Date: 20150106

Docket: IMM-3613-13

Citation: 2015 FC 13

Toronto, Ontario, January 6, 2015

PRESENT:    The Honourable Mr. Justice Diner

BETWEEN:

JULIE EGBUFOR EBI

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I.                   Overview

[1]               This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], of the decision of an Immigration Officer [the Officer] refusing the Applicant’s request for a substituted evaluation, and consequently, her application for permanent residence in Canada under the Federal Skilled Worker [FSW] class.

II.                Facts

[2]               Julie Egbufor Ebi [the Applicant] applied for a permanent resident visa under the FSW class in May 2006.

[3]               On January 14, 2009, Citizenship and Immigration Canada [CIC, the Department] sent the Applicant a letter, advising that she did not meet the requirements of section 11 of IRPA and section 10 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] because she had not provided the Canadian National Occupation Classification codes for her work experience. CIC requested that she complete the relevant schedule and return it to CIC within 60 days.

[4]               On May 13, 2009 CIC advised the Applicant that since it had not received the requested information from her, the requirements of section 10 of the Regulations were not met, and her file had been closed. Both the January and May letters cited paragraph 10(1)(c) of the Regulations which state that an application under the Regulations shall include all information and documents required by the Regulations, as well as any other evidence required by IRPA.

[5]               The Applicant’s counsel wrote to CIC, advising that neither he nor his client had received the January 14, 2009 letter requesting documents. He requested that the file be re-opened.

[6]               The Applicant filed an application for leave and judicial review.

[7]               In October 2009, the Applicant and Respondent reached a settlement, by which the Applicant agreed to file a notice of discontinuance in the Federal Court, and the Respondent agreed to set aside the May 13, 2009 decision refusing the Applicant’s application and to have a different visa officer decide her application again. Accordingly, the Applicant filed the notice of discontinuance and her file was re-opened.

[8]               On January 31, 2013, CIC wrote a letter to the Applicant, requesting that she provide certain information and documentation within 60 days, including proof of language proficiency.

[9]               On April 18, 2013, CIC advised the Applicant that she did not meet the minimum number of points required for a permanent resident visa. CIC advised the Applicant that as she had not produced the evidence and documents requested by the officer on January 31, 2013, CIC had assessed her application on the information that was available.

[10]           On May 22, 2013, the Applicant filed an application for leave and judicial review of this decision.

[11]           On August 8, 2013, CIC sent amended reasons to the Applicant. The amended reasons advised that the Applicant’s application for permanent residence was terminated by operation of law following the coming into force of the Jobs Growth and Long-term Prosperity Act on June 29, 2012.

III.             Issues

[12]           This matter raises the following issues:

1.         Does section 87.4 of IRPA operate in this case to terminate the Applicant’s application?

2.         If the Applicant’s application was not terminated by operation of section 87.4 of IRPA, did CIC err in requiring the Applicant to provide IELTS exam results?

IV.             Relevant Provisions

[13]           Section 87.4 of IRPA provides as follows:

87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.

 (2) Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012.

 (3) The fact that an application is terminated under subsection (1) does not constitute a decision not to issue a permanent resident visa.

 (4) Any fees paid to the Minister in respect of the application referred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without interest, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund.

 (5) No person has a right of recourse or indemnity against Her Majesty in connection with an application that is terminated under subsection (1).

[14]           The other relevant provisions of IRPA and the Regulations are attached as Annex A.

V.                Submissions of the Parties

[15]           The Applicant submits that CIC breached a principle of procedural fairness and natural justice when it terminated her FSW application. She submits that as CIC entered into a settlement agreement with the Applicant following its erroneous decision to close her file in 2009, she has a legitimate expectation that CIC will carry out its obligations there under. CIC’s delay of more than 30 months in processing her application thereafter exposed her application to the effects of section 87.4.

[16]           The Applicant further submits that section 87.4 does not apply to her application because the 2009 refusal of her application was a decision in and of itself, and in the alternative because the application was subject to a settlement agreement that it would be re-determined.

