objectives of this Act with respect to immigration are
. . .
(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;
. . .
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.
(2) The Minister shall cause a copy of each proposed regulation made pursuant to sections 17, 32, 53, 61, 102, 116 and 150 to be laid before each House of Parliament, and each House shall refer the proposed regulation to the appropriate Committee of that House.
(3) A proposed regulation that has been laid before each House of Parliament under subsection (2) does not need to be so laid again, whether or not it has been altered.
(4) The Governor in Council may make the regulation at any time after the proposed regulation has been laid before each House of Parliament under subsection (2).
[8]Section 190 of the IRPA provides for the application of the IRPA to applications pending on June 28, 2002:
190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.
[9]Section 201 of the IRPA grants the Governor in Council the authority to make regulations dealing with the transition from the former Act to the IRPA:
201. The regulations may provide for measures regarding the transition between the former Act and this Act, including measures regarding classes of persons who will be subject in whole or in part to this Act or the former Act and measures regarding financial and enforcement matters.
The new Regulations
[10]The relevant transitional regulation made by the Governor in Council is section 361 of the new Regulations. The relevant portions of that section are reproduced here:
361. (1) If, before the day on which this section comes into force, a foreign national referred to in subsection (2) has been assessed by a visa officer and awarded the number of units of assessment required by the former Regulations, that assessment is, for the purpose of these Regulations, an award of points equal or superior to the minimum number of points required of
(a) a skilled worker, in the case of a foreign national described in paragraph (2)(a);
(b) an investor, in the case of a foreign national described in paragraph (2)(b);
(c) an entrepreneur, in the case of a foreign national described in paragraph (2)(c); or
(d) a self-employed person, in the case of a foreign national described in paragraph (2)(a).
(2) Subsection (1) applies in respect of a foreign national who submitted an application under the former Regulations, as one of the following, for an immigrant visa that is pending immediately before the day on which this section comes into force:
(a) a person described in subparagraph 9(1)(b)(i) or paragraph 10(1)(b) of the former Regulations;
(b) an investor; or
(c) an entrepreneur.
(3) During the period beginning on the day on which this section comes into force and ending on March 31, 2003, units of assessment shall be awarded to a foreign national, in accordance with the former Regulations, if the foreign national is an immigrant who,
(a) is referred to in subsection 8(1) of those Regulations, other than a provincial nominee; and
(b) before January 1, 2002, made an application for an immigrant visa under those Regulations that is still pending on the day on which this section comes into force and has not, before that day, been awarded units of assessment under those Regulations.
(4) If, before the day on which this section comes into force, a foreign national referred to in subsection (3) has been assessed by a visa officer and awarded the number of units of assessment required by the former Regulations, that assessment is, for the purposes of these Regulations, an award of points equal or superior to the minimum number of points required of a federal skilled worker, an investor, an entrepreneur or a self-employed person, as the case may be.
(5) If a foreign national referred to in paragraph (2)(a) made an application before January 1, 2002 for an immigrant visa and has not, before April 1, 2003, been awarded the number of units of assessment required by the former Regulations, they must obtain a minimum of 70 points based on the factors set out in paragraph 76(1)(a) to become a permanent resident as a member of the federal skilled worker class.
FACTS
Legislative history
| (a) Committee Hearings |
[11]On December 15, 2001, the respondent tabled the proposed new Regulations which created a new selection system for immigrants and transitional provisions. Under subsection 5(2) of IRPA, the respondent must table proposed Regulations with respect to certain subject-matters before Parliament, and Parliament shall refer the proposed Regulations to the appropriate parliamentary Committee.
[12]In January, February and March 2002, the House of Commons Standing Committee on Citizenship and Immigration (the Committee) held hearings to consider the proposed new Regulations. It is clear that there was wide-spread condemnation by the Committee that the Regulations will apply to, and prejudice, the thousands of applicants for an immigrant visa who applied under the former Regulations before the government announced the new Regulations. The proposed Regulations were to take effect at the same time as the new Act, viz., June 28, 2002.
[13]On February 26, 2002 the respondent "accepted the fairness and equity concerns" raised before the Committee that applicants for immigrant visas filed before the new Regulations were announced ought to be assessed under the selection criteria in effect at the time they applied. The Minister announced that such applicants would continue to be selected under the current selection criteria until January 1, 2003, and that skilled workers and business immigrants who have not received a selection decision prior to January 1, 2003, would be subject to the new selection criteria under the new Regulations but with a reduced pass mark of 70 points instead of 75. The respondent also announced that visa applicants whose applications have not received a preliminary evaluation called a paper screening, can request a recall of their application and request a refund of the processing fee since they originally applied with the expectation that they would be assessed under the old selection criteria.
[14]This announcement did not allay the fairness and equity concerns of the parliamentarians on the Committee. On March 12, 2002 Ms. Joan Atkinson, Assistant Deputy Minister, Policy and Program Development, Department of Citizenship and Immigration appeared before the Committee. She testified about the six-month extension announced by the Minister and said at page 14 of the transcript:
We feel that the six months gives us adequate time to address a good proportion of that backlog . . . again, the objective is to try to mitigate the impact of retroactivity and mitigate the impact of this transition period . . . .
[15]The parliamentarians on the Committee were not satisfied. They questioned Ms. Atkinson about the number of applications in the system before the proposed Regulations were announced that would not be processed by January 1, 2003. At page 25 of the transcript, Ms. Atkinson said:
. . . our international region believed that by January 1, 2003, they will hopefully have dealt with about 90,000 applications of those 120,000 people awaiting a selection decision. So that's a little better picture than the one I just gave you . . . .
