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Federal Skilled Worker Class Action Lawsuit

Dramebaaz

Full Member
Apr 17, 2013
29
4
Dear PMM,

Hi!

I have applied as FSW in January 2008. You are a very intelligent and informed person on this blog and I hope you can best guide me.

I want to know about the status and scope of pre-February 2008 FSW backlog litigation. There are many individual groups going on separately.

I have come to know that there is an appeal under process in Fedral Court of Appeal. Will the decision of the appeal be applicable to the litigants only or it will apply to all the applicants in the backlog who applied before 27 February 2008. Is there really any Class Action suit applicable to all the affected applicants; whether they are litigants or not?

What should the applicants like me (who are in the backlog and have applied before 27 February 2008) do now if they have not participated in any litigation till today and are in wait and watch mode and are hoping inspite of all the proceedings going against their hope? Is there any hope at all for them; howsoever small, or no hope at all now?

Please give your sincere advice.

Thanks and Regards!
 

PMM

VIP Member
Jun 30, 2005
25,494
1,950
Hi


Dramebaaz said:
Dear PMM,

Hi!

I have applied as FSW in January 2008. You are a very intelligent and informed person on this blog and I hope you can best guide me.

I want to know about the status and scope of pre-February 2008 FSW backlog litigation. There are many individual groups going on separately.

I have come to know that there is an appeal under process in Fedral Court of Appeal. Will the decision of the appeal be applicable to the litigants only or it will apply to all the applicants in the backlog who applied before 27 February 2008. Is there really any Class Action suit applicable to all the affected applicants; whether they are litigants or not?

What should the applicants like me (who are in the backlog and have applied before 27 February 2008) do now if they have not participated in any litigation till today and are in wait and watch mode and are hoping inspite of all the proceedings going against their hope? Is there any hope at all for them; howsoever small, or no hope at all now?

Please give your sincere advice.

Thanks and Regards!
1. The Federal Court has ruled that is legal for Citizenship & Immigration to "cancel" the applications. A number lawyers have applied to the Federal Court of Appeal on that ruling for various classes, depending on the date their FSW application was filed.
2. If the Federal Court rules the CIC's action was legal, then it ends. If the FCA rules that was legal for some classes of applications, then all those applications where it was deemed illegal to cancel might have their applications processed, whether they were members of the class action or not. Note that CIC could appeal any adverse ruling, they could go back and re-write the legislation to comply with the FCA ruling. No one will know until the FCA issues it's ruling.
3. If the FCA rules in CIC's favour, then it is all over, if not, then it could go on for years yet.
 

delhi

Full Member
Jan 11, 2013
20
0
hopefulever said:
Judge directive may not come before june 2014 as mentioned on unfaircic.com.
Hi Hopefulever,
You mean till June 2014, nothing will happen to our case. Tim mentioned in his mail that DoJ has offered to consent to having IMM-1-13 heard before a judge in May. Is this a final hearing date or Judge will start hearing our case in May or June. Please reply
 

Dramebaaz

Full Member
Apr 17, 2013
29
4
PMM said:
Hi


1. The Federal Court has ruled that is legal for Citizenship & Immigration to "cancel" the applications. A number lawyers have applied to the Federal Court of Appeal on that ruling for various classes, depending on the date their FSW application was filed.
2. If the Federal Court rules the CIC's action was legal, then it ends. If the FCA rules that was legal for some classes of applications, then all those applications where it was deemed illegal to cancel might have their applications processed, whether they were members of the class action or not. Note that CIC could appeal any adverse ruling, they could go back and re-write the legislation to comply with the FCA ruling. No one will know until the FCA issues it's ruling.
3. If the FCA rules in CIC's favour, then it is all over, if not, then it could go on for years yet.
Thanks for your kind response!

This means we have to wait and watch whether we are litigants or not. If FCA rules against CIC's decision to terminate unaccessed pre-Feb backlog applicants; then CIC will again start processing those cases according to the law or rules at the time of their application or CIC will again go against FCA to appeal in a higher court or go back and re-write the legislation to comply with FCA ruling as it has done before.

