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LATEST CAIPS NOTE UPDATE FOR PRE JUNE 2008 WHOSE FILE GOT REJECTED BY LAW

kau_shik_patel

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Some excerpts from the letter send to the Canadian Government by National Immigration Law Section of the Canadian Bar Association on may 2012 before the implementation of sec 87.4 of the bill C-38(Jobs Growth and Long term prosperity act)


We recognize the importance of ensuring that Canada's immigration system responds to our changing labour market needs. But the backlog reduction in Bill C-38 far overreaches its stated objective and fails to meet principles of accountability and transparency.

Closing pre-2008 FSW files means changing the rules mid-stream. This will harm Canada's reputation and integrity in the immigration field, undermining public confidence, and operating counter to Canada's economic interests.

While the government intends to reimburse application fees, the bill absolves the government from liability for other costs and damages − be it language training and other studies, legal fees, other costs associated with preparing to immigrate to another country, or the difficult-to-quantify cost of lost opportunities for those who could have applied through other programs or to other countries. If Bill C-38 becomes law, complaints may arise under the Federal Accountability Act 8 and to the Office of the Public Sector Integrity Commissioner of Canada for potential gross mismanagement inC. Rule of Law .A fundamental cornerstone of Canadian law is the Rule of Law.

The expectation of the FSW applicants affected by C-38 was that their applications would be processed if filed in accordance with sections 10 and 11 of the Immigration and Refugee Protection Regulations, paid for in accordance with section 294, and not returned pursuant to section 12.
There is no legal authority or precedent in Canadian law for the government to refuse to process completed applications. There was no notice at the time of filing that the applications might be returned unprocessed.

While those who applied prior to 27 February 2008 had no guarantee that their application would result in a positive decision, they had a reasonable expectation that it would be considered on its merits and would likely be successful if they achieved 67 points.

The proposed changes constitute an “unusual or unexpected use of the authority conferred on the Minister”, contrary to s.3 (2)(b) of the Statutory Instruments Act.

In Dragan, a class of 124 applicants who had applied for permanent residence prior to the enactment of the IRPA sought a writ of mandamus to compel the Minister to assess their applications under the criteria in the previous legislation. The Court granted mandamus for 102 applicants, ordering the Minister to assess those applications by 31 March 2003 in accordance with the former legislation. The Court found the government neglected to make best efforts to assess the applications before 31 March 2003 and had violated the legislative intent of IRPA – specifically the “prompt processing” objective in s. 3(1)(f) – because no special effort had been made to process the backlog at visa posts with significant inventory.

The same might be said of the pre-2008 FSW backlog. Although reduced from estimated highs in 2008 of 800,000 applicants, the Minister has opted to process post-2008 applications at a much higher rate than the pre-2008 cases.

Mandamus is currently being pursued by some of the 300,000 applicants who will be impacted by Bill C-38. Aside from the and the cost to taxpayercould plunge the immigration system into a worse position with respect to its backlog, similar to what occurred after Dragan in 2003.

New Zealand Experience
Canada can learn from the experience of New Zealand, where the government attempted to retroactively change immigration eligibility criteria in the “General Skills” and “Long Term Business Visa” categories. These changes were challenged at the Auckland High Court in New Zealand Association for Migration and Investments (NZAMI) v. Attorney General17. NZAMI argued that the retrospective application of stricter rules contravened the affected applicants' legitimate expectations. The court accepted this argument, and struck down the impugned law
 

kau_shik_patel

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Latest Entry in IMM-7502-11

Letter from Applicant dated 06-DEC-2012 requesting that the Court directs the Respondent to circulate all correspondence between any party regarding terms of involvement at the upcoming JR hearing. (with attachments) (Letter was also sent to all involved counsel in the case management group) received on 06-DEC-2012
 

kau_shik_patel

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Latest Entry in IMM-7502-11

Communication to the Court from the Registry dated 06-DEC-2012 re: A's letter of 06-DEC sent to court for directions.
 

kau_shik_patel

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Hi friends,
CIC changes wordings about selection criteria in their new website. Read carefully

http://www.cic.gc.ca/english/department/media/notices/notice-returns.asp

(*A “FSW program selection criteria” decision means that a CIC officer has determined that you have accumulated enough points to qualify for the program, based on factors such as your language skills, education and work experience.)
 