From this point forward, the Committee understood that there would be 30,000 applications filed under the old system which would not be processed by January 1, 2003. Members of the Committee decided that the Regulations ought to be amended to extend the time for processing these old applications until March 31, 2003 so that they can be processed under the old selection criteria. The witness for the respondent was asked if these applications can be given a priority so that they can be dealt with under the old system by this time. Ms. Atkinson implied at page 28 of the transcript that this could be done:
We can look at how we can put resources toward trying to deal with those individuals who are in that inventory and to process as many as we can under the old system before the new system has to apply. That's an option that could be pursued. Without additional resources, we have to decide where we would take resources from to put into places such as Beijing and other places where we have large inventories. That can be done.
| (b) Committee Report |
[16]In March 2002 the House of Commons Standing Committee on Citizenship and Immigration issued a Report [Building a Nation: the Regulations under the Immigration and Refugee Protection Act] regarding "the proposed regulations under the Immigration and Refugee Protection Act". In the first section of the Report under the heading entitled "Retroactivity", the Committee stated:
Unfortunately, by January 1, 2003 there will still be approximately 30,000 files remaining.
Although the Committee appreciates the government's responsiveness on this issue, we have concluded that the revised proposal does not go far enough. Those who will not have received a selection decision before the end of 2002 have the same hopes and dreams of immigrating to Canada as those who will receive a decision before that time. We believe that more of an effort can and must be made to process as many of these applications as possible by extending the deadline by three months.
. . .
We therefore recommend that processing of applications received before December 31, 2001 should continue until the end of March, 2003.
[17]The Committee recommended the extension together with four other recommendations so that applications filed before December 31, 2001 would be processed by March 31, 2003. These four other recommendations were as follows:
1. the respondent make a corporate commitment to process the inventory on a priority basis;
2. the visa posts with a significant inventory should reassess their general policies regarding personal interviews so as to process more applications before the deadline;
3. special teams should be sent to visa posts with large inventories to process backlogs so that applicants are not disadvantaged by their place of application; and,
4. for fairness and equity the government should increase resources dedicated to processing the applications.
Respondent disregarded Committee's recommendations
[18]When the Governor in Council passed the proposed Regulations, it accepted the recommendation from the parliamentary Committee and extended the time frame from December 31, 2001 to March 31, 2003. However, the evidence before this Court makes clear that while the new Regulations extended the deadline until March 31, 2003:
1. no corporate commitment was made to process the inventory on a priority basis to clear this backlog;
2. the visa posts with a significant inventory did not reassess their general policies regarding personal interviews so as to process more applications before the deadline;
3. the respondent did not send special teams to visa posts with large inventories to process backlogs; and,
4. the respondent did not increase resources dedicated to processing these applications.
In this way, the respondent ignored the parliamentary Committee's recommended course of action so as to be able to process the applications filed before January 1, 2002 by the extended deadline of March 31, 2003.
Purpose and intent of the extension to March 31, 2003
[19]The purpose and intent of extending the time frame for assessing applications filed before January 1, 2002 was to provide time to assess those applications. The Minister first extended the deadline from June 28, 2002 until December 31, 2002 to "address concerns about fairness and equity". Since it was clear to the Committee that there would still be 30,000 applications in this category pending on December 31, 2002, the parliamentary Committee recommended the time frame be further extended to March 31, 2003.
The numbers
[20]When this matter was heard the respondent did not have a reasonable grasp on the number of applications for immigrant visas which were filed before January 1, 2002, and which will not be processed by March 31, 2003. In evidence before the Committee on March 12, 2002, the officials for the respondent advised the Committee that there would be 30,000 such applications not processed by December 31, 2002. Based on the evidence before this Court, which was subject to cross-examination, it is clear that the respondent provided the Committee with significantly incorrect numbers. Rather than the 30,000 such applications expected to be outstanding as of December 31, 2002, the evidence established that there will be 80,000 to 120,000 such applications expected to be outstanding as of March 31, 2003. Of course, this hearing is only with respect to 124 applications.
The adverse effect of the new Regulations on the applicants
[21]It is not necessary to detail the differences between the former Regulations and the new Regulations on the applicants. It is clear that the applicants are concerned that they will be denied a visa under the new Regulations, while they would be granted a visa if they are assessed under the 1978 Regulations. For this reason, the applicants believe that they will lose important rights to a Canadian visa if they are to be assessed under the selection criteria in the new Regulations. The Court is satisfied that the applicants have legitimate concerns in this regard.
Delays and the visa application process
[22]The 124 applications, which are the subject of this consolidated application, were filed at 21 different overseas visa offices. The evidence is clear that these offices have experienced exponential increases in immigrant visa applications and that the visa offices only process a limited number of applicants per year in accordance with a quota assigned by the respondent. As a result, there is a backlog at many visa posts where applicants must wait years for an interview. The visa application process is explained at the respondent's Web site dated June 5, 2002 entitled "Canadian Immigration Missions Overseas-A Quick Guide to Visa Offices; Where They Are, What They Do and Who Works There". The visa application process is explained as follows:
The application is assessed at a visa office. This involves confirming the identity of the applicant, determining the eligibility for immigration, and determining if the applicant meets security, medical and criminal requirements. Sometimes, this can be done through the mail. Complicated cases may require interview. The visa officer must make the decision whether to issue or refuse the visa.
