http://www.cba.org/CBA/submissions/pdf/12-31-04-eng-Division54.pdf
Dear Senator Day and Mr. Rajotte,
Re: Bill C-38, Part 4, Division 54 − Immigration & Refugee Protection Act
I am writing on behalf of the National Immigration Law Section of the Canadian Bar Association
(the CBA Section) to comment on Part 4, Division 54, amending the Immigration and Refugee
Protection Act (IRPA). The CBA is a national association of over 37,000 lawyers, notaries, students
and law teachers, with a mandate to promote improvements in the law and the administration of
justice. The CBA Section comprises lawyers whose practices embrace all aspects of immigration
and refugee law.
Part 4, Division 54 of Bill C-38. would give the government authority to summarily dismiss
approximately 300,000 pending applications for permanent residence in the Federal Skilled
Worker (FSW) class backlogged in CIC’s processing queue since February 20081
. The CBA Section
reiterates its objection to the omnibus style of legislation employed in Bill C-38. The significant
impact and sweeping nature of the changes, and the quick timeframe for its passage, militate
against meaningful comment or debate. The result is that these comments are limited to certain
portions of the Bill, although we have significant concerns about others.2
If the bill is enacted, FSW applications filed before 27 February 2008 will be returned to applicants
along with an estimated $130 million in processing fees − without interest on those fees3
, timely
notice of the change in policy, legal right of remedy or indemnityclasses that would be exempt from regulatory oversight. It introduces intrusive investigatory
powers, and allows for unprecedented, unfettered control by Ministerial instruction over
permanent and temporary resident processing. It would give the Minister power to establish
conditions by category that must be met before or during the processing of an application or
request5
and allows the Minister to retroactively change those conditions and requirements. It also
enumerates additional and far-ranging powers to inspect under the Customs Act6
and confers
powers and duties on the Minister of Human Resources and Skills Development.7
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. In our view, Part 4,
Division 54 should be withdrawn, or at least separated and referred to the Standing Committee on
Citizenship and Immigration for proper study and debate.
A. Omnibus Style of Legislation
The immigration measures in Bill C-38 constitute significant program changes by way of Ministerial
instruction, seriously devolving the Parliamentary process by eliminating meaningful public
engagement. The significant changes and controversial effects of this bill should not be
implemented without thorough public debate. Packaging diverse material into a budget bill (though
its impact is in many areas outside the realm of budgetary considerations) effectively immunizes it
from proper study by Parliamentary committees best informed on the substantive issues.
B. Integrity of the Canadian Immigration System
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.
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.
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. This principle was articulated by the
Supreme Court of Canada in Re Manitoba Language Rights, as follows:
The rule of law, a fundamental principle of our Constitution, must mean at least two things.
First, that the law is supreme over officials of the government as well as private individuals,
and thereby preclusive of the influence of arbitrary power.
…
Second, the rule of law requires the creation and maintenance of an actual order of positive
laws which preserves and embodies the more general principle of normative order”.10
This principle is enunciated in the study guide for citizenship applicants produced by CIC itself:
“One of Canada’s founding principles is the rule of law. Individuals and governments are regulated
by laws and not by arbitrary actions. No person or group is above the law.”11
Bill C-38 enables the government to renege on its promise of prompt processing, accountability and
transparency, all objectives of the Immigration and Refugee Protection Act (IRPA).12
The bill would
authorize the government to arbitrarily extinguish 300,000 applications (to their significant
prejudice), by way of Ministerial instruction. This approach to backlog reduction is anti-democratic,
and contrary to the Rule of Law.
D. Mandamus
Mandamus is a legal remedy whereby an applicant to compel a public body to perform an
obligation imposed on it by statute, whether that body has refused or neglected to perform the duty
when requested to do so.
The landmark case involving mandamus in the immigration context is Dragan v. Canada (Minister of
Citizenship and Immigration)13
. 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.