kau_shik_patel

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Good Day,


On Monday afternoon, all counsel involved in the FSW litigation are scheduled to meet with Justice Rennie, who presided over the June hearing and was selected to preside over the January 14th-16th hearing. At this point there are at least nine groups. (A tenth which is exclusively for those assessed after March 29th, requested on November 29th to be included.) On Tuesday morning, we will have a tele-conference with Justice Barnes, the managing judge. No agenda has been provided. I will let you know the results of both conferences -- most likely on Tuesday afternoon (Toronto time).


Regards,


Tim
 

kau_shik_patel

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Latest Entry in IMM-7502-11

Oral directions of the Court: The Honourable Mr. Justice Barnes dated 06-DEC-2012 directing that a teleconference be scheduled for 11-DEC-2012 at 4:00PM to discuss recent correspondence with all counsel. received on 06-DEC-2012.
 

kau_shik_patel

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Latest Entry in IMM-7502-11

Letter from RESPONDENT, DOJ TO THE COURT AND APPLICANT dated 06-DEC-2012 PLEASE PLACE LETTER BEFORE COURT IN ADVANCE OF PHC ON DEC 10/12; SEEKING CLARITY. received on 07-DEC-2012
 

kau_shik_patel

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Latest Entry in IMM-8747-12

Applicant's Further Affidavit with indication of service upon Respondent on 07-DEC-2012 filed on 07-DEC-2012.
 

kau_shik_patel

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Latest Entry in IMM-IMM-8747-12

Covering letter from Applicant-Mr Waldman dated 07-DEC-2012 concerning Doc. No. 29 with proof of service upon Respondent on 07-DEC-2012 placed on file on 07-DEC-2012
 

kau_shik_patel

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Latest Entry in IMM-6165-12

Affidavit of Xiao Ming Zheng on behalf of the applicant sworn on 04-DEC-2012 in support of Doc #1 app for leave filed on 05-DEC-2012 with proof of service on the respondent
 

kau_shik_patel

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Holy Backlog Backstab!
BY EDAR 'CINNIKULL' AIHIL
SHARE ON TWITTER_FOLLOW_NATIVE SHARE ON EMAIL MORE SHARING SERVICES
How immigration department's incompetence will simply trash 284,000 skilled worker applications just because CIC can't handle the workload!
Citizenship & Immigration Canada, thanks to our hardworking, tireless Mr Jason Kenney — the right(eous) honourable conservative Minister of Citizenship & Immigration — has decided that since they cannot handle so many applications for immigration, they will just throw away those applications!

There, you fixed your backlog... Bravo Minister!



That means that 284,000 potential immigrants, out of no fault of their own, will find their pre 27-02-2008 applications rejected without even getting a chance for their applications to be reviewed!

It's like you've paid for a particular service (application review), but after years of waiting, and expecting, just to be reviewed — let alone being accepted as immigrant — you're told that the people reviewing your application are just too slow, lazy and incompetent, so... sorry, here's your money back. Now move along, nothing to see here!

Holy class-action lawsuits galore, Batman!

And to think that by simply paying back these hundreds of thousands of applicants, the CIC would just start afresh? Do they not realize that an entire army of lawyers must be rubbing their palms in glee?

By returning $130 million fees that it took from immigration applicants, the ministry is simply acknowledging a simple truth: they took the money for providing a service they arbitrarily decided not to perform out of sheer work-pressure!

Is this how a so-called professional government organization (a contradiction in terms, I realize) is run?

Can't handle the workload? Shove it!

Behind the smokescreen of ‘changing' labour market conditions (as if it stops changing just because there are new federal rules!), the immigration department is setting a very dangerous precedent.

Which is, that Canadian policies are not to be trusted, because if there's too much work, we'll simply change the policies.

And who cares about the applicants anyway

Oh yeah, and not to forget the applicants, whose dreams and aspirations were shattered by a callous, self-righteous and lazy administration.

