Mootness

The doctrine of mootness is an aspect of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question. It applies when the decision of a court will not have the effect of resolving a live controversy which affects or may affect the rights of the parties.
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Mandamus Orders

Photo by Travis Nep Smith.
Photo by Travis Nep Smith.

In a previous post I touched upon mandamus orders, and have since gotten numerous e-mails inquiring as to whether or not their case warranted the filing of an Application for a Mandamus Order.

What is a Mandamus Order?

mandamus order is a judicial command to a government body to do or forbear from doing a specific act which it is obligated in law to do.

The Federal Court’s decision in Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159, is probably the most cited case in the immigration context for setting forth the test for when a mandamus order will be given.  There, Justice Snider stated:

The equitable remedy of mandamus lies to compel the performance of a public legal duty that a public authority refuses or neglects to carry out when called upon to do so. Mandamus can be used to control procedural delays (Blencoe v. British Columbia (Human Rights Commission) [2000] 2 S.C.R. 307 at para. 149). The test for mandamus is set out in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), aff’d [1994] 3 S.C.R. 1100 (and, more recently, discussed in the immigration context in Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189 (T.D.), aff’d [2003] F.C.J. No. 813, 2003 FCA 233,). The eight factors are:

(i)  There must be a public legal duty to act;

(ii)  The duty must be owed to the Applicants;

(iii)  There must be a clear right to the performance of that duty, meaning that:

a.  The Applicants have satisfied all conditions precedent; and

b.  There must have been:

I.  A prior demand for performance;

II.  A reasonable time to comply with the demand, unless there was outright refusal; and

III. An express refusal, or an implied refusal through unreasonable delay;

(iv)  No other adequate remedy is available to the Applicants;

(v)  The Order sought must be of some practical value or effect;

(vi)  There is no equitable bar to the relief sought;

(vii)  On a balance of convenience, mandamus should lie.

Generally, all eight of the above factors must be met before a court will issue an order mandamus.  Prior to filing one of our last mandamus application, we made three written requests for the performance of what we considered to be the legal duty of the Canada Border Services Agency to act immediately.  We also filed a lengthy memorandum of law articulating what the legal duty was, why it was owed, and that the balance of convenience favored our client.  The Canada Border Services Agency ultimately performed that duty after being recommended to do so by their lawyer prior to us proceeding to a full hearing.

Mandamus in Permanent Resident Applications

In the Vaziri decision, recently affirmed in  Abdalla v. Canada (Citizenship and Immigration), 2011 FC 988, the Federal Court noted that mandamus would generally not be issued to process permanent residence applications because of the alternative remedy of the applicant obtaining a visitor visa.  The court stated that:

The Applicants contend that the only way for them to have “secure immigration status” is to have their applications finalized. The Respondent argues that the Applicants may take advantage of Temporary Resident Visas (TRVs) in order to reunite family members while the PR assessment process continues. These visas (often referred to as visitor visas) are obtained quickly and easily, they can be valid for fixed periods of time and they may be renewed. Our Court has found in past cases that temporary resident status, or its analogue under the repealed Immigration Act, can fulfil the objective of IRPA to reunite families (see Gupta v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1099 at para. 11 (T.D.) (QL); Zhang v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 529, 2005 FC 427, at para. 8).

As evidenced by the affidavits filed by the Applicants, the Applicants appear to premise their arguments on the desire to be reunited after many years apart. Through the use of TRVs, the father and son have at least one other way of being united. While the PR applications are being assessed, TRVs may provide interim relief

While I appreciate that the Applicants live with uncertainty while the PR applications are being resolved, and that TRVs do not provide the same security or rights as permanent resident status, the use of TRVs is an alternative that is adequate — albeit not perfect. There is no pressing need in this case that the rights vested by PR status be acquired as soon as possible.

(There are of course exceptions to the above which are beyond the scope of this post.)

Lengthy Wait Times and Queue Jumping

Another, and probably the most significant, reason for mandamus applications being rejected is because of how accepted long wait-times are in immigration law.  Hence my previous post titled “A Two Year Delay will Not Necessarily Result in an Order Mandamus.”

As well, as recently confirmed by the Federal Court in Mersad v. Canada (Citizenship and Immigration), 2014 FC 543, mandamus will generally not be ordered where the effect of such an order would be to simply favour one application over others.