It was decided in court of Rennie first that CIC is obliged to process each and every case it has accepted and taken into the system according to the rules or law which was in force at that time of application. Then CIC and government changed the law in budget introducing a clause 87.4(1) to terminate all the cases not accessed before 29 March 2012. So, Rennie changed his decision in the next hearing because CIC's decision to terminate was in accordance with 87.4(1) and therefore deemed legal.

This means CIC and Government can change law according to their convenience and there is no law or court above them!
 

hopefulever

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Feb 11, 2012
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I think you are missing on one important point of law. there were some litigants who already challeneged and one in rennie court before cic could decide the date of march 2012.what about these litigants who challenged before 29th march 2012.It is an important isue before the FCA.
 

Dramebaaz

Full Member
Apr 17, 2013
29
4
hopefulever said:
I think you are missing on one important point of law. there were some litigants who already challeneged and one in rennie court before cic could decide the date of march 2012.what about these litigants who challenged before 29th march 2012.It is an important isue before the FCA.
You are all right; but what I want to say is that litigants and non-litigants both are applicants. If the government or CIC or both plan to terminate any applicant (whether he is litigant or not) it should be after accessing and processing only. Terminating any applicant without accessing and processing is wrong as per CIC's older ministerial instructions as applicable to pre-Feb 2008 cases.

This report presents the findings of the implementation evaluation of the first set of Ministerial Instructions (MI), which were issued on November 2008 on the basis of a legislative amendment made to the Immigration and Refugee Protection Act (IRPA) earlier that year.

1.2.1 Ministerial Instructions (MI)

The federal government elected to respond to the backlog issue by introducing amendments to the Immigration and Refugee Protection Act (IRPA), through Bill C-50 (the Budget Implementation Act), Bill C-50, which came into effect on February 27, 2008 and made a number of fundamental changes to the way in which most immigration applications [Note 5] and requests were managed: it eliminated the (previous) obligation to process all applications received; and authorized the Minister to issue instructions (Ministerial Instructions) to immigration officers regarding which applications were eligible for processing, based on the government's overall goals for immigration. Under these “MI authorities,” the Minister had the power to limit the numbers of applications processed, accelerate some applications or groups of applications, and return applications without processing them to a final decision.

•The following ministerial instructions are directed to CIC's visa officers and identify the immigration applications and requests that will be given priority processing.
•The instructions come into force on their date of publication in the Canada Gazette.

•The instructions apply only to applications and requests made on or after February 27, 2008.
•All applications and requests made prior to February 27, 2008, shall be processed in the manner existing at the time of application.

•The instructions comply with the Canadian Charter of Rights and Freedoms and support the economic, family reunification and refugee protection goals of the Immigration and Refugee Protection Act.
•The instructions do not apply to refugees or protected persons or persons making a request on humanitarian or compassionate grounds from within Canada.
•The instructions respect all previously established accords and agreements, including the Canada-Quebec Accord, and all agreements with the provinces and territories.
•Any categories for which instructions are not specifically issued shall be processed in the usual manner.


CIC was obliged to access and process pre-February 2008 applicants when Bill C-50 was enacted on 27 February 2008. It's obligation to access and process each and every case was abolished only for applications to be received on or after 27 February 2008 in that Bill C-50. It was not meant to be applicable retroactively. Therefore, framing Bill C-38 Section 87.4(1) is contradictory to Bill C-50 instructions as it has been made for the convenience of CIC to terminate the pre-February 2008 applicants.

It would have been better if they would have terminated all the previous cases at that time on 27 February 2008. Then all the people would have saved these 5 years, time, money, and mental peace and many would have reapplied according to the new rules at that time and would have reached Canada or they would have been free do anything else. CIC must have intended it at that time but due to legal restrictions, it could not do that. But the minister and CIC kept on inventing the ways and now when the people started litigation due to long delay, it took as personal prestige issue and terminated the backlog by introducing new clause in the Bill C-38.