The evidence established that the visa application is initially "paper screened" by a case analyst who makes a preliminary "immigrant assessment record summary". At this stage, the visa applicant is assigned a number of units of assessment, and a visa officer decides whether the application is denied on the basis of the preliminary assessment, whether the application is granted without requiring an interview, or whether the applicant should be scheduled for an interview. The evidence established that this paper screening step only takes between 10 and 15 minutes. In 2001, for all immigrant categories worldwide, 48% of the applications were granted at this stage without requiring an interview.
[23]If an interview is required following the paper screening, the applicants are placed in a notional queue, which visa offices frequently reported takes 15 months. The average length of the interview, when it does take place, is about one hour. At that point, the visa officer assesses a final award of units of assessment unless certain matters arise at the interview which require verification.
Example of the delay
[24]To give one actual example, the Court will refer to the application filed by Mr. Majumdar Anup Kumar (hereinafter referred to as Mr. Majumdar), Court Docket No. IMM-3077-02.
(a) Mr. Majumdar filed an application for permanent residence in Canada at the Canadian visa office in Hong Kong on June 1, 1999. Mr. Majumdar is a mechanical engineer with a Bachelor of Mechanical Engineering and with 12 years' work experience. All the necessary documents and the required visa processing fee in the amount of $1,100 were sent with the application.
(b) On August 5, 1999 the Hong Kong visa office acknowledged receipt of the visa application with the correct fee payment, assigned the application a file number, and advised that an initial assessment of the application would be conducted within the next "6 months".
(c) On October 21, 1999 the Hong Kong visa office advised that the initial assessment of the application had been completed and that the applicant would be notified within "15 months" regarding an interview date and that interviews generally take place 2-3 months following the notification letter (15 months from October 21, 1999 is January 21, 2001).
(d) Since the 15-month period expired without any contact from the visa office, on June 12, 2001 (20 months later), counsel for the applicant sent a letter to the program manager for the respondent at the Hong Kong visa office requesting an interview date and status report.
(e) There was no response to this letter so counsel sent a "reminder fax" to the program manager on August 22, 2001. The fax noted that counsel had left "several telephone messages on the program manager's voice mail".
(f) As of the date of the hearing, Mr. Majumdar has not been contacted by the visa office in Hong Kong and has not been scheduled for an interview, notwithstanding that his application was filed 44 months ago.
[25]Mr. Majumdar deposed that he would not qualify under the new immigration selection criteria for skilled workers, that he would have qualified for a visa under the former Regulations, and that he had invested more than $6,000 and over three years of his life toward his application for a Canadian visa.
Immigration revenue from cost recovery fees charged visa applicants
[26]Immigration revenue from cost recovery fees that were charged to visa applicants and collected by all visa missions for the fiscal year end of March 31, 2002 totalled $310 million. The budget expenditures for overseas visa offices in 2002 was $185.8 million. Accordingly, the government collected $125 million more in visa application cost recovery revenue than it spent in 2002 for overseas visa offices. The evidence established that this revenue is deposited in the Consolidated Revenue Fund. The evidence also established that the respondent did not make any request in 2002 for additional resources or budget allocations to process the backlog of visa applications by March 31, 2003.
SWAT teams
[27]The evidence established that the respondent sent special teams, called SWAT teams, to overseas visa offices in 2001 to clear backlogs at missions with large inventories. The respondent requested and obtained extra resources from the government in 2001 for this purpose. The Committee recommended that such SWAT teams be used in 2002 to clear backlogs. However, the respondent made no request for extra resources for such SWAT teams to clear backlogs prior to March 31, 2003. The evidence of Mr. Daniel Jean, Director General of International Region, Citizenship and Immigration Canada established that such SWAT teams can be put together from experienced officials based in Ottawa and that the necessary training for the SWAT teams takes two weeks.
Number of officials processing visa applications overseas
[28]The actual number of immigration officials in overseas offices processing applications for visas declined in 2002 compared with 2001. Immigration staff at overseas visa offices in 2002 totalled 1,366, compared with 1,403 in 2001.
No effort to process backlog before March 31, 2003
[29]In the cross-examination of Mr. Daniel Jean, the principal witness for the respondent, Mr. Jean said there is no temporary objective, program or personnel in place to clear the backlog of applications because the respondent is meeting its immigration target levels. Mr. Jean confirmed that there were no new resources deployed to clear the backlog.
Hong Kong Visa Office closed for three months
[30]About 11,000 applications received before January 1, 2002 in Hong Kong will likely not be processed as of March 31, 2003. The Hong Kong visa office closed for three months in the summer of 2002 and thereby stopped assessing applicants. The purpose of the closure was to train the Hong Kong staff on the new Act.
Applicants are not queue jumpers
[31]It is important to note that the applicants in this case have followed the Canadian rules and Canadian law to seek admission to Canada. They are not "queue jumpers". Moreover, these applicants are generally skilled workers who believe that they would qualify for landing in Canada under the former Regulations.
ANALYSIS
Retrospectivity
[32]The applicants argue that, despite the repeal of the former Immigration Act by paragraph 274(a) of the IRPA, the rights acquired under the former Immigration Act survive by virtue of section 43 of the Interpretation Act [R.S.C., 1985, c. I-21], which preserves in force the rights and duties accrued under repealed legislation. The applicants further contend that such survival of their rights under the former Immigration Act is not precluded by section 190 of the IRPA, and that the retrospective operation of section 361 of the IRPR is not authorized in the framework legislation.