E. User Fees Act
The User Fees Act is aimed at strengthening accountability, oversight, and transparency in the
government’s management of user fee activities. It mandates the government to take reasonable
steps to notify clients, and provide the clients a reasonable opportunity to respond before services
for which fees are charged may be changed14
. We believe the measures in Part 4, Division 54 of Bill
C-38 violate the User Fees Act. In fact, the bill would exempt the government’s conduct from the
User Fees Act 15
. The laudable objective of the User Fees Act – to hold the government accountable to
its service commitments – should not be undermined. Nor should IRPA’s promise of prompt
processing, accountability and transparency16
.
F. Minister`s Instructions
Bill C-38 is a significant change from previous immigration legislation, giving the Minister the
power to create new sub-classes of economic immigrants and to set or change the rules governing
those sub-classes. Now, economic classes and sub-classes can be created only by regulations after
pre-publication in Canada Gazette and an opportunity for review by a Parliamentary Committee
and for submissions by stakeholders and concerned parties.
This is part of a trend that has emerged in recent years, incrementally increasing Ministerial
powers at the expense of Parliamentary and public oversight.
The Government`s intent is to create a flexible tool that would allow for the timely introduction of
“start-up” classes as pilot projects. The up-to-two years to implement regulatory changes militates
against attempts to introduce untested and creative new mechanisms. We agree that these
provisions may permit testing of creative selection mechanisms. But sufficient controls to ensure
Parliamentary scrutiny and public input must be maintained. We welcome the limits of 2750
applicants per year per class and the five year non-renewable maximum duration on Ministerial
classes. However, we object to a Ministerial power to retroactively change the selection criteria to
affect applications already been filed. This is contrary to basic principles of transparency and
fairness.
G. 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.H. Conclusion and Recommendations
The backlog of pre-February 2008 FSW application is a significant problem for Canada’s
immigration system. It impedes the government’s ability to process what may well be more
desirable immigrants in a timely manner. However, this backlog is entirely the result of policies and
rules introduced by successive governments and compounded by unwillingness to implement
restrictions or change selection criteria when too many people were qualifying under the existing
rules. The current government justifies its course of action by claiming the pre February 2008
applicants are not well suited to Canada’s economic needs and that they have found a way to select
better qualified immigrants. We remember virtually the same arguments and rationale when the
government of the day attempted to retroactively refuse a backlog of Skilled Worker applicants as a
result of the introduction of IRPA.
Even though the backlog presents a significant challenge, we believe that the ends do not justify the
means proposed in Bill C-38. Canada must strive to fashion its law in a manner that preserves its
international reputation as a country of openness while promoting economic, social and cultural
nation-building. Parliament has legislated under section 3(1) of the IRPA that the objectives of
Canada’s immigration program are “to permit Canada to pursue the maximum social, cultural and
economic benefit of immigration.” This means that the potential economic benefits of our
immigration program must be carefully balanced against the social and cultural objectives critical
to our core values as a society. It is in everyone’s interest to achieve faster processing. However,
the potential consequences of the changes proposed by Bill C-38 must be carefully considered to
ensure that the right balance is struck.
The changes contemplated by Bill C-38 will have a profound impact on existing and potential
immigration applicants and also stand to alter the structure and foundation of Canadian lawmaking. A plethora of serious legal issues could arise if Bill C-38 becomes law. At a minimum, these
challenges must be debated meaningfully and comprehensively, with particular emphasis on the
potential consequences to the integrity and functionality of Canada’s immigration system, and our
values and principles as a parliamentary democracy.
The CBA Section recommends that:
1. measures impacting immigration law, including proposed changes to the Customs Act,
the new Integrated Cross-Border Law Enforcement Operations Act and the proposed
expansion of powers for the Minister of Human Resources and Skills Development
Canada, be sent to the House and Senate committees mandated to study immigration
matters, for an examination of impact and potential legal issues.
2. any proposed amendments protect the Parliamentary process and prohibit or restrict
the use of Ministerial Instructions and retroactive amendments that undermine the
regulatory process expressed at section 5(2) of the IRPA.
3. the Government consult with stakeholders and continue to implement effective backlog
reduction, as it has over the past few years.
Yours truly,
(original signed by Tamra L. Thomson for Joshua B. Sohn)
Joshua B. Sohn
Chair, National Immigration Law Section