Appicants who applied after 27 February 2008 can be segregated according to 29 March 2012 whether the decision was made or not; but pre-February 2008 applicants should not be terminated. So, Bill C-38 Section 87.4(1) should be abolished as it has been made with malicious intent to get rid of the backlog and to shirk the responsibility to process those cases. Though it was passed in the parliament, it is illegal and at least unfair and inhuman for the innocent applicants.
 

st-cnncomes

Star Member
Dec 5, 2012
86
4
CIC can only terminate applications of refugee applications and on humanitarian grounds. Under no circumstances what so ever can they get away terminating applications of FSW.

It is the best joke I've ever heard, CIC wiping out its debt through legislation. I wish I could do the same, and wipe out EMIs loans etc. CIC should get it into their thick skulls that processing or not processing our files is not a choice but an obligation.
 

Dramebaaz

Full Member
Apr 17, 2013
29
4
st-cnncomes said:
CIC can only terminate applications of refugee applications and on humanitarian grounds. Under no circumstances what so ever can they get away terminating applications of FSW.

It is the best joke I've ever heard, CIC wiping out its debt through legislation. I wish I could do the same, and wipe out EMIs loans etc. CIC should get it into their thick skulls that processing or not processing our files is not a choice but an obligation.
But if you see ministerial instructions (MI), it is evident that they apply to FSW who applied or will apply on or after 27 February 2008 and do not apply to refugees' applications or applications on humanitarian ground applied from within Canada!

CIC can process post Bill C-50 applications in any desired order, prefer some and ignore others or terminate them if they applied on or after 27 February 2008 according to instructions in Bill C-50. This was done to abolish first cum first serve order and also to give the immigration minister and CIC more powers in future.

But those powers were not allowed to be applicable to pre C-50 cases who applied before 27 February 2008. Otherwise, pre-27 February applicants would have started litigation at that time only and it would have become problematic for the CIC to get those powers in future also!

Future applicants were free to think to apply or not after knowing about those instructions at their own risk or at their will. They were given the promise that their applications will be processed within stipulated time otherwise their money will be refunded and the applications will be terminated. They were given the right to withdraw their application even after the processing has started and with full refund.

But the pre-27 February 2008 applicants were now allowed to withdraw with full refund if processing had already been started! Now CAS is showing your file "in process" and you cannot withdraw and also you are not allowed any inquiry till the time shown on their website is crossed which keeps on changing! Applicants must be thinking that their application has been assessed on the points grid and the processing has started!

The instructions must respect all previously established accords and agreements, including the Canada-Quebec Accord, and all agreements with the provinces and territories. But instructions in 87.4(1)a IRPA of Bill C-38 fail to do so! They do not respect all the previously established accords and agreements at all! CIC must comply with and respect all the previously established accords and agreements while making new laws!

So, 87.4(1)a IRPA of Bill C-38 is illegal and must be struck off! Federal Court of Appeal should do it with dignity!

Can Canadian courts and DOJ see through all this and do the right thing and enforce the minster or CIC to do the right thing!

Let us see what happens in future! Hope for the best!
 

hopefulever

Hero Member
Feb 11, 2012
327
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Nov 2008
ear Litigant,

Yesterday afternoon, DoJ counsel and I discussed the two cases. They believe that they will have a decision from CIC's litigation unit before the end of the month. If it is positive, we will prepare a joint position to Justice Barnes for the second lead case. The same position will be expressed for the first lead case except that it may not be Justice Barnes who will be setting the hearing date.

Owing to the delay from the other side, June is a more likely target for the hearing than is May because the hearing date is usually exactly 90 days after release of the order allowing the matter to go forward.

I provided DoJ with the lists they wanted of the litigants. They will check it with their own list and with the Court's. Thus, it is not final. Moreover, until we reach an agreement, I would expect that they will agree to include others (so long as the number is not too high).

Although the basic division is pre- and post- Liang; i.e., before and after 18 June 2012, there are two-subgroups. The four lists are:
1. unassessed pre-Liang files,
2. unassessed post-Liang files,
3. files assessed before 29 March 2012 and
4. files assessed after 28 March 2012.