[17]           With respect to the April 2013 decision to refuse her application, the Applicant submits that CIC both applied the wrong test in evaluating her application and breached the principles of procedural fairness and natural justice by requiring her to take the IELTS language test, for two reasons: the test was not a requirement when she applied in 2006; and the requirement to take the test only came into force in May 2013.

[18]           Finally, the Applicant alleges that CIC’s action in terminating her application – in the context of the 2009 refusal, the three year delay thereafter, the requirement of an unwarranted English test, and the refusal of the application on the basis that the Applicant submitted her documents 14 days late following a restrictive short period of 60 days – gives rise to a reasonable apprehension of bias.

[19]           The Respondent, on the other hand, submits that the Applicant’s FSW application was validly terminated by operation of law. Section 87.4 of IRPA extinguished any right the Applicant may have had to have her application processed. Section 87.4 has been upheld as valid and constitutional retrospective legislation (Tabingo, 2014 FCA 191). Termination of an application pursuant to section 87.4 is not a decision, and there is no right of recourse or indemnity in connection with a terminated application (IRPA, s 87.4(5); Tabingo v MCI, 2013 FC 377 at paras 18, 23-37, aff’d 2014 FCA 191). While the Applicant may perceive the failure to process her application prior to the termination as unfair, and while it is unfortunate that CIC sent the Applicant correspondence in error in 2013, this is not a basis to circumvent Parliament’s clear intent and law.

[20]           With respect to the Applicant’s argument that the 2009 refusal was in and of itself a decision, the Respondent submits that this argument is without merit, as the basis for the 2009 decision was not a negative selection decision. No selection decision was made before section 87.4 became law.

[21]           Finally, there is no evidence that requiring the Applicant to produce the results of an IELTS English test gave rise to a breach of fairness or a reasonable apprehension of bias. There was never any absolute requirement to submit IELTS exam results. Further, the Applicant did not communicate with CIC to ask for an extension to the 60 day period.

VI.             Standard of Review

[22]           The primary issue in this judicial review is whether either CIC’s decision in 2009 to close the Applicant’s file, or the settlement agreement between CIC and the Applicant, were sufficient to prevent the termination of the Applicant’s visa application by operation of section 87.4 of IRPA. This is primarily an issue of law, and is reviewable on a standard of correctness (Tabingo v MCI, 2014 FCA 191 at para 54; Liu v MCI, 2014 FC 42 at paras 13-14; Kun v MCI, 2014 FC 90 at para 13).

[23]           Procedural fairness is reviewable on a standard of correctness (Khosa v MCI, 2009 SCC 12 at para 43; Mission Institution v Khela, 2014 SCC 24 at para 79; Sidhu v MCI, 2012 FC 515 at para 38).

VII.          Analysis

Does section 87.4 operate to terminate the Applicant’s application?

[24]           On June 29, 2012, the Jobs, Growth and Long-Term Prosperity Act came into force, amending IRPA to include section 87.4. Section 87.4 provides that an FSW application is terminated if it was made before February 27, 2008 and an officer had not, by March 29, 2012, established whether the applicant met the selection criteria and other requirements applicable to that class.

[25]           To review the key points on which this case turns:

1.             The Applicant’s case was closed without any final decision in 2009 (May 13, 2009 letter to Applicant, Certified Tribunal Record [CTR], p 42). 

2.             After the JR was filed in 2009, it was reopened through the settlement offer from the CIC (Applicant’s Record [AR], pp 16-18). 

3.             No Order was issued from the Court. Rather, the Department simply stated that the refusal would be set aside, and the application would be decided again by a different officer.

4.             There were some significant delays thereafter in processing the second application, between 2009 and 2013.

5.             Processing began in earnest on January 31, 2013 once again, with a letter requesting documents, including proof of English proficiency (CTR, pp 12-13).  These test results were never received.

6.             The original refusal letter of April 18, 2013 (based on failing to satisfy the points requirement) was superseded by the August 8, 2013 refusal letter based on the “termination” legislation and operation of the law (CTR, p 1).