[33]In order to assess the merits of this argument, the Court has to look at the specific statutory language used in the transitional provisions of the IRPA and the Regulations made under those provisions. The Court will presume that legislation is not intended to have a retrospective effect when the provision substantially affects the vested rights of a party, see Brosseau v. Alberta Securities Commission, [1989]1 S.C.R. 301. As this is only a presumption, it can be rebutted. As Mr. Justice Duff stated in Upper Canada College v. Smith (1920), 61 S.C.R. 413, at page 419:
. . . that intention may be manifested by express language or may be ascertained from the necessary implications of the provisions of the statute, or the subject matter of the legislation or the circumstances in which it was passed may be of such a character as in themselves to rebut the presumption that it is intended only to be prospective in its operation.
[34]It is also now well established that the Court can examine the legislative history of a provision when interpreting its meaning, see R. v. Heywood, [1994] 3 S.C.R. 761, at pages 787-789.
[35]Upon considering the express words used by Parliament in sections 190 and 201 of the IRPA, the Court is satisfied that Parliament intended the new Act apply to applications for permanent residence filed under the former Act, and that it delegated to Governor in Council the authority to make regulations that would set out the transitional legal regime for such applications. In other words, the statutory language clearly conveys the legislative intent to apply the new Act retrospectively and to authorize regulations with retrospective effect. It is trite law that Parliament can expressly enact retroactive or retrospective legislation, and this clear expression overrides the presumption against retroactivity or retrospectivity, which is identified in section 43 of the Interpretation Act.
[36]The Regulations, in full compliance with the authorizing section of the Act (section 201), make certain transitional exceptions from the general retrospective regime. These exceptions only apply to applications filed before January 1, 2002. In particular, subsection 361(3) provides that, until March 31, 2003, units of assessment shall be awarded to economic class applicants who applied before January 1, 2002 in accordance with the former Regulations. Subsection 361(5) provides that, beginning from April 1, 2003, such applicants will be assessed under the new Regulations but will have to obtain a minimum of 70 points (as opposed to the general pass mark of 75) to qualify in the federal skilled worker class. In my opinion, these provisions clearly express the intent of the Governor in Council to apply the new selection system to all applicants before January 1, 2002 who have not been assessed prior to April 1, 2003, with the concession that applicants who applied before January 1, 2002 will be given a five-point bonus under the new system.
[37]This interpretation of the transitional provisions is supported by jurisprudential precedent. In Chen v. Canada (Secretary of State) (1995), 91 F.T.R. 76, the Federal Court Trial Division was concerned with interpretation of section 109 of An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49 (commonly known as Bill C-86)--a provision quite similar in language to section 190 of the IRPA. Rothstein J. held that such language was sufficiently clear to convey the legislative intent that the law should apply retrospectively (at paragraph 12):
. . . Parliament, by section 109, has clearly stated how amendments to the Immigration Act under Bill C-86 are to apply. Such express statutory provision overrides any common law rule or general provision in the Interpretation Act applicable in the absence of such legislation.
I therefore conclude that section 361 of the IRPR is validly authorized retrospective legislation and should operate according to its terms. This means that the applications filed after January 1, 2002 are to be assessed under the new Regulations, and applications filed before January 1, 2002 shall be assessed under the old Regulations up until March 31, 2003.
Mandamus
[38]Mandamus lies to compel the performance of a public legal duty which a public authority refuses or neglects to perform although duly called upon to do so, Minister of Manpower and Immigration v. Tsiafakis, [1997] 2 F.C. 216 (C.A.).
| Criteria for mandamus |
[39]In Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), affd [1994] 3 S.C.R. 1100, the Federal Court of Appeal conducted an extensive review of the jurisprudence relating to mandamus and outlined the following conditions that need to be satisfied for the Court to issue a writ of mandamus:
(1) There must be a public legal duty to act.
(2) The duty must be owed to the applicant.
(3) There is a clear right to the performance of that duty, in particular:
| (a) the applicant has satisfied all conditions precedent giving rise to the duty; |
| (b) there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay. |
(4) No other adequate remedy is available to the applicant.
(5) The order sought will be of some practical value or effect.
(6) The Court in the exercise of discretion finds no equitable bar to the relief sought.
(7) On a "balance of convenience" an order in the nature of mandamus should issue.
| Criteria 1-2: Duty to act-statutory source |
[40]The respondent acknowledges in paragraph 58 of his memorandum of fact and law that his officials have a statutory duty to process the applicants' visa applications. Therefore the first two requirements for mandamus are met. There is a public duty to act and the duty is owed to the applicants. In order to ascertain the content of that duty, it is useful to refer to its statutory sources.
[41]When the applicants submitted their applications for permanent residence, the former Act was still in force. Subsection 5(2) of the former Act imposes on the respondent a clear obligation to grant landing to an applicant for permanent residence who meets the relevant statutory requirements:
5. . . .
(2) An immigrant shall be granted landing if he is not a member of an inadmissible class and otherwise meets the requirements of this Act and the regulations.
Further, subsection 9(2) [as am. by S.C. 1992, c. 49, s. 4] of the former Act imposes a positive duty on the visa officer to assess every application for permanent residence in accordance with the Act and its attendant Regulations:
9. . . .