Nonetheless, while mandamus should never be used as a first resort, it is an extremely effective last one, and when used properly can be very effective at moving a file along.

Specific Results

It is also important to note that an application for mandamus is to require that the administrative tribunal make a decision.  As the Federal Court of Appeal noted in Dass v. Canada (Minister of Employment and Immigration), it is not the purpose of mandamus “to require a specific decision but rather to require that a decision be taken.”  For example, if there is an unreasonable CIC delay in processing an application, the Federal Court will not order that CIC process and approve the application, only that they process it.


The Right of Permanent Resident Visa Holders to Appeal to the IAD

On June 5, 2015, the appellants in Elham Fathy Elsayed Ismail et al v. Minister of Citizenship and Immigration, A-203-15, discontinued their appeal of the Federal Court’s decision in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“).  This is unfortunate because the question that Justice de Montigny certified needs to be answered.  That question was:

For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada or at the time the exclusion order is made?

The question is important because it addresses a growing tendency of the Canada Border Services Agency (“CBSA“) to defer the examination of foreign nationals possessing permanent resident visas seeking to become permanent residents where CBSA suspects that the foreign nationals may not be admissible to Canada, rather than preparing an inadmissibility report.  During the deferral period, the CBSA will then contact Citizenship and Immigration Canada (“CIC”), who, often without providing the prospective permanent resident with any notice, cancel the permanent resident visa.  CBSA can then deny entry to Canada on the basis that the person does not have a valid permanent resident visa rather than for the underlying possible inadmissibility.  Many immigration practitioners have suspected that the reason for this is to prevent the prospective permanent resident from having a right of appeal to the Immigration Appeal Division (the “IAD“).

The Federal Court’s decision in Ismail in my opinion raised more questions than it answered, and it is unfortunate that the question will remain murky until the question is again certified in the future.

Continue reading “The Right of Permanent Resident Visa Holders to Appeal to the IAD”


The Beyond the Border Initiative – ETA, Information Sharing, Tracking Exits

[The following is a slightly edited (to include links) version of an article that I wrote for The Canadian Immigrant.]

In February 2011, Canada and the United States agreed to the Beyond the Border: A Shared Vision for Perimeter Security and Economic Competiveness. More commonly known as the Beyond the Border Action Plan, the effect of the agreement was to strengthen co-operation and, in some cases, harmonize Canadian and American immigration practices.

The Government of Canada has begun enthusiastically implementing the terms of the Beyond the Border Action Plan, and will in 2014-2015 introduce three significant changes to Canadian immigration legislation that will impact almost everyone who enters Canada.

Electronic travel authorization

People who wish to visit Canada generally fall into one of two categories:  those who need to apply for and obtain temporary resident visas prior to arriving in Canada; and those who can arrive at Canadian ports of entry without first obtaining a visa. This will change in April 2015, when Canada implements the electronic travel authorization (“eTA”) system.

All foreign nationals who are exempt from the requirement to obtain a temporary resident visa will instead need to obtain online authorization before they fly to Canada.  This includes Europeans, Australians, Japanese, Koreans, etc. Citizens from the United States, however, are exempt.

The eTA application process will be online via the Citizenship and Immigration Canada (CIC) website. Applicants will be required to enter biographic, passport and background information, which may affect admissibility to Canada. An electronic system will then perform an examination that includes a risk assessment and a verification of the information provided in the application against enforcement databases. The Government of Canada expects that the majority of applications will be approved within minutes.

Airlines will have to provide passenger information to Canadian immigration authorities prior to boarding. If an individual who has not yet received an eTA attempts to check in, then the airline will be informed that the person is prohibited from travelling to Canada.

Sharing information

As I have previously written in Canadian Immigrant, biometric-based immigration information sharing with the United States will be implemented in 2014.

Canada and the United States will use the shared information to support each government’s assessment of visa applications, examinations of admissibility, and to generally ensure accuracy and reliability. Where a biometric match is established, the information that may be shared includes the immigration status of the individual, reasons for previous refusals, previous admissibility decision and general information relevant to admissibility.

In other words, whenever you apply to enter the United States, you should assume that CIC will know the details.

