Federal Court

Administrative Law

Application to compel processing of permanent residence applications under federal skilled workers class was dismissed

Applicants’ applications for permanent residence under foreign skilled workers (FSW) class were terminated by s. 87.4 of Immigration and Refugee Protection Act (Can.), which eliminated backlog of FSW applications by cancelling those made prior to specified date where no selection decision was made before set date. Protocol was prepared under lead case to promote expediency and better organize litigation. Applicants brought application to compel respondent to process applicants’ permanent residence applications under FSW class. Application dismissed. There was no basis on which court could order mandamus based on Protocol alone. Applicants had no vested rights to enforce. Protocol clearly contemplated that disposition of their applicants might not be possible. Protocol said nothing specific about what was to happen if law applicable to applicants’ FSW applications changed before they could be dealt with. Undertaking to be “guided by” decisions in representative cases did not include promise to process applications even if they were validly terminated by Parliament. Section 87.4(2) did not exempt applicants from s. 87.4(1). Applications were terminated by operation of law and court could not order mandamus. Protocol was not final determination of application and it contemplated possible disposition of remaining cases. There was nothing to suggest that Bill C-38 or Jobs, Growth and Long-term Prosperity Act (Can.) were not enacted in accordance with normal legislative procedures and safeguards. Doctrine of legitimate expectations did not arise. Language of s. 87.4 clearly displaced any legitimate expectation that applications would be processed to completion. Protocol contemplated that it might not be possible to process applications to completion. Public policy considerations were not humanitarian and compassionate considerations and court was in no position to second guess or order minister to do anything on basis of public policy. Applicants’ arguments with respect to breach of constitutional rights were already dealt with. Applicants’ constitutional and judicial independence arguments were masking their real arguments, which were that, in deciding these mandamus applications, court was to ignore impact of s. 87.4. Much of what applicants alleged as abuse of process was no more than assertion that protocol should prevail over s. 87.4, humanitarian and compassionate factors should have been applied to avoid impact of s. 87.4 in their FSW applications, and that overall result was simply unfair to them.

Gong v. Canada (Minister of Citizenship and Immigration) (Feb. 29, 2016, F.C., James Russell J., IMM-6828-12, IMM-1-13) 264 A.C.W.S. (3d) 471.

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