[26]           Unfortunately for this Applicant, the legislation had the effect of terminating her application by operation of the law, pursuant to the legislation, and as confirmed by the case law, which is summarized and cited below. 

[27]           In Tabingo v MCI, 2014 FCA 191, the Court of Appeal (and earlier this Court) found section 87.4 to be constitutional, and to apply retrospectively to cancel any entitlement the applicants had to have their applications considered, regardless of any procedural unfairness. Operational Bulletin 442 [OB 442] reflects the Minister’s interpretation of section 87.4: 

A decision as to whether the applicant meets selection criteria was made if, prior to March 29, 2012, at least one of the following actions was taken:

·           a selection decision was entered into the processing system […];

·           the file notes clearly state that the selection criteria have or have not been met, but a selection decision has not yet been entered into the processing system;

·           a negative decision had previously been made, but the file had been re-opened for a redetermination further to an order by a Superior Court (which includes the Federal Court) or a settlement agreement entered into by way of a Court order made prior to March 29, 2012.

(1)               Was a selection decision made?

[28]           The Federal Court decision in Tabingo was useful in interpreting the concept of a final selection decision. In that case, Justice Rennie wrote:

26        The term 'selection criteria' is used elsewhere in the IRPA and Regulations. Section 70 of the Regulations provides that a visa officer shall issue a permanent resident visa if it is established that a foreign national meets various conditions, including the 'selection criteria'. Section 76 of the Regulations is titled 'Selection Criteria' and provides the criteria on which applicants will be assessed. When read in context, as it must, this term is not vague.

27        The phrase 'other requirements applicable to that class' is also familiar to the Regulations. Satisfying such other requirements is a precondition for obtaining permanent residence visas and status in sections 65.1, 70 and 72 of the Regulations. The 'other requirements' would include, for example, the minimum requirements set out in section 75 of the Regulations.

28        It is apparent from the plain reading of the section that only the final decision given by an officer qualifies as a selection decision. When an application is brought forward for processing, applicants are asked to provide updated forms and supporting documents. At this stage staff at the visa office perform an initial paper screening of the file. The file is then forwarded to an officer who decides whether the applicant meets the selection criteria and other requirements applicable to the FSW class. The language of subsection 87.4(1) specifically refers to this decision, as it is the only one made under the IRPA by an officer.

[Emphasis added]

This approach has been supported by the Court since Tabingo: See Yu v MCI, 2014 FC 253, Russell J; Kun v MCI, 2014 FC 90 at paras 32-35.

[29]           Similarly, in Liu v MCI, 2014 FC 42, Justice Phelan dealt with whether a selection decision made before June 29, 2012 was sufficient to prevent termination by subsection 87.4(1):

18        With respect to the Applicant's principal argument that a selection decision was sufficient to meet the statutory requirements to prevent termination of the visa process, I cannot agree.

Section 87.4 is clear that meeting the selection criteria is but one of the requirements to secure a FSW visa. Compliance with all requirements applicable to the FSW class must be met. On the facts those requirements were not met on either March 29, 2012 or June 29, 2012.

[…]

22        There is no gap in the legislation regarding the operation of law between March 29, 2012 and June 29, 2012. If an applicant had complied with all visa requirements before June 29, 2012 and was entitled to a positive decision, that applicant would be governed by the "old" law. For those applicants who had not fully complied with the "old" legislation, any rights accrued to June 29, 2012 would be terminated effective March 29, 2012.

[…]

26        In conclusion, the purpose and intent of the legislation was to expunge as of March 29, 2012 existing rights in pre-February 27, 2008 visa applications unless an applicant had fully complied on that date with the FSW visa requirements. The Applicant did not nor had he complied when s 87.4 came into effect on June 29, 2012. Therefore this judicial review will be dismissed.

[Emphasis added]

[30]           In Shukla v MCI, 2012 FC 1461 at paras 26-28, Justice Russell similarly explained the operation of subsection 87.4(1):

26.       It is common ground that the Applicant's application for permanent residence was made before 27 February 2008.

27.       It is also common ground that it was not "before March 29, 2012... established by an officer, in accordance with the regulations, whether the Applicant meets the selection criteria, and other requirements applicable to" the Federal Skilled Worker Class.

