noon
Hero Member
- Mar 9, 2012
- 5
- Category........
- Visa Office......
- New Delhi
- NOC Code......
- 3113
- Job Offer........
- Pre-Assessed..
- App. Filed.......
- 28-07-2004
- Doc's Request.
- 11-10-2008
- Nomination.....
- NA
- AOR Received.
- 28-07-2004
- IELTS Request
- november 2006
- File Transfer...
- NA
- Interview........
- I think it is waived
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
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