(2) An application for an immigrant's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every dependant of that person appear to be persons who may be granted landing.
That duty of the visa officer is continued by the IRPA, which came into force on June 28, 2002. Pursuant to section 190 of the IRPA, all applications "pending or in progress" became governed by the IRPA upon its coming into force. Under subsection 2(2) of the IRPA, references to "this Act" (i.e. IRPA) include Regulations made under it (IRPR). Therefore, since June 28, 2002, the applicants' applications are governed by the IRPA and the IRPR. Under subsection 361(3) of the IRPR, the economic class applications filed prior to January 1, 2002 must continue to be assessed according to the selection system in force at the time of their submission until March 31, 2003.
[42]It is clear, therefore, that the prima facie content of the respondent's duty owed to the applicants who filed their applications before January 1, 2002 is to assess them according to the selection system under the former Act. That duty appears on the face of the statutory framework. It arose, with regard to each of the applicants, when they filed their application for permanent residence. Until March 31, 2003, the same duty continues in force, with regard to all the applicants who filed before January 1, 2002.
[43]The IRPA itself is also a source of obligations similar to those found in the former Act. Subsection 11(1) of the IRPA is analogous to subsection 9(2) of the former Act, providing for a visa officer's duty to assess:
11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
The content of the officer's duty of assessment under IRPA should certainly be interpreted in light of its other provisions, including the reference to "consistent standards and prompt processing" in paragraph 3(1)(f).
[44]The Minister is responsible for his visa officers, and it is impracticable to name each and every visa officer overseas. A "visa officer" is defined in subsection 2(1) of the former Immigration Act as "an immigration officer stationed outside Canada and authorized by order of the Minister to issue visas". The respondent does not take issue with being named the respondent, instead of individual visa officers.
| Criterion 3: Right to performance |
[45]The applicants in this case have satisfied the conditions precedent giving rise to the duty. They submitted their completed applications accompanied by all the required supporting documents, and paid the required processing fees. They also demanded, in most cases repeatedly, that the duty be performed. The crucial issue is whether the respondent has refused to perform his statutory duty. The refusal, as we know from jurisprudence, may be either express or implied. Neglect to perform the duty or unreasonable delay in performing it may be deemed an implied refusal to perform.
| Criteria 4-5: No other adequate remedy, and |
| The order sought will be of some practical value or effect |
[46]The harm that the applicants may suffer if mandamus is not granted may be irreparable, i.e. their likelihood of obtaining a Canadian immigrant visa is substantially diminished. Their legal right to be assessed under the old selection system will be defeated if they are not processed by the cut-off date. That the applicants may be assessed under the new system instead does not serve as an adequate remedy if there is a likelihood that they will not qualify for a visa. An order of mandamus is the only practical way to protect their right to be assessed under the former Regulations.
| Criterion 6: The Court in the exercise of discretion finds no equitable bar to the relief sought |
[47]There is no equitable bar to the exercise of discretion in favour of the applicants. The applicants have not been responsible for the delay and have not compromised their cause in any other way. They come to the Court "with clean hands", and there is no equitable bar to an order of mandamus.
| Criterion 7: On a "balance of convenience" an order in the nature of mandamus should issue |
[48]I am satisfied that the balance of convenience lies with the applicants since their rights to a visa may be severely prejudiced by the delay.
Five cases where mandamus granted against the respondent
[49]Neglect to perform the duty or unreasonable delay in performing it may be deemed an implied refusal to perform. There are multiple precedents where mandamus has been granted against the Minister by this Court as a result of unreasonable processing delays in immigration or citizenship matters. For instance, in Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315 (T.D.), the applicant was a sponsored member of the family class, and the processing delay was attributed by the respondent to an investigation as to the bona fides of the marriage combined with background eligibility checks. No decision was made within four and a half years from the date the application had been filed. Strayer J. (as he then was) held that the delay was unreasonable, amounted to a failure to make a decision, and warranted an order of mandamus against the Minister.
[50]In Dee v. Canada (Minister of Citizenship & Immigration) (1998), 46 Imm. L.R. (2d) 278 (F.C.T.D.), no decision in an application for landing was made within four years, despite repeated promises that a decision would be made in the near future. The respondent attributed the delay to an investigation into the applicant's alleged criminal activities abroad, but could provide no convincing proof of such. Muldoon J. did not accept the respondent's assurances that "the respondent is actively processing the applicant's application and a decision is expected within the next four months" (at paragraph 4). He granted an order of mandamus with costs on a solicitor-client basis.
[51]In Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33 (T.D.), no decision was made in a citizenship application, due to CSIS investigation which was still incomplete after three years. Tremblay-Lamer J. remarked that, although no time limits were placed by statute on the powers of CSIS investigators, there was an implied obligation to complete the inquiries within a reasonable time. She granted an order of mandamus compelling the officer of the respondent to close the inquiry unless a clear justification to continue it could be stated within a fixed time limit.
[52]The case of Platonov v. Canada (Minister of Citizenship and Immigration) (2000), 192 F.T.R. 260 (F.C.T.D.), concerned an application for permanent residence in the investor category. The applicant was interviewed by a visa officer and provisionally approved. The medical examinations were completed and the required sum of money was deposited in the investor fund. The applicant even attended a second interview. However, within a three-year period the respondent still did not complete the background checks regarding the applicant's business contacts. MacKay J. granted an order of mandamus, referring in his decision to Bhatnager, Dee and Conille, supra.