28.       This means that, in accordance with paragraph 87.4(1) of the Act, the Applicant's application for permanent residence in Canada has been terminated by act of Parliament. It also means that, under paragraph 87.4(5) of the Act the Applicant has no right of recourse or indemnity against her Majesty in connection with his terminated application.

[Emphasis added]

[31]           I have carefully reviewed the full record in this matter, and find that there was no indication of a final decision made by the visa office(r) in 2009, or at any time prior to March 29, 2012. The Applicant had not fully complied with all the requirements of the Act at any time prior to March 29, 2012 and was therefore not entitled to a positive decision before that time. Certainly, the original refusal letter reflected this fact, as do the Computer Assisted Immigration Processing (CAIPS) notes. As a final selection decision had neither been made when the file was closed in 2009, nor before the two 2013 refusal letters, I find that a final selection decision had not been made.

(2)               Was a settlement agreement entered into by way of Court order?

[32]           The Applicant’s application would be protected from the effects of the legislation if the Applicant had entered into a settlement agreement by way of a Court order made prior to March 29, 2012: See IRPA, s 87.4(2); OB 442.

[33]           In this case, there was indeed a settlement, but it was agreed to by the Department and the Applicant without a Court order. The parties agreed, between themselves, that the file would continue to be processed in accordance with certain conditions.

[34]           The settlement agreement, therefore, did not meet the exception set out in subsection 87.4(2), which states that the statutory termination “does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012.” For further clarity, OB 442 confirms that even where a settlement has been reached, this exception only applies where the settlement was entered into by way of a Court order:

A decision as to whether the applicant meets selection criteria was made if, prior to March 29, 2012, at least one of the following actions was taken:

[…]

•           a negative decision had previously been made, but the file had been re-opened for a redetermination further to an order by a Superior Court (which includes the Federal Court) or a settlement agreement entered into by way of a Court order made prior to March 29, 2012.

(OB 442) [Emphasis added]

[35]           The statute, we are instructed, is to be read strictly. Just as this Court has supported the approach to the concept of a “final decision” in Tabingo, it has also endorsed Justice Rennie’s approach to the statutory interpretation of section 87.4, where in Kun v MCI, 2014 FC 90, Justice Heneghan wrote:

32        If there is a question of statutory interpretation raised in the case, as to the meaning of subsection 87.4(1), I endorse the approach taken by my colleague Justice Rennie in Tabingo, supra, when he said the following at paragraphs 19 and 20:

19        The modern approach to statutory interpretation is set out by E. A. Driedger in Construction of Statutes (2nd ed. 1983), p 87: '...the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.' As a corollary to this, when the language of the statute is precise and unequivocal, the ordinary meaning of the words plays a dominant role in the interpretive process: Celgene Corp v Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3, para 21.

…

33        Applying these principles, I conclude that the "grammatical and ordinary sense" of the language used in subsection 87.4(1) of the Act demonstrates that the Parliament of Canada introduced a means of terminating applications for permanent resident status in the FSW class that had been received before a specific date, that is February 27, 2008, and had not been decided before another specific date, that is March 29, 2012.

34        This interpretation is consistent with the scheme of the Act; that scheme is to regulate the admission of immigrants and refugees into Canada. This interpretation is also consistent with the objects of the Act, as set out in section 3 of the Act.

35        Finally, this interpretation is consistent with the intent of Parliament. Parliament enjoys jurisdiction over immigration pursuant to subsection 91(25) of the Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3 reprinted in R.S.C. 1985, App. II, No. 5. As such, it has the authority to enact legislation regarding immigration and to change former processes and proceedings. No one enjoys a vested right in the law remaining the same; see the decision in Gustavson Drilling (1964) Ltd. v. Canada (Minister of National Revenue), [1977] 1 S.C.R. 271. This principle was applied in the immigration legal context in McAllister v. Canada (Minister of Citizenship and Immigration) (1996), 108 F.T.R. 1.

