OMNIBUS BUDGET BILL, C-38
- Thread starter Mancilla
- Start date
IMM-7502-11 FEDERAL COURT
BETWEEN:
MOHAMMAD MEHDI EMAM Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent
PROTOCOL REGARDING FSW MANDAMUS LITIGATION
A. BACKGROUND
1. Amendments to the Immigration and Refugee Protection Act in February 2008 (via the Budget Implementation Act or “Bill C-50”) removed the legal obligation of CIC to process every application or request received. The amendments also empowered the Minister to establish, through Ministerial Instructions, priorities for processing applications and requests according to Government of Canada goals for immigration, and to set the conditions for reduced wait times and greater system efficiency.
2. On November 29, 2008, the Government of Canada published in the Canada Gazette the first Ministerial Instructions issued by the Minister of Citizenship and Immigration under subsection 87.3 of the Immigration and Refugee Protection Act (“MI-1”). MI-1 applied to applications and requests received on or after February 27, 2008, and limited the processing of new Federal Skilled Worker applications to those that met eligibility criteria, including whether an applicant had experience in one or more of 38 in-demand occupations. In addition to the priority occupation list, MI-1 included two other eligibility criteria for new FSW applications based on labour market responsiveness: (1) whether an applicant had an arranged offer of employment and, (2) whether an applicant was legally residing in Canada as a temporary foreign worker or international student. MI-1 provided for prioritized processing of eligible new applications.
3. On 26 June 2010, the Minister introduced a second set of Ministerial Instructions (“MI-2”). These new instructions included an updated list of in-demand work experience under which new applicants were eligible to apply for processing. They also introduced intake caps on new applications. A maximum of 1,000 applications per specified occupation would be processed, and an overall cap of 20,000 was imposed on new FSW applications during the 1 July 2010 – 30 June 2011 processing year.
4. On June 27, 2011, a third set of Ministerial Instructions (“MI-3”) were issued. These instructions further reduced intake of new FSW applications, introducing an overall annual cap of 10,000 new applications, with sub-caps of 500 applications per eligible occupation. The list of eligible occupations introduced in MI-2 was not changed.
5. Applicants who have applied under the list of eligible occupations introduced under MI-2 have highest processing priority, followed by those individuals who have applied under MI-1. Applications submitted prior to the enactment of Bill C-50 continue to be processed, albeit with lesser priority.
B. TWO CATEGORIES OF LITIGANTS
6. This mandamus litigation concerns two categories of FSW visa applicants: those who applied before 27 February 2008, i.e., pre-Bill C-50 (“Class I”), and those who applied between 27 February 2008 and 25 June 2010, i.e. MI-1 applicants (“Class II”). Of the first 560 litigants, 76% are Class I applicants and 24% are Class II applicants.
C. COMMON ISSUES
7. The Applicants are applying for mandamus on the basis that their FSW applications remain outstanding.
8. For the Class I contingent, the Applicants are challenging the Minister's departure from the processing practice that was in place when they applied. That practice was generally on a first-in-first-out (FIFO) per visa post processing policy, with exceptions and variations for file specific reasons.
9. For the Class II litigants, the Applicants allege that the Minister represented that their applications under MI-1 would be processed within one year. They also take issue with the decision to accord higher priority to the processing of applications received after 26 June 2010.
10. The Minister’s position in both cases is that Ministerial Instructions, authorized by Bill C-50, are a legally valid approach to processing FSW applications and that the preconditions for the issuance of mandamus have not been met.
D. REPRESENTATIVE CASES
11. Both parties agree that proceeding by way of representative cases would be the most efficient method of determining the common issues.
12. There will be two representative cases – one from each of the two classes listed above. The Applicants will choose a representative case from each class.
13. If the Court disposes of the representative cases on the basis of the Ministerial Instructions, the Applicants agree that this would therefore result in all the applications being dismissed. Accordingly, the other Applicants will discontinue their applications should the Federal Court’s decision not be appealed to the Federal Court of Appeal.
14. If the Respondent’s arguments fail, the Respondent will be guided by the decisions in the representative cases, subject to appeal rights being exhausted, on the possible disposition of the remaining cases held in abeyance.
E. TIMELINE FOR PERFECTION OF APPLICATIONS
15. The timeline set out in the Federal Courts Immigration and Refugee Protection Rules (the “Rules”) will be followed, that is, the Applicants will have 30 days from the date of the transmission of the Certified Tribunal Records to serve and file their application records in the two representative cases. The Respondent will have 30 days from the date of service of the Applicants’ application records to file his memorandum of argument and supporting affidavit(s).
16. Should the Court grant leave, the procedures mandated by the Rules shall be followed, except that the time for service and filing of the Applicants’ further memorandum of argument, if any, shall, if cross-examinations occur, be 15 days from the date of production of the transcript(s). The time for service and filing of the Respondent’s further memorandum of argument shall be 15 days following service of the Applicants’ memorandum of argument.
17. Pending the outcome of the representative cases, all other related cases shall be held in abeyance, along with any new applications for leave and judicial review subsequently filed and brought to the attention of the Case Management Judge. The Respondent shall continue to be relieved of the requirement to file a Notice of Appearance in any new leave application filed.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Dated at Toronto this 3rd day of February, 2012
BETWEEN:
MOHAMMAD MEHDI EMAM Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent
PROTOCOL REGARDING FSW MANDAMUS LITIGATION
A. BACKGROUND
1. Amendments to the Immigration and Refugee Protection Act in February 2008 (via the Budget Implementation Act or “Bill C-50”) removed the legal obligation of CIC to process every application or request received. The amendments also empowered the Minister to establish, through Ministerial Instructions, priorities for processing applications and requests according to Government of Canada goals for immigration, and to set the conditions for reduced wait times and greater system efficiency.