Tracking exits

Despite having numerous immigration programs that contain residency requirements, Canada has not collected exit information to date. As such, as part of the Beyond the Border Action Plan, Canada has committed that by June 30, 2014, it will systematically collect and reconcile entry and exit information. Airlines will be required to provide passenger information to the Government of Canada. The United States will soon be sharing its entry information with Canada, which will reconcile it to track exits.

Tracking exits will allow CIC to readily identify persons who overstay (and who previously overstayed) their visa. It will allow them to track the departure of persons subject to removal orders. It will immediately verify that residency requirements are being met by permanent residents.

Big impact
These changes are going to impact everyone who enters Canada. The amount of personal information that is going to be collected and shared across governments will be immense. Travellers have frequently liked to compare and contrast the entry and exist procedures of Canada and the United States.  By the end of 2015, they may find that it is almost exactly the same.


Introducing a Residency Requirement for Social Transfers

The Federal-Provincial Fiscal Arrangements Act (the “FPFAA“) establishes the Canada Social Transfer, a federal block transfer to provinces and territories to support post-secondary education, social assistance, social services, early childhood development, and early learning.   In 2014-15 the total Canada Social Transfer transferred to all provinces and territories will be almost $12.6 billion.

The FPFAA stipulates that one of the objectives of the Canada Social Transfer is to maintain a national standard in which no period of minimum residency is required or allowed for an individual to receive social assistance, and the current version of s. 25.1 of the FPFAA achieves this by stipulating that:

Criteria for eligibility — Canada Social Transfer

25.1 In order that a province may qualify for a full cash contribution under [the Canada Social Transfer] for a fiscal year, the laws of the province must not

(a) require or allow a period of residence in the province or Canada to be set as a condition of eligibility for social assistance or for the receipt or continued receipt of social assistance; or

(b) make or allow the amount, form or manner of social assistance to be contingent on a period of such residence.

In other words, provinces and territories cannot currently impose a minimum period of residence on the receipt of social assistance without a reduction in their Canada Social Transfer payments.

One of the measures in the Conservative Government of Canada’s second Omnibus Bill titled “A Second Act to Implement Certain Provisions of the Budget Tabled in Parliament on February 11, 2014 and other measures” (the “Budget Implementation Act“) would modify this national standard to clarify that provinces only cannot impose residency requirements on the following people:

  1. Canadian citizens;
  2. Permanent residents;
  3. Persons who have been determined to be victims of human trafficking and who hold Temporary Resident Permits; and
  4. Convention refugees and people who are persons in need of protection.

The consequence of the Budget Implementation Act is accordingly that some provinces may introduce residency requirements for foreign nationals, including refugee claimants, before they can receive social assistance.

Continue reading “Introducing a Residency Requirement for Social Transfers”


Court Certifies Numerous Questions in Dismissal of Skilled Worker Class Action [Updated – Federal Court of Appeal Dismisses Appeal]

In Tabingo c. Canada (Citizenship and Immigration), 2013 FC 377, the Federal Court (the “Court“) certified three questions when it dismissed the class action lawsuit launched by people whose permanent residence applications were terminated by Bill C-38, the Jobs Growth and Long-term Prosperity Act (“Bill C-38“).  Bill C-38 introduced a new s. 87.4(1) (“Section 87.4(1)“)to the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA“) ,which terminated Federal Skilled Worker Class applications made before February 27, 2008 unless an officer had made a selection decision before March 29, 2012.

Section 87.4(1) reads:

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).

The Court’s certified questions are:

  1. Does subsection 87.4(1) of the IRPA terminate by operation of law the applications described in that subsection upon its coming into force, and if not, are the applicants entitled to mandamus?
  2. Does the Canadian Bill of Rights mandate notice and an opportunity to make submissions prior to termination of an application under subsection 87.4(1) of the IRPA?
  3. Is section 87.4 of the IRPA unconstitutional, being contrary to the rule of law or sections 7 and 15 the Canadian Charter of Rights and Freedoms?

Does subsection 87.4(1) of the IRPA terminate by operation of law the applications described in that subsection upon its coming into force, and if not, are the applicants entitled to mandamus?

The applicants argued that Section 87.4 did not apply retrospectively to interfere with vested rights, and that it did not operate to terminate the applications as a matter of law.  Rather, they argued that individualized adjudication must follow to determine which applications were encompassed.