[Emphasis added]

[36]           No court order was made in this case. The settlement took place privately between the parties, and no Court order was issued. Accordingly, I do not find that the 2009 settlement agreement caused the application to fall into the exception in subsection 87.4(2), and I do not find any case law to support such a proposition – including that of the Federal Court of Appeal in Tabingo and the decisions of my Federal Court colleagues cited above.

[37]           I find that the Applicant’s FSW application was terminated by operation of law, effective March 29, 2012.

VIII.       Remedy

[38]           The Applicant argues that she was entitled to timely processing of her application, and that she is therefore entitled to an order of mandamus to compel processing of her application.  However, the court cannot order mandamus of a terminated application. As Justice Rennie found at paragraph 23 of Tabingo, affirmed on appeal:

[…] The meaning and effect of the word 'terminated' is clear. Section 87.4, by its terms, is explicitly designed to apply retrospectively to applications dated before February 27, 2008 and to eliminate the obligation to further process pending applications. The plain and obvious meaning of section 87.4 requires that the provision be retrospective and interfere with vested rights, regardless of any perceived unfairness. The three presumptions relied on by the applicants are displaced by the clarity of Parliament's intention.

[Emphasis added]

[39]           Justice Rennie also wrote the following at paragraph 140, in response to arguments which are similar to those in this case:

The applicants have argued that, even before section 87.4 came into force, the respondent had already breached their rights to timely processing of their applications and that there must be some remedy for this past breach. This argument fails as mandamus cannot remedy a past breach when there is no present duty.

[40]           Finally, also applicable to the arguments being made in this case is paragraph 147, where Justice Rennie stated:

[…T]he applicants have waited in the queue for many years only to find the entrance door closed. They see the termination of their hope for a new life in Canada to be an unfair, arbitrary and unnecessary measure. However, section 87.4 is valid legislation, compliant with the rule of law, the Bill of Rights and the Charter. The applications have been terminated by operation of law and this Court cannot order mandamus.

[Emphasis added]

[41]           Justice Phelan echoed this conclusion in Liu v MCI, 2014 FC 42, where he concluded at paragraph 22: “the result may be unfair in the view of many but that is the result that Parliament intended and specifically provided for.”  Justice Russell came to the same conclusion in Shukla, when he found at paragraph 42:

To grant such an order, in my opinion, and in the words of the Supreme Court of Canada in Trecothic Marsh [(1905), 37 SCR 79], "would clearly be overriding the statute and defeating the intention of the law-giver." It would amount to the Court extending its jurisdiction in opposition to the law and the clear intention of Parliament.

IX.             Conclusion

[42]           I have no grounds to find differently than has the Court in analogous situations. Due to the termination of the visa process, the procedural fairness issue on the English test also falls away, as does the issue of bias raised by the Applicant due to the lengthy processing times.

[43]           This application for judicial review is dismissed.  There are no certified questions.

JUDGMENT

THIS COURT’S JUDGMENT is that this application for judicial review is dismissed.  There are no certified questions.

"Alan Diner"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-3613-13
STYLE OF CAUSE:	JULIE EGBUFOR EBI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	Toronto, Ontario
DATE OF HEARING:	November 13, 2014
JUDGMENT and reasons:	DINER J.
DATED:	JANUARY 6, 2015

APPEARANCES:

John A. Agwuncha	FOR THE APPLICANT
Martin Anderson	For The Respondent

SOLICITORS OF RECORD:

John A. Agwuncha Barrister and Solicitor Toronto, Ontario	FOR THE APPLICANT
William F. Pentney Deputy Attorney General of Canada	For The Respondent

ANNEX A

Immigration and Refugee Protection Act (S.C. 2001, c. 27)

PART 1 IMMIGRATION TO CANADA

Division 1 Requirements and Selection

Requirements

Immigration and Refugee Protection Regulations (SOR/2002-227)

Division 2 Applications