[53]In Bouhaik v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 155 (T.D.) (QL), the applicant filed an application for landed immigrant status after having been recognized as a Convention refugee. There was, however, a four-year delay in CSIS inquiries into security ramifications of accepting the applicant. Lemieux J., while acknowledging the importance of security matters, ruled that the circumstances of the delay were as unreasonable as those in Bhatnager, supra, and granted a mandamus, requiring the respondent to finalize the application within six months from the date of the order.
Reasonableness of delay
[54]These cases provide some guidance with respect to assessing the reasonableness of a specific delay. In particular, in Bhatnager, supra, Strayer J. stated at page 317:
. . . mandamus can issue to require that some decision be made. Normally this would arise where there has been a specific refusal to make the decision, but it may also happen where there has been a long delay in the making of a decision without adequate explanation.
Justice Strayer articulated two indicia of unreasonable delay: its long duration, coupled with an absence of a reasonable explanation. The same parameters were refined in Conille, supra, where Tremblay-Lamer J. noted at paragraph 23 that a delay will be considered unreasonable if:
(1) the delay in question has been longer than the nature of the process required, prima facie;
(2) the applicant and his counsel are not responsible for the delay;
(3) the authority responsible for the delay has not provided satisfactory justification.
In the case at bar, the applicants have not been responsible for the delay: the applicants have satisfied the procedural requirements of the Act and Regulations to the extent possible, in terms of providing the necessary supporting documentation and paying the required processing fees. The inquiry, therefore, has to focus on the length of the delay and the nature of the justifications offered by the respondent.
[55]A few of the applicants have been waiting for over two to three years. What period of time would be considered too long to process an immigration file? In Bhatnager, supra, the delay was four and a half years; in Dee, supra, and in Bouhaik, supra, about four years; in Conille, supra, and in Platonov, supra, about three years. All those delays were considered unreasonable on the facts. The holdings did not, in the words of Strayer J. in Bhatnager, supra, at page 317, "fix any uniform length of time as being the limit of what is reasonable." Justice MacKay in Platonov, supra, also expressly cautioned against such an approach at paragraph 10:
Each case turns upon its own facts, and I am not persuaded that the jurisprudence in relation to this matter is particularly helpful, except to outline some parameters within which the Court has issued an order in the nature of mandamus where it has found there has been unusual delay which is not reasonably explained.
[56]The particular effects of the delay and the particular prejudice it may cause have to be considered.
[57]In Kanes v. Minister of Citizenship and Immigration (1993), 72 F.T.R. 226 (F.C.T.D.), Cullen J. held that the delay in processing the applicant's claim was unreasonable not because of its specific duration, but because it resulted in a severe substantive detriment to the applicant following a legislative amendment. He stated at paragraph 26 that, in such circumstances, "the change in the legislation cannot be used to operate to the detriment of the applicant." Likewise, in Meikle v. Canada (Minister of Citizenship and Immigration) (1997), 137 F.T.R. 304 (F.C.T.D.), Heald D.J. ruled [at paragraph 17] that a delay of 20 months was unreasonable where it "had the effect of depriving the applicant of rights already vested in him".
[58]The respondent contends that the delay is caused by his limited resources in the face of the ever increasing volume of incoming immigrant applications. In Conille, supra, and Platonov, supra, the delay was attributed to a backlog of security inquiries, and that was not accepted by the Court as a reasonable explanation. In Kanes, supra, Cullen J. noted at paragraph 26:
The respondent has demonstrated the enormous workload faced by the Department, however, that cannot be used in this case as an excuse for their delay in processing a valid claim, which claim would have been accepted but for the delay and the change in legislation.
Accordingly, there is ample precedent to grant mandamus for the assessment of visa applications where the excuse for the delay is the enormous workload faced the by Immigration Department, and where the delay may result in a substantive detriment to the applicant.
The duty and its breach
[59]The respondent admits that he has a statutory duty to process the applications for immigrant visas in this case. In February 2002 the respondent announced "for reasons of fairness and equity" a six-month extension for assessing applications under the former Regulations from June 28 to December 31, 2002. Since this proposed six-month extension did not satisfy the parliamentary Committee responsible for analysing the proposed Regulations, and since the parliamentary Committee recommended a further three-month extension so that the backlog of applications could be assessed under the former Regulations, the Governor in Council enacted an extension to March 31, 2003, which extension was implicitly to assess the backlog.
[60]With respect to applications filed before January 1, 2002, the Court is satisfied that the respondent has an implied duty to use his reasonable best efforts to assess such applications before March 31, 2003. The evidence before this Court is that the respondent made no such effort and treated the outstanding applications as if there was no looming deadline.