Who cares about those dirty buggers, those filthy punters lining up ‘our' shores, taking ‘our jobs' away, anyway, eh?

Yeehaw!
 

kau_shik_patel

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Dear friends:
While the cases have already been filed the following may be the grounds on the basis of which various Lawyers filed our applications for judicial review:
1. The applicant submitted an application for permanent residence in Canada including payment of the requisite processing fee, before Feb. 2008.
2. The applicant filed the application together with the appropriate filling fee required by law and believed upon payment that a contractual right had been established to have the application heard and processed which can be expressed as a legal legitimate expectation that this process will take place in accordance with IRPA and its regulations together with the objectives of IRPA. As such the applicant had a vested right and it would be unreasonable to confiscate arbitrarily this right and thus the applicant continues to have a right to be processed.
3. The rule of law is a fundamental principle of the constitution which has been indirectly derived from Magna Carta 1215. The rule of the law protects individuals from arbitrary state action which lacks reasonability. There is a presumption against the retroactivity of statutes. A statute will not be proceeded retroactively unless it states so explicitly and is not capable of any other interpretation. section 87.4 of IRPA is not sufficiently clear to be applied retrospectively.
4. Section 87.4 (1) of IRPA infringes section 15(1) of the Canadian Charter of Rights And Freedom and the infringement of under subsection 15(1) of the charter is not saved by section 1; the infringement is not a reasonable limit prescribed in law and is therefore of no force and effect.
5. The provisions of section 87.4must be interpreted in a manner consistent with all the provisions of IRPA. Section 25(1) of the IRPA provides an applicant may seek exemption from any of the provisions of IRPA section 25 (1) applies to all the provisions of IRPA and there is nothing in the language of section 87.4 IRPA to exempt it from the application of section 25(1), the applicant has a right to seek an exemption from the application of 87.4 on humanitarian and compassionate grounds prior to an officer applying 87.4 to the applicant’s application
6. In the alternative the language of section 87.4(1) of IRPA is vague and leads to uncertainty.
7. That while it may be permissible to foreclose a right of recourse if applications are terminated by clear operation of law, given the discretion involved in determining the applicability of sub section 87.4(1) of IRPA it is unlawful not to allow that discretion to be reviewed by the court in a meaningful way.
8. Section 87.4(2) leads to unjust enrichment contrary to The Financial Administration Act. with the applications terminated particularly after delays caused by the The Minister of Citizenship and Immigration Canada the enrichment becomes unjust and unlawful.
9. The delay in processing the application is not attributable to the applicant.
10. The minister is under duty to render a decision.
11. The decision was unlawfully made, in that the tribunal ignored relevant evidence, misconstrued the evidence before it and breached the principles of Fundamental and Natural Justice.
12. The tribunal erred in law in that it misconstrued the facts before it.
13. The tribunal erred in law in that it unduly fettered its discretion in the manner in which it conducted the termination.
14. The applicant has a legitimate expectation that filed application be processed in accordance with the policy manual.
15. Such further and other grounds as counsel may advise and Hon'ble court permits.

I hope we have made up a very strong case and let us pray that victory is achieved at the earliest.
 

kau_shik_patel

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Now while it is going to be a managed case I suggest all those friends who do not want to get deleted to be a part of the litigation as soon as possible and certainly before 8 Jan 2012 because may be and I also wish that the non litigants also get the relief but the chances are that only the litigants will prevail so please be aware.
 

kau_shik_patel

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Nov 10, 2012
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Doc's Request.
13-04-2016
Nomination.....
25-04-2016
AOR Received.
20-07-2016
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Already Submitted
File Transfer...
19-08-2016
Med's Request
16-12-2016
Med's Done....
28-12-2016
Interview........
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14-03-2017
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00-00-2017
LANDED..........
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CIC has started to triggers litigants file and started to separate all litigants files from backlog applicants...to freeze the no of litigants in coming hearing 14-JAN-2013.
 

noon

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I think it is waived
kau_shik_patel said:
CIC has started to triggers litigants file and started to separate all litigants files from backlog applicants...to freeze the no of litigants in coming hearing 14-JAN-2013.
What a great news !!!! Visa officers dusting out 4 year old dust from all applications .