In rejecting this argument, the Court reiterated that the principles of statutory interpretation are that courts will not interpret legislation in a manner that removes existing rights or entitlements unless Parliament’s intention to do so is clear.  However, when a statute is unambiguous the courts have to interpret it according to its ordinary meaning.  On the issue of Section 87.4, the Court wrote:

Here, the ordinary meaning of the provision governs.  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.  Further, to interpret the section otherwise would leave it without any effect beyond refunding the application fee.

The Court further held that Section 87.4 entailed a non-discretionary application of law to verifiable and incontrovertible facts.

Does the Canadian Bill of Rights mandate notice and an opportunity to make submissions prior to termination of an application under subsection 87.4(1) of the IRPA?  

Subsection 1(a) of the Bill of Rights protects the right not to be deprived of property except by due process of law.  Subsection 2(e) guarantees a fair hearing for the determination of rights and obligations.  The applicants argued that Section 87.4(1) of IRPR breached both of these requirements.

On the latter issue, the Court determined that due process protections of the Bill of Rights do not apply to legislative enactments, and that the Bill of Rights only guarantees the fairness of proceedings before a tribunal or administrative body that determines rights and obligations.  In reaching this decision, the Court relied on the following passage from the Supreme Court of Canada’s decision in Authorson v Canada (Attorney General):

Similarly, s. 1(a) may be seen as conferring procedural protections against the deprivation of property that existed in 1960.  Certain procedural rights in this regard have long been recognized.  In Lapointe v. Association de Bienfaisance et de Retraite de la Police de Montréal, [1906] A.C. 535, the Privy Council recognized a right to have notice of accusations made and an opportunity to make a defence where the board of directors of a pension board stripped a police officer, who had resigned, of his pension.  Where the law requires the application of discretion or judgment to specific factual situations, notice and an opportunity to contest may be required.  For example, such rights may exist where the government eliminates a veteran’s benefits because it believes he is no longer disabled, or because it believes he was never a member of the armed forces.  However, notice and an opportunity to make a defence are not required where the government legislates to completely eliminate such benefits.

The Court also found that submitting an economic immigration application did not vest any rights in an applicant, but rather was a mere chance to gain access to economic opportunities in Canada.

Is section 87.4 of the IRPA unconstitutional, being contrary to the rule of law or sections 7 and 15 the Canadian Charter of Rights and Freedoms?

After extensive obiter about whether the applicants could even claim to be entitled to Charter protection, the Court ruled that it did not matter in any event because Section 87.4(1) of IRPA did not breach the Charter.  

Regarding s. 7, the Court found that it was primarily (though not exclusively) concerned with the rights of individuals in the criminal justice context, including rights on search, seizure, detention, arrest, trial and imprisonment, as well as in the non-criminal contexts of the freedom to make fundamental personal choices, and the freedom to physical and pyschological integrity.

The Court further stated, however, that it did not extend to immigration, as the ability to immigrate, particularly as a member of an economic class, is not among the fundamental choices relating to personal autonomy which would engage s. 7 of the Charter.  To paraphrase, while immigration may have life-altering consequences, the possibility of immigrating to Canada as a successful economic applicant does not engage life or liberty interests.

Regarding s. 15, the applicants argued that Section 87.4 codified and legitimized past discrimination on the basis of national origin and country of residence.  The evidence was that approximately 92% of the terminated applications originated in Africa, the Middle East, Asia and the Pacific, while 8% of the terminated applications originated in Europe and the Americas.  However, the Court found that the fact that immigrants arrive from all over the world, that Citizenship and Immigration Canada tried to address backlogs by transferring processing, and that people from all over the world living in Canada could (then) apply to the Canadian Consulate in Buffalo, showed that there was no discrimination.

Conclusions

Considering that around 1,000,000 people were affected by the Tabingo decision, it is not surprising that the Court certified the above three questions.  The matter is now on its way to the Federal Court of Appeal.