[61]The Court concludes that the respondent neglected his implied duty to use reasonable best efforts to assess the applications before March 31, 2003 for the following nine reasons:
(1) the respondent ignored the legislative purpose and intent of extending the time frame for assessing such applications, failed to adopt the reasonable advice and recommendations from the parliamentary Committee or any other procedures on how to make reasonable best efforts to assess these applications within the extended time frame, and ignored the objective of IRPA in paragraph 3(1)(f) which requires the "prompt processing" of visa applications;
(2) the principal witness testified that the respondent has made no special effort to process the backlog before March 31, 2003 in that the respondent had no objective, program, personnel or request for extra resources for this purpose;
(3) the respondent did not make a corporate commitment to process the inventory on a priority basis to clear this backlog;
(4) the visa posts with a significant inventory did not reassess their general policies regarding personal interviews so as to process more applications before March 31, 2003;
(5) the respondent did not send special teams, sometimes called SWAT teams, to visa posts with large inventories to process backlogs before March 31, 2003, notwithstanding the respondent's past practice in this regard;
(6) the respondent did not increase resources dedicated to processing these applications, notwithstanding a 125 million dollar surplus in revenue generated from cost recovery fees charged visa applicants compared with overseas visa office expenditures for the year ended March 31, 2002;
(7) the representative of the respondent misinformed the parliamentary Committee about the number of visa applications filed before January 1, 2002 which were expected not to be processed by the deadline, and the respondent did not inform Parliament of this error when it became evident. (It was on the basis of this misinformation that the Committee recommended the deadline for processing applications be extended to March 31, 2003, so that the erroneously estimated backlog could be processed by that time);
(8) some of the applicants have been waiting in excess of three years for an interview. Many of these applicants were advised by the visa office that they would be contacted within 15 months to schedule an interview. Instead, they were not contacted, and are now advised that new legislation will adversely impact their likelihood of receiving a Canadian immigrant visa; and,
(9) the respondent closed the Hong Kong visa office for three months in 2002 to train staff rather than require the staff use their best efforts to assess the backlog before March 31, 2003.
Time required to assess the 102 applications filed before January 1, 2002
[62]Since the 102 applications filed before January 1, 2002 have been paper screened, they only require an interview before they can be assessed under the former Regulations. Since the average interview takes one hour, the respondent can assess these applications in 102 man-hours. Considering that these applications are at several different visa offices, and that the respondent has hundreds of visa officers overseas, the respondent can immediately contact, interview and assess the applicants within the next three weeks, well before March 31, 2003. It is not necessary for the purposes of subsection 361(3) of the Regulations that the medical and security checks be finalized by that date, or that a visa be granted or denied. It is only necessary that units of assessment be awarded to a foreign national in accordance with the former Regulations by that date. If it becomes apparent that the respondent cannot assess any of these applications by March 24, 2003, this Court retains jurisdiction to consider a motion from any of the parties for an alternative remedy.
Paper screening stage
[63]The parties raised a number of other issues which the Court does not need to decide in view of its findings. For example, the question whether the "immigrant assessment record summary" prepared at the time of the paper screening stage is an award of units of assessment for the purposes of subsection 361(3). This is a preliminary assessment subject to change at the interview stage. This is not a final award. Subsection 361(5) provides that if a foreign national has not been awarded the number of units of assessment required by the former Regulations before April 1, 2003, he must obtain a minimum of 70 points based on the factors set out in the new Regulations.
CONCLUSION
[64]For these reasons, the Court will grant a writ of mandamus in the 102 Court files set out in Schedule "A" hereto requiring the respondent and his officers, on or before March 31, 2003, to assess the 102 applicants and award units of assessment in accordance with the former Regulations. The applications for judicial review set out in Schedule B hereto with respect to applicants who filed after January 1, 2002 will be dismissed.