I doubt that I will be sending out any updates until DoJ reverts. Should any lack the patients to wait for an update, please do not expect me to reply. When there is nothing to say, I say nothing.

Regards,

Tim
 

zardoz

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Feb 2, 2013
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hopefulever said:
I doubt that I will be sending out any updates until DoJ reverts. Should any lack the patients to wait for an update, please do not expect me to reply. When there is nothing to say, I say nothing.
Did he really say "patients", instead of "patience"? :eek:
 

rameel

Full Member
Aug 6, 2009
25
0
Hello friends need ur help recently I got refusal letter from cic based on misunderstanding. I did try my best to clear my stance but a famous saying first impression is the last specially for cic people they have imposed A40(2)a on me. Please guide whether I can appeal or not in case yes then to whom I will write my appeal and under which section with complete address further my processing office is London, UK.
 

PMM

VIP Member
Jun 30, 2005
25,494
1,950
Hi


rameel said:
Hello friends need ur help recently I got refusal letter from cic based on misunderstanding. I did try my best to clear my stance but a famous saying first impression is the last specially for cic people they have imposed A40(2)a on me. Please guide whether I can appeal or not in case yes then to whom I will write my appeal and under which section with complete address further my processing office is London, UK.
1. No appeal except for leave to appeal to the Federal Court. 2 year ban on applications.
 

Dramebaaz

Full Member
Apr 17, 2013
29
4
According to MI or Ministerial Instructions in Bill C-50, CIC can process "post Bill C-50 applications" in any desired order, prefer and process faster some applications and ignore or delay others or terminate them without processing with refund of their money if they "applied on or after 27 February 2008." This was done to abolish first cum first serve order and also to give the immigration minister and CIC more powers in future so that further backlog is prevented and the persons with the skills needed in Canada in future are processed faster. But this was not done to get rid of pre Bill C-50 FSW backlog cases. Both were to be processed simultaneously side by side!

But those powers were not allowed to be applicable to pre C-50 cases who applied before 27 February 2008. CIC was not expected to delay those cases and was not permitted to terminate those cases under any condition at all! So, they were promised that their applications will be processed as per rules or instructions applicable at the time of their applications and they will be processed till final decision for sure! Otherwise, pre-27 February applicants would have started litigation at that time only and it would have become problematic for the CIC to get those powers in future also! CIC also agreed to all those condtitions at that time to avoid any litigation! But then it started processing new cases only and totally ignoring the pre-February 2008 cases!

Also, it was written in MI that the instructions must respect all previously established accords and agreements, including the Canada-Quebec Accord, and all agreements with the provinces and territories. This means it must be according to Canadian laws that previously established accords and aggrements cannot be breached. But instructions in 87.4(1)a IRPA of Bill C-38 fail to do so and clearly breach the previously established accords and aggrements with the pre C-50 applicants who applied before 27 February 2008!

That means it does not respect the previously established accords and agreements with them at all! Rather it was passed with intention or malicious intention to breech those previously established accords and agreements! Thus, it becomes illegal! It must be made mandatory that CIC must be made to comply with and respect all the previously established accords and agreements while making new laws! If it does not do so, that new law must be struck down with immediate effect!


So, 87.4(1)a IRPA of Bill C-38 is illegal and must be struck down! Federal Court of Appeal should do it with dignity!

All the lawyers of the various litigation groups or appeal should stress this in future court hearings!

Dear seniors, "What is your sincere opinion?"

Please do share your views and forward your message to the lawyers, judges, and ministers for the sake of affected applicants and litigants!
 

zardoz

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My "sincere opinion" is that CIC will win all cases, even if they have to appeal. If necessary, they will get the legislation changed again so that they can win eventually.
 

Wassimdb

Newbie
May 1, 2011
1
0
anybody have an idea how to apply for canadian skilled worker ? I'm a dental technician married and have 3 year old kid and wish to immigrate to canada , assist me plz