2. On November 29, 2008, the Government of Canada published in the Canada Gazette the first Ministerial Instructions issued by the Minister of Citizenship and Immigration under subsection 87.3 of the Immigration and Refugee Protection Act (“MI-1”). MI-1 applied to applications and requests received on or after February 27, 2008, and limited the processing of new Federal Skilled Worker applications to those that met eligibility criteria, including whether an applicant had experience in one or more of 38 in-demand occupations. In addition to the priority occupation list, MI-1 included two other eligibility criteria for new FSW applications based on labour market responsiveness: (1) whether an applicant had an arranged offer of employment and, (2) whether an applicant was legally residing in Canada as a temporary foreign worker or international student. MI-1 provided for prioritized processing of eligible new applications.
3. On 26 June 2010, the Minister introduced a second set of Ministerial Instructions (“MI-2”). These new instructions included an updated list of in-demand work experience under which new applicants were eligible to apply for processing. They also introduced intake caps on new applications. A maximum of 1,000 applications per specified occupation would be processed, and an overall cap of 20,000 was imposed on new FSW applications during the 1 July 2010 – 30 June 2011 processing year.
4. On June 27, 2011, a third set of Ministerial Instructions (“MI-3”) were issued. These instructions further reduced intake of new FSW applications, introducing an overall annual cap of 10,000 new applications, with sub-caps of 500 applications per eligible occupation. The list of eligible occupations introduced in MI-2 was not changed.
5. Applicants who have applied under the list of eligible occupations introduced under MI-2 have highest processing priority, followed by those individuals who have applied under MI-1. Applications submitted prior to the enactment of Bill C-50 continue to be processed, albeit with lesser priority.
B. TWO CATEGORIES OF LITIGANTS
6. This mandamus litigation concerns two categories of FSW visa applicants: those who applied before 27 February 2008, i.e., pre-Bill C-50 (“Class I”), and those who applied between 27 February 2008 and 25 June 2010, i.e. MI-1 applicants (“Class II”). Of the first 560 litigants, 76% are Class I applicants and 24% are Class II applicants.
C. COMMON ISSUES
7. The Applicants are applying for mandamus on the basis that their FSW applications remain outstanding.
8. For the Class I contingent, the Applicants are challenging the Minister's departure from the processing practice that was in place when they applied. That practice was generally on a first-in-first-out (FIFO) per visa post processing policy, with exceptions and variations for file specific reasons.
9. For the Class II litigants, the Applicants allege that the Minister represented that their applications under MI-1 would be processed within one year. They also take issue with the decision to accord higher priority to the processing of applications received after 26 June 2010.
10. The Minister’s position in both cases is that Ministerial Instructions, authorized by Bill C-50, are a legally valid approach to processing FSW applications and that the preconditions for the issuance of mandamus have not been met.
D. REPRESENTATIVE CASES
11. Both parties agree that proceeding by way of representative cases would be the most efficient method of determining the common issues.
12. There will be two representative cases – one from each of the two classes listed above. The Applicants will choose a representative case from each class.
13. If the Court disposes of the representative cases on the basis of the Ministerial Instructions, the Applicants agree that this would therefore result in all the applications being dismissed. Accordingly, the other Applicants will discontinue their applications should the Federal Court’s decision not be appealed to the Federal Court of Appeal.
14. If the Respondent’s arguments fail, the Respondent will be guided by the decisions in the representative cases, subject to appeal rights being exhausted, on the possible disposition of the remaining cases held in abeyance.
E. TIMELINE FOR PERFECTION OF APPLICATIONS
15. The timeline set out in the Federal Courts Immigration and Refugee Protection Rules (the “Rules”) will be followed, that is, the Applicants will have 30 days from the date of the transmission of the Certified Tribunal Records to serve and file their application records in the two representative cases. The Respondent will have 30 days from the date of service of the Applicants’ application records to file his memorandum of argument and supporting affidavit(s).
16. Should the Court grant leave, the procedures mandated by the Rules shall be followed, except that the time for service and filing of the Applicants’ further memorandum of argument, if any, shall, if cross-examinations occur, be 15 days from the date of production of the transcript(s). The time for service and filing of the Respondent’s further memorandum of argument shall be 15 days following service of the Applicants’ memorandum of argument.
17. Pending the outcome of the representative cases, all other related cases shall be held in abeyance, along with any new applications for leave and judicial review subsequently filed and brought to the attention of the Case Management Judge. The Respondent shall continue to be relieved of the requirement to file a Notice of Appearance in any new leave application filed.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Dated at Toronto this 3rd day of February, 2012
hopefulever
Hero Member
- Feb 11, 2012
- 2
- Category........
- Visa Office......
- NDLS
- NOC Code......
- 4131
- Job Offer........
- Pre-Assessed..
- App. Filed.......
- 10-07-2004
- Doc's Request.
- Nov 2008
what was the ruling for the hearing held on 30th of july for 900 litigants in the court of Honry Justice Bernes?