[65]This Court proceeding only applies to the applications which are the subject of this consolidated application. The parties have worked hard over the past five months to have these cases heard before March 31, 2003. At this point, it is too late for the Court to consider before March 31, 2003 any new applications for a writ of mandamus with respect to the remaining 80,000 to 120,000 visa applications filed before January 1, 2002.
[66]As indicated at the conclusion of the oral hearing, the parties may file submissions in writing regarding any question of serious general importance which ought to be certified for appeal, and regarding the award of legal costs. The Court requests such submissions within four days, and reply within two days thereafter.
SCHEDULE A
Applications submitted prior to January 1, 2002
1. ABEDIN, Ziaul IMM-3193-02
2. AKHVLEDIANI, David IMM-3151-02
3. ALIX, Jacinto IMM-2959-02
4. AL-RAWAHI, Wahida IMM-2960-02
5. ARORA, Sunil Kumar IMM-3037-02
6. ASAI, Hiroshi IMM-3140-02
7. AZARBAEIJANI, Youksel Abak IMM-3152-02
8. BEHBEHANI, Ali IMM-3139-02
9. BHARGAV, Dave IMM-3057-02
10. BUTYRINA, Veronika IMM-3027-02
11. CHEN, Baoguan IMM-2989-02
12. CHEN, Emila Klaudia IMM-3033-02
13. CHEN, Hua IMM-3075-02
14. CHEN, Kerong IMM-2955-02
15. CHEN, Qindi IMM-2978-02
16. CHEN, You IMM-3106-02
17. CHENG, Jun IMM-3049-02
18. HEYDADABHAI, Mohamed IMM-3045-02
19 DENG, Xiao Ling IMM-2947-02
20 DESAI, Malay P. IMM-3029-02
21. FENG, Ping IMM-2941-02
22. FIROUZ, Farshad Jarrahi IMM-3171-02
23. GALVEZ, Gael IMM-3034-02
24. GIZATTULIN, Rustam IMM-3117-02
25. GUNAWAN, Arief B. IMM-3039-02
26. GUPTA, Vanita IMM-3027-02
27. HE, Yi Bing IMM-3054-02
28. HENDRAWAN, W. IMM-3035-02
29. HEYDARIKHABAZ, Alireza IMM-3179-02
30. IIZAWA, Kaori IMM-3177-02
31. JAYA, Dwi IMM-3015-02
32. KAMYABEE, Leah IMM-3090-02
33. KAYADARMA, Mardi Emmanuel IMM-3044-02
34. KEIVAN, Katayoun IMM-3167-02
35. KHOE, Houw Kok IMM-3076-02
36. KIM, Hak Soo IMM-3190-02
37. KIM, Hwi Joo IMM-3181-02
38. KIM, Jung Hwan IMM-3154-02
39. KO, Hui Lin IMM-2944-02
40. KUBOTA, Yuko IMM-3188-02
41. KURATA, Maki IMM-3189-02
42. LEE, Shih Wei IMM-2943-02
43. LIM, Choo Meng IMM-3095-02
44. LIN, Changyan IMM-3011-02
45. LIU, A Lin IMM-2946-02
46. MA, Xiang Jun IMM-3042-02
47. MAJUMDAR, Anup IMM-3077-02
48. MANTOFANI, Maria IMM-3064-02
49. MOMENGHALIBAF, Kia IMM-3170-02
50. MORI, Kazuhide IMM-3191-02
51. NARENDRA, Khamesera IMM-3062-02
52. NIKOEI, Mehdi IMM-3121-02
53. NOROOZI, Farhad IMM-2968-02
54. NUH, Jacob IMM-3061-02
55. OMIDI, Golnoush Jamal IMM-3163-02
56. PARMAR, Shreyashk IMM-3050-02
57. PATEL, Devesh Chimanlal IMM-3073-02
58. PATEL, Hemantkumar IMM-3059-02
59. PATEL, Hitesh Arvin IMM-2984-02
60. PATEL, Hiteshkumar IMM-3063-02
61. PATEL, Kanubhai IMM-2983-02
62. PATEL, Kinjalkumar IMM-2985-02
63. PATEL, Manish P. IMM-3030-02
64. PATEL, Rajendrakumrar K. IMM-3074-02
65. PATEL, Shital IMM-3069-02
66. PATEL, Vikas IMM-2986-02
67. PEGETA, Yaroslava IMM-3120-02
68. PRANJOTO, Sharon IMM-3016-02
69. PROTSYK, Ivan IMM-2979-02
70. PYRCZ, Roman IMM-3183-02
71. SADOUGHI, Maryam IMM-3174-02
72. SHAFIEIAZAD, Foroughazam IMM-3158-02
73. SHAH, Tejas IMM-3066-02
74. SHAMASEBLOO, Shaghayegh IMM-3161-02
75. SHEGNAGAEV, Valeri IMM-3111-02
76. SHIROMA, Ryo IMM-3180-02
77. SIMANJENKOV, Vassili IMM-3079-02
78. SINOJIA, Nitinkumar IMM-3040-02
79. SITCHOUK, Petro IMM-3098-02
80. SONG, Dequang IMM-3014-02
81. SONG, Yun IMM-3056-02
82. SOUCHKOVA, Larissa IMM-2974-02
83. SURI, Manav IMM-3060-02
84. SURJANTO, Lemuel IMM-3072-02
85. TAHMASBI, Reza IMM-3087-02
86. TANDEL, P. IMM-3067-02
87. TANG, Chun-Tat IMM-2963-02
88. TASAKI, Jitsuya IMM-3184-02
89. VAHABI, Ali Pour IMM-3169-02
90. WAN, Lihua IMM-3022-02
91. WANG, Jianping IMM-3021-02
92. WANG, Jinbo IMM-3083-02
93. WANG, Tao IMM-2940-02
94. WANG, Wenquan IMM-3080-02
95. WANG, Yi IMM-3053-02
96. WEI, Yun Yi IMM-3068-02
97. YANG, Lu Ning IMM-3185-02
98. ZARE, Hamid Reza IMM-3157-02
99. ZARYAN, Flora IMM-3159-02
100. ZHANG, Dan Mu IMM-3186-02
101. ZHANG, Jianbo IMM-3046-02
102. ZHAO, Jianzhong IMM-3018-02
SCHEDULE B
ANNEXE B
Applications submitted after January 1, 2002, but prior to June 28, 2002
1. CHARMCHI, Fahimeh IMM-3173-02
2. CHEN, Xueya IMM-3078-02
3. DE SILVA, Henda Hewa Prema
Ravindra IMM-3089-02
4. DRAGAN, Laurentiu IMM-3020-02
5. EYIBAS, Ersin IMM-3155-02
6. IMANI, Mohammad IMM-3160-02
7. JASPER, Steve IMM-3108-02
8. KAMEL, Fahmy Elia IMM-3118-02
9. KARPOV, Alexandr IMM-3110-02
10. LIMA, Isabela IMM-3156-02
11. LIN, Meiyu IMM-3097-02
12. LIRAVI, Fazlollah Amir IMM-3168-02
13. MOVAGHAR, Saeid Khosravi IMM-3166-02
14. NAHIN, Siarhei IMM-3164-02
| 15. PANG, Bo IMM-2966-02 |
16. PETRASHKO, Ihor IMM-3116-02
17. SEYF, Amirmohammad IMM-3172-02
18. SEYF, Maryam IMM-3165-02
19. SHAHRASBI, Mersedeh IMM-3103-02
20. SURUDZHIYSKA, Krasimira
Stefanova IMM-3104-02
21. TAVAHODI, Mana IMM-3084-02
22. ZAND, Ghasem IMM-3162-02