[UPDATE – September 17, 2014] 

The FCA has dismissed the appeal. More to follow.

http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/73144/index.do


The Doctrine of Legitimate Expectations [Updated – July 17, 2014]

The doctrine of legitimate expectations is a procedural doctrine which has its source in the common law. Because the doctrine of legitimate expectations is a common law principle, it does not create substantive rights.
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Four Case Comments

Sharifi v. Canada (Citizenship and Immigration), 2013 FC 453

This was a FSWP case involving an officer who refused a marine engineer’s application because the officer did not think that the applicant had demonstrated that he performed the main duties of NOC 7132.  In overturning the decision, the Federal Court judge (who prior to becoming a judge was a marine lawyer) stated that the officer did not demonstrate the expertise required of a visa officer.

The following two paragraphs are the most interesting part of the decision:

Furthermore, decision-makers are entitled to deference because of their expertise. The visa officer should be taken to know the functions of a third engineer, even if they had not been spelled out.

Consequently, the visa officer is taken to know the Marine Personnel Regulations issued under the Canada Shipping Act, 2001. He would know that a fourth class engineer has at least six months of sea service as an engineer in charge of machinery on vessels that have a propulsive power of at least 500 kW, has attended various training courses and has successfully been examined with respect to applied mechanics, thermodynamics, electro technology, engineering knowledge of motor vessels and steamships and, once again, much, much more.

Perhaps the Federal Court of Appeal, and eventually the Supreme Court of Canada, will consider this case when they determine whether the standard of review for questions of law in immigration matters is reasonableness or correctness.

Zhou v. Canada (Citizenship and Immigration), 2013 FC 465

This case involved a wealthy Chinese individual whose application for a Temporary Resident Visa was refused.  While the Court was critical of much of the officer’s decision, it ultimately determined that it was reasonable for the officer to determine that the applicant’s documents were insufficient because they were not originals as required by the document checklist.  The Court found that this was not an issue of credibility requiring the officer to provide the applicant with an opportunity to respond to the officer’s concerns, but rather was one of simply failing to follow the checklist.

The message is clear. Follow the checklist.

Okomaniuk v. Canada (Citizenship and Immigration), 2013 FC 473

There are many interesting features of this case involving membership in a group which committed espionage, however, the broader points about what essentially amounted to the officer’s fettering of discretion to a Canada Border Services Agency, and procedural fairness involving providing an applicant with sufficient time to respond to a complex allegation will interest all practitioners.

 

Varga v. Canada (Citizenship and Immigration), 2013 FC 494

There isn’t much in terms of broad practice tips in this case involving the court overturning a refugee hearing where the Member asked incredibly inappropriate questions.  But it is an interesting read because of those questions, which included:

The Board member first questioned the applicant’s children in order to establish their identities.  To the applicant’s son, the Board member stated, “Okay, junior let’s see how well you do.”  Later, the Board member asked, “What’s your date of birth? I can’t tell you.  When’s your birthday?  It’s not so easy now. […] What’s your principal’s name?  I’m just egging you on to tell you it wasn’t very easy for your sister to sit there.  It’s not so funny now, is it?  I didn’t think so.”  Further, the Board member asked the boy, “How do you know she’s your mother? […] Are you sitting there naked? What are you wearing?”

..

The Board member questioned the applicant regarding whether she is Roma.  He stated, “I have people that come in here who are fair skin, blonde hair, blue eyes, and then they say they’re Tizigane (ph).  So, how do I know anymore? And, look at me, do I look like I’m Tizigane (ph)?”

The applicant stated that the difference was “the way we talk and there are a lot of…”  The Board member interrupted and again repeated, “I asked about me.  Why don’t I look Tizigane (ph)?  I have dark skin color.  I have dark hair.  I have brown eyes…”  The applicant attempted to explain, “I can see who is gypsy […] Based on the clothes they wear, the gestures…”  Again the Board member insisted, “Okay, I’m talking about me.  I’m not talking about anybody else.  I’m talking about me.  You can’t avoid the question.  You went down that road, so here I am. So, I’m waiting for an answer.  If you don’t want to give an answer, that’s fine.”  The applicant explained that a “gypsy” in Hungary could not be appointed to sit on a tribunal such as the Board, to which the Board member replied, “Okay. So, that’s called avoiding the question again.  Okay, so I take you don’t want to answer the question.  Is that right?”

After further questioning on this topic, the Board member said, “So just for fun would you be able to tell where I’m from?”  The applicant attempted to answer, and the Board member replied, “Not even close, so do you understand now?  If you can’t tell where I’m from, my background, how do I know yours?”

Apparently this went on for three pages of